Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1860 of 2013 ====================================================== 1. Chhedi Sah S/O Late Yugeshwar Sah R/O Village- Jaitpur, Mohalla- Ratan Laxmi, P.S.- Pupri, District- Sitamarhi 2. Ratan Sah S/O Late Yugeshwar Sah R/O Mohalla- Ratan Laxmi, P.S.- Pupri, District- Sitamarhi 3. Binod Sah S/O Late Yugeshwar Sah R/O Mohalla- Dulan Chowk, P.S.- Pupri, District- Sitamarhi, At Present Proprietor Of Muskan Chulha Char, Station Road, P.S.- Pupri, District- Sitamarhi 4. Pramod Sah S/O Late Yugeshwar Sah R/O Village- Pupri, Jaitpur Mohalla- Ratan Laxmi, P.S.- Pupri, District- Sitamarhi 5. Yogendra Rai S/O Sarjeet Rai R/O Mohalla- Shivahara, P.S.- Pupri, District- Sitamarhi 6. Shatrughan Das S/O Bishwanath Das R/O Village- Charaut, P.S.- Pupri, District- Sitamarhi 7. Md. Arif Gulab S/O Md. Wajair R/O Village- Jhajhihat, P.S.- Pupri, District- Sitamarhi 1. The State Of Bihar 2. The Station House Officer, P.S. Pupri, Sitamarhi Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ashhar Mustafa For the State : Mrs. Indu Kumari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 3 18-03-2013 Heard learned counsel for the petitioners and the State. A counter affidavit has been filed on behalf of Station House Officer, Pupri police station, Sitamarhi (opposite party no.2).
Legal Reasoning
Petitioners herein are aggrieved by order dated 03.07.2012 passed by the learned Adhoc Addl. Sessions Judge-III, Sitamarhi in Cr. Rev. No. 25 of 2012/04/2012. By the said order, the revision application preferred by the petitioners herein was rejected and the 2 Patna High Court Cr.Misc. No.1860 of 2013 (3) dt.18-03-2013 2 / 5 order dated 23.11.2011 passed by the SDJM, Pupri, Sitamarhi refusing to release the LPG cylinders in favour of the petitioners (applicants). Opposite party no.2 on his own statement recorded an FIR on 28.11.2010 alleging therein that on secret information he visited the tea shop of petitioner no.1 Chhedi Sah which is/was in rented house of one Md. Jamal near Tower Chowk and seized gas cylinders stored there. The allegation further is that aforesaid petitioner Chhedi Sah was engaged in illegal supply of gas cylinders to customers. One of the gas cylinders exploded causing injury to petitioner no.1 and others. Two commercial gas cylinders of 19 kg. and seven domestic gas cylinders (14.2 and 15.8 kg.) were seized and the case was drawn up vide Pupri P.S. Case No. 204 of 2010. Petitioners claiming themselves to be the owners of the gas cylinders, approached the court below for release of the same. They produced the consumer card(s) and other documents in support thereof. Said application was rejected by learned SDJM on the ground that the gas cylinders were not perishable items and investigation was still underway. Aggrieved thereby, they preferred revision application which was rejected by order dated 3rd July, 2013 concurring with the view taken by the learned SDJM, Pupri, Sitamarhi. Hence the present application. 3 Patna High Court Cr.Misc. No.1860 of 2013 (3) dt.18-03-2013 3 / 5 Learned counsel for the petitioners submits that the provisions contained in section 457 Cr. P.C. is a residuary provision which enables the court to release such items/articles during investigation of a case if the claimant thereof appears and makes a request therefor and satisfy about their right to possess/hold those articles. In this connection, he has relied on a judgment rendered by Hon’ble Supreme Court in the case of M.S. Jaggi vs. Subaschandra Mohapatra (1977 Cri. Law Journal 1902. In para 5 of the counter affidavit following stand has been taken:- “5. That in reply to paragraph no.4 of quashing application, it is hereby humbly submitted that no consumer as claimed has appeared before the I.O. during investigation claiming bona fide consumer of the said LPG Cylinder nor produced any document in support of the claim has been filed so far at the P.S. and further submitted that the order of the Learned SDJM, Pupri dated 23.11.2011 and the order of the learned Additional Sessions Judge FTC-3 dated 03-07-2012 is a judicial order by the competent court of the jurisdiction and matter of adjudication by their Lordship and as such no comment.” I have considered the submissions made by the parties. 4 Patna High Court Cr.Misc. No.1860 of 2013 (3) dt.18-03-2013 4 / 5 Section 457 of the Code reads thus:- “457. Procedure by police upon seizure of property.-(1) whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. the property may order (2) If the person so entitled is known, the to be Magistrate delivered to him on such conditions (if any) as the Magistrate thinks fit, and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.” It thus appears that the court has been vested with the jurisdiction to release the articles/items seized in connection with a case which is still under investigation. Such order can be passed if it appears to the court that the persons/claimant is entitled to possession thereof. Such entitlement can be gathered from the document(s) filed in support thereof. No other person till date has claimed the gas cylinders. It appears that petitioners herein have approached the court with consumer cards(s) duly issued by the concerned agency/company and the invoice(s). It is not the case of 5 Patna High Court Cr.Misc. No.1860 of 2013 (3) dt.18-03-2013 5 / 5 the prosecution that release of the items in any manner will adversely affect the case since the petitioners in filing the application has accepted the factum of seizure of those gas cylinders in connection with the present case. No issue in this regard, therefore, can be raised. Considering the provisions of law and the submissions of the parties as also the stand taken by the Investigating Officer of the proceeding, this Court is persuaded to direct the release of those gas cylinders seized in favour of the petitioners on furnishment of adequate surety which may be in the shape of filing indemnity bond and deposit of some cash amount. Petitioners seem to be hailing from lower strata of the society. This Court, therefore, leaves it to the discretion of the court below to fix the condition(s) on which their gas cylinder(s) shall be released in favour of the petitioners. Accordingly, the application is disposed of directing the court below to release those articles in favour of the petitioners in the light of the order present within two weeks from the date of receipt/production of a copy of this order. (Kishore Kumar Mandal, J) HR/-