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2020 DIGILAW 369 (AP)

Eluri Subba Rao v. State Of Andhra Pradesh

2020-05-20

BATTU DEVANAND

body2020
JUDGMENT Battu Devanand, J. - This criminal petition is filed under Section 482 of the Code of Criminal Procedure R/w Section 451 of the Code of Criminal Procedure Code seeking an order to quash the impugned order dated 11-03-2020 in Crl.M.P.No.3 of 2020 in Crime No.149 of 2018 on the file of the Court of Additional Junior Civil Judge, Narsipatnam, Visakhapatnam in C.C.No.868 of 2019. 2. Heard Sri R. Siva Sai Swarup, learned counsel for the petitioners and the learned Public Prosecutor appearing for the respondent-State. 3. Learned counsel for the petitioners submits that the crime in FIR No.149 of 2018 was registered by the Station House Officer, Narsipatnam Town Police Station for the offences punishable under Section 273 of Indian Penal Code, 1860 and under Section 22 R/w 5(1) of Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act (for short "the Act") and arrested the petitioners, who are the accused Nos.1 and 2 in the said case and seized 104 bags of Raja Khaini, Meeraj Khaini and Deluxe bags under cover of a report dated 29-09-2018. During the FIR stage, the 2nd petitioner/A.2 herein filed Criminal Petition No.404 of 2018 to quash the FIR and this Court by its order dated 31-01-2019 quashed the FIR against him. Subsequently, the police filed a charge sheet which was numbered as C.C.No.868 of 2019 and the same was quashed by this Court by its order dated 13-12-2019 in Criminal Petition No.6255 of 2019. 4. Learned counsel for the petitioners submits that in view of the entire case is quashed by this Court and there is no crime pending as against the petitioners, the petitioners filed a Criminal Petition before the Additional Junior Civil Judge, Narsipatnam under Section 452(2) of Cr.P.C. praying to return of the seized property. The Court below passed order dated 11-03-2020 directing the Station House Officer, Narsipatnam Town Police Station to follow the directions given by the Hon'ble High Court in the above said criminal petitions which were communicated to the Station House Officer by the Hon'ble High Court and submit the same after disposal of the case property. 5. The Court below passed order dated 11-03-2020 directing the Station House Officer, Narsipatnam Town Police Station to follow the directions given by the Hon'ble High Court in the above said criminal petitions which were communicated to the Station House Officer by the Hon'ble High Court and submit the same after disposal of the case property. 5. The contention of the learned counsel for the petitioners is that as there is no any specific direction in the order of the Court below to return the property, they are constrained to approach this Hon'ble Court by filing the present petition. 6. Having heard the submissions of the learned counsel for the petitioners and the learned Public Prosecutor, on perusing the grounds raised in this criminal petition and the documents filed herewith, the following admitted facts are noticed: While Accused No.2 who is the driver of the Lorry has been transporting the Tobacco products in a lorry, the same was anticipated by the police and they have seized the Tobacco products and registered a case against Accused Nos.1 and 2 for the offences punishable under Section 273 of Indian Penal Code, 1860 and under Section 22 R/w 5(1) of Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act. The accused were arrested and subsequently they were enlarged on bail. Thereafter the 2nd petitioner/A.2 filed Criminal Petition No.404 of 2019 to quash the FIR and this Court by its order dated 31-01-2019 quashed the FIR No.149 of 2018 with respect to the 2nd petitioner/A.2. Subsequently, police filed charge sheet in the said crime which was numbered as C.C.No.868 of 2019 and the 1st petitioner/A.1 filed Criminal Petition No.6255 of 2019 to quash the said charge sheet and this Court by its order dated 13-12-2019 quashed the charge sheet in C.C.No.868 of 2019. Subsequently, the petitioners approached the Additional Junior Civil Judge, Narsipatnam and filed a petition under Section 452(2) of Cr.P.C. in Crl.M.P.No.3 of 2020 for return of the seized property. The learned Magistrate allowed the said criminal petition directing the concerned Station House Officer to follow the directions given by the Hon'ble High Court in Criminal Petition Nos.404 of 2019 and 6255 of 2019. The learned Magistrate allowed the said criminal petition directing the concerned Station House Officer to follow the directions given by the Hon'ble High Court in Criminal Petition Nos.404 of 2019 and 6255 of 2019. As such, it is clear that though the learned Magistrate passed order in Crl.M.P.No.3 of 2020 in C.C.No.868 of 2019 by allowing the same, there is no specific direction to the concerned to return the property in view of the quashing the entire case by the Hon'ble High Court. 7. It is relevant to note here that admittedly the property was seized from the possession of the petitioner No.2, who was shown as Accused No.2 who was transporting the same in a lorry on behalf of the petitioner No.1, who was shown as Accused No.1 in Crime No.149 of 018 of Narsipatnam Police Station. The criminal case registered in connection with the said transportation of Tobacco products has been quashed by this Hon'ble Court as discussed supra. When once the criminal proceedings came to an end on account of quashing the said proceedings, the possession of the property that was seized from the accused in connection with the said crime is to be returned to the accused. 8. Under Section 452 Cr.P.C: Clause (2) of Section 452 Cr.P.C. clearly envisages that an order for delivery of property can be made to any person claiming to be entitled to the possession thereof. Since the said property is seized from the accused as they are now claiming possession of the said property, the same is to be delivered to the petitioners, particularly, when there are no rival claimants for the said property. As no such contingency arose in this case, when the property is seized from the possession of the accused, the same is to be delivered to the petitioners. 9. In fact, in similar set of facts, this Court in Criminal Petition No.11144 of 2018 while setting aside the order of the learned Magistrate, held as under: "...Property was seized from the possession of the petitioner while he was transporting the same and when such transportation of such property is not found to be an offence, property has to be returned for carrying on the transportation. If any crime, as apprehended by the Public Prosecutor, takes place, it is for the concerned to take action, as permitted by law." 10. If any crime, as apprehended by the Public Prosecutor, takes place, it is for the concerned to take action, as permitted by law." 10. The present criminal petition also stands on the same footing as that of the aforementioned case, and the order impugned in this criminal petition is liable to be set aside. 11. In the result, the Criminal Petition No.1965 of 2020 is allowed setting aside the impugned order dated 11-03-2020 in Crl.M.P.No.3 of 2020 in Crime No.149 of 2018 of C.C.No.868 of 2019 passed by the Additional Junior Civil Judge, Narsipatnam. The possession of the property that was seized from the petitioners in connection with Crime No.149 of 2018 of Narsipatnam Police Station is ordered to be delivered to the petitioners. As a sequel, pending miscellaneous petitions, if any, shall stand closed.