Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.5327 of 2013 ====================================================== Ashok Kumar S/O Late Nageshwar Ram Resident Of Chawal Bazar, Raxaul, P.S. Raxaul, District East Champaran. The State Of Bihar Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. S. P.Tiwary & Mr. K.K.Tiwary For the State : Mr. Pranav Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 5 20-03-2013 The order dated 21.01.2013 passed by the 2nd Addl. Sessions Judge, East Champaran, Motihari in Cr.Rev. No. 319/51 of 2012/2012 is under challenge whereby the learned revisional court affirmed the order passed by the Sub Divisional Judicial Magistrate, Raxaul at Motihari in Raxaul P.S. Case No. 242/2012. By the said order, learned Magistrate rejected the prayer of the petitioner for release of the consignment(s)/articles meant for export to M/s Shiv Shakti Products of Kathmandu (Nepal). Let it be recorded that, as per the prosecution case, the seized articles are raw material(s) of Pan Masala. As per the prosecution case, the Officer-in-charge, on getting information that the petitioner has stored certain articles which are banned items at some place rented by him, raided the godown(s) and effected seizure of „Katran Supari‟ (110 bags), prepared (plain) Sada Pan Masala (22 bags), Dry Khainee (170 bags), Grined Katha (3 bags), PDC Kaccha Wrapper Role (73 bags). On all the bags M/s Shiv Shakti Products Kathmandu, Nepal 2
Legal Reasoning
Patna High Court Cr.Misc. No.5327 of 2013 (5) dt.20-03-2013 2 / 7 was printed. Apart from aforesaid articles/items, some other bags containing Dilbagh Filter khaini (15 bags), Lime (42 tins), Kiman kept in 13 plastic jerkins, each of 25 litres were seized and recovered. Some other materials such as Kaccha Wrapper Role 112 bundles, Silka Powder kept in 22 drums, Katran Supari (63 bags), PBC Master Pack Kaccha Wrapper (11bundles), PVC small pouches (63 bundles) as well as one oven machine were also seized and recovered under two seizure memos. The FIR was accordingly drawn under section 272,273,274,419 and 420 IPC and sections 22,23 & 24 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003 ( for short „COPA‟). The petitioner being the authorized representative of M/s Shiv Shakti Products of Kathmandu (Nepal) and also a franchisee of the company based at Kanpur (in the name and style of M/s Pan Parag India Ltd.) filed an application for release thereof. The petitioner claimed that the articles seized were being exported to the firm M/s Shiv Shakti Products, Kathmandu under the valid export and sale documents. The Pan Parag India Ltd. used to purchase raw materials from India as well as the 3rd country and for its manufacturing unit in Nepal with its Franchisee M/s Shiv Shakti products where the same is not banned. It is also contended that all the article(s)/consignment(s) under the seizure have been validly purchased by the said Franchisee (M/S Shiv Shakti Products) and the relevant invoices/cash memo(s) and transit documents have been produced. The, petitioner, therefore, takes a stand that the firm M/S Shiv Shakti Products Kathmandu has the franchiseeship of Pan Parag India Ltd. and is carrying on a business in Nepal. The petitioner also produced documents issued by the Customs Department in relation to those articles. Said 3 Patna High Court Cr.Misc. No.5327 of 2013 (5) dt.20-03-2013 3 / 7 application for release of the materials/articles was considered and rejected by the learned SDJM, Raxaul by order dated 16.10.2012. Aggrieved thereby, the petitioner filed revision application vide Rev. Case No. 319 /51 of 2012/2012 which was rejected by the learned Addl. Sessions Judge by order dated 21.01.2013. Hence, the present application. Learned counsel for the petitioner placed the order passed by the learned SDJM to demonstrate the facts which are not in dispute. The learned Magistrate in the impugned order found as under:- “On the basis of aforesaid documents and facts of case it appears that the petitioner is an authorized agent of Shiv Shakti Products to store, handle and dispatched the goods of firm, import from India to third country on behalf of firm. It further appears that Shiv Shakti Products has been authorized by his franchise to manufacture, pack and sell the Guthka with brand name of PAN PARAG and has also been authorized to use the trade mark as per agreement. The report of I.O. also straightened version of petitioner. It appears that the seized article were stored at Raxaul between four km. of boarder area for which petitioner has got Custom Certificate. It also appear that the said seized items was to be supplied to the Shiv Shakti Product. The entire facts show that the petitioner is ostensible proprietor of the seized article. However, the seized article have been banned in India as the same in hazardous to health and has damaging effect on the health of the people at large. Hence the seized article cannot be released in favour of the petitioner.” 4 Patna High Court Cr.Misc. No.5327 of 2013 (5) dt.20-03-2013 4 / 7 The revisional court in the impugned order also found as under:- “It also appears that several documents have been filed on behalf of the petitioner which is Franchisee agreement between M/S Pan Parag India Limited and M/S Shiv Shakti Product Manmaija, Kathmandu. By the said agreement M/s Shiv Shakti Product has been authorized to manufacture, pack and sell Tutkha with brand name of Pan Parag and has also been authorized to use the trade mark as per agreement. From perusal of another document which is authorization letter dated 1.9.2012 issued by Shiv Shakti Product, Kathmandu, Nepal. It also appears that petitioner was authorized by M/s Shiv Shakti Product to store, handle and dispatch the goods of the firm imported from India or third country on behalf of the firm and other documents are photo copy of sell/retain upon which it is mentioned that “Export to Nepal via Raxaul boarder”. It also appears that the said seized articles were to be supplied to the Shiv shakti Product but the same was seized by the police from the godowns of the petitioner situated at Raxaul, Bihar. The entire facts goes to show that the petitioner is ostensible proprietor of the seized articles. However, the seized articles have been banned in Bihar.” Learned counsel for the petitioner submits that admittedly the articles were being exported to Kathmandu under valid document of sale and transit. The petitioner was only handling those articles on behalf of M/S Shiv Shakti Products under authorization. It is not the case of the prosecution that the same was meant for storage and sale in the state of Bihar. The courts 5 Patna High Court Cr.Misc. No.5327 of 2013 (5) dt.20-03-2013 5 / 7 below, on perusal of diverse documents produced in this regard and also by the prosecution, found that the articles were being exported to Nepal where such items are not banned under any law. The seizure was effected on 21.9.2012 and no proceeding for confiscation under any provision of the Act, including COPA, has been initiated. Even going by the allegations contained in the FIR, prima facie, no case of the breach of the penal provision(s) of the COPA is/are made out. The items are perishable in nature and as such they should be directed to be released in favour of the petitioner who was duly authorized to hold the article(s) for export to the consignee i.e. M/s Shiv Shakti Products of Nepal. Relying on para 77 of a judgment delivered by Hon‟ble Apex Court in Godawat Pan Masala Products I.P. Ltd. & Anr. Vs. Union of India & Ors. (2004 (4) PLJR 62), it has been submitted that the jurisdiction to ban such matter vests with the Central Government and not with the the State Government. The learned revisional court in the impugned order has noticed that the articles seized cannot be released as
Legal Reasoning
those items are banned in the State of Bihar. Mr. Tiwary, learned counsel for the petitioner further submits that the petitioner shall have no objection if the prosecution is permitted to take sample(s) of the articles seized by the prosecution for producing in court as material exhibits or chemical analysis if they need so but the non release thereof would cause enormous loss to the petitioner and the firm on whose behalf the petitioner was engaged in exporting those articles under the valid sale document as well as permission document of the concerned department. He also relied in this regard on a communication issued by the Commissioner of Customs and Central Excise (Annexure-5) whereby the State Government in the concerned department was requested not to put hindrance in transportation of export articles being 6 Patna High Court Cr.Misc. No.5327 of 2013 (5) dt.20-03-2013 6 / 7 exported if they are supported by the valid document(s) of sale and permission to export. A counter affidavit affirmed by the SDPO Raxaul has been filed. Learned counsel for the State submits that investigation is going on and the matter concerning release of the articles shall be taken up upon completion thereof. Having heard the parties and on perusal of the materials on record, this Court finds that the petitioner is an authorized agent of Shiv Shakti Products to obtain, handle and dispatch the goods/articles of firm to be exported from India on behalf of the firm. Section 457 of the Code enables the Court to release such seized articles even in course of investigation. From the materials on record it further appears that articles were seized while being exported to Nepal. It was supported by valid document(s) of purchase and export. The petitioner, therefore, held those articles not for his own use or sale or distribution in the State of Bihar. The articles are perishable in nature. No proceeding to confiscate the articles under the provision(s) of the Act applicable in the case has been initiated till date. The petitioner is ready and willing to furnish surety in the shape of deposit of certain amount and also filing of indemnity bond. He has also taken a stand before this Court that the prosecution, if need, can be allowed to draw sample(s) of the articles for their chemical analysis or material exhibit, as the case may be, and the petitioner shall have no objection thereto. Regard being had to the aforesaid facts, this Court is inclined to allow this application by the following order:- The order dated 16.10.2012 passed by the learned SDJM, Raxaul at Motihari and the revisional order dated 21.01.2013 7 Patna High Court Cr.Misc. No.5327 of 2013 (5) dt.20-03-2013 7 / 7 passed by learned Addl. Sessions Judge, East Champaran, Motihari, are quashed and set aside. The prosecution is granted liberty to approach the court for taking sample(s) of the seized articles in connection with Raxaul P.S. Case No. 242/12 which shall be allowed by the court. The petitioner shall deposit a sum of Rs. 1,00,000/-(One lakh) as security deposit in the court and also furnish indemnity bond in respect of articles seized in connection with the said case. The court below shall release the seized articles in favour of the petitioner within ten working days of production/receipt of this order on furnishment of cash security in the sum of Rs. 01 lakh and an indemnity bond but after permitting the Investigating Agency to draw/take sample(s) of the seized articles/items, if approached therefor. (Kishore Kumar Mandal, J) HR/-