High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 6.2.2008.CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.Nos.871 and 901 of 2007Crl.R.C.No.871 of 2007RavikapoorPetitioner vs. 1. The State by Inspector of Police, Central Crime Branch, Team No.I, Egmore, Chennai – 8. 2. SivakumarRespondentsCriminal Revision Case filed under sections 397 and 401Cr.P.C. to set aside the order dated 9.6.2007 made in Crl.M.P.No.944of 2007 in Crime No.207 of 2007 on the file of the Additional ChiefMetropolitan Magistrate, Egmore, Chennai. Crl.R.C.No.901 of 2007V.SivakumarPetitionervs. The State by Inspector of Police, Central Crime Branch, Egmore, Chennai – 8. Criminal Revision Case filed under sections 397 and 401Cr.P.C. to set aside the order dated 9.6.2007 made in Crl.M.P.No.920of 2007 in Crime No.207 of 2007 on the file of the Additional ChiefMetropolitan Magistrate, Egmore, Chennai. For petitioner in Crl.R.C.871/2007: Mr.R.Shanmugasundaram, Senior Counsel for Mr.Chandrasekaran https://hcservices.ecourts.gov.in/hcservices/ For petitioner in Crl.R.C.901/2007: Mr.K.Ashokan, Senior Counsel for Mr.R.KarthikeyanFor respondents: Mr.A.Saravanan, Govt. Advocate (Crl. Side) Mr.N.Chandrasekaran Special P.P.for CBI COMMON ORDERCriminal Revision Case No.871 of 2007 is directed against theorder passed in M.P.No.944 of 2007 and Criminal Revision Case No.901of 2007 is filed against the order passed in M.P.No.920 of 2007 onthe file of the Additional Chief Metropolitan Magistrate, Egmore,Chennai. 2. The petitioner in Criminal Revision Case No.871 of 2007 isan accused in Crime No.207 of 2007 on the file of the AdditionalChief Metropolitan Magistrate, Egmore, Chennai and the petitioner inthe other Criminal Revision Case is the de facto complainanttherein. Both of them have claimed interim custody of importedKomori Offset Printing Machine invoking the provision under section451 of the Code of Criminal Procedure. 3. The petitioner in Criminal Revision Case No.871 of 2007would contend that he imported Komori Offset Printing Machinethrough Mayrose Machinery Limited as per invoice No.4066 for a sumof GBP 10,000/=. He has also paid the customs duty and cleared thegoods. By virtue of improper search warrant, the said machine wasseized by the respondent police and therefore, the petitioner inCriminal Revision Case No.871 of 2007 is entitled to interimcustody, it is contended. 4. The petitioner in Criminal Revision Case No.901 of 2007would contend that the machine was imported by him on the basis ofan agreement clinched with River Graphics at London. The searchwarrant was issued to seize the printing machine, as prima faciecase was made out as against the accused. The accused, who wasfound in possession of the printing machine, is not a lawful ownerthereof and therefore, he is not entitled to interim custody, thepetitioner therein would further contend. 5. The respondent police, through the counter filed by them,would inform this court that the seized property viz., KomoriPrinting Machine was originally booked by the de facto complainantSivakumar at London and the initial amount also was paid by him atLondon. The relevant documents were also recovered by theinvestigating official which would go to indicate that the taxamount and other duties have been paid by the accused at the request https://hcservices.ecourts.gov.in/hcservices/ of the de facto complainant. The respondent police has collectedmaterials to show that the de facto complainant has made entirepayment for the printing machine. 6. The learned Senior Counsel appearing for the petitioner inCriminal Revision Case No.871 of 2007 would contend that the machinewas recovered from the lawful custody of the accused. The documentsproduced would disclose that the accused had parted with sufficientmoney for purchase of the imported machine. The Trial Court haserred in dismissing the plea of the accused seeking interim custody.7. The learned Senior Counsel appearing for the petitioner inCriminal Revision Case No.901 of 2007 would vehemently contend thatthough the imported machine was found in possession of the accusedat the time when search was made based on the warrant issued by thecompetent court, the investigating officer has collected materialsto show prima facie that the entire sale consideration for theimported machine was paid by the de facto complainant at London.Having allegedly parted with a paltry amount towards tax and otherduties for taking delivery of the printing machine, the accused hascome out with a plea for interim custody of the machine. The TrialCourt has erred in accepting the plea of the accused that he hadparted with enormous amount for the purchase of the printingmachine. 8. Learned Government Advocate (Criminal Side) would bring tothe notice of this court that the voluminous materials collected bythe investigating agency would unerringly indicate that the de factocomplainant is the owner of the imported printing machine. He alsoreferred to the communication received from Stanferren FerrenGraphics, London that payment of the entire sale consideration wasmade on behalf of the de facto complainant for the purchase of thesubject imported printing machine. 9. The Trial Court having found that both the de factocomplainant and the accused have produced materials to substantiatetheir respective claims over the imported machine seized from theaccused, ordered the investigating agency to retain the subjectprinting machine till it is decided conclusively as to the ownershipthereof at the fag end of the Trial and consequently dismissed theplea of both the de fact complainant and the accused. 10. It is found that the accused has produced documents to showthat he has paid tax and other duties payable on the importedprinting machine. The amount alleged to have been parted with bythe accused to clear the tax and other duties is found to be paltrycompared to the whopping sale price of the imported machine. The defacto complainant has convincingly produced voluminous materials toshow that it was he who clinched the sale deal with a foreign https://hcservices.ecourts.gov.in/hcservices/ Company and imported the printing machine having parted with theentire sale consideration. Of course, the imported printing machinewas recovered from the custody of the accused based on the warrantissued by the learned Additional Chief Metropolitan Magistrate. Asrightly pointed out by the learned Senior Counsel for the de factocomplainant when the possession of the property is tinged with thealleged crime, it would be travesty of justice to entrust theinterim custody of the property to the accused. 11. The investigating agency also has come out with voluminousmaterial to show that it was only the de facto complainant whohaving paid the entire sale price for the imported printing machine,appeared to be the owner thereof. The accused may have some stakeover the printing machine on account of the reported payment of taxand other duties when the machine was taken delivery from theShipyard. But, it will be a miscarriage of justice if the interimcustody is entrusted to the accused denying the right of possessionof the de facto complainant, who appears to have parted with theentire whopping sale consideration for the printing machine in theaftermath of the agreement for sale entered into with a Company inforeign shore. 12. The learned Additional Chief Metropolitan Magistrate haserred in not entrusting the custody to one of the parties. Thecostly imported printing machine will go waste if it is exposed todust, open air and sunlight. The damage that may be caused onaccount of such unfriendly environmental onslaught to the preciousand valuable machine would be incalculable. 13. In view of the above, setting aside the order passed by thelearned Additional Chief Metropolitan Magistrate, Egmore, Chennai inCrl.M.P.No.920 of 2007, he is directed to entrust interim custodyof the imported printing machine seized to the de facto complainantwho is the petitioner in Criminal Revision Case No.901 of 2007 onexecuting a bond for a sum of Rs.50,00,000/=. The petitioner inCriminal Revision Case No.901 of 2007 shall not tamper with oralienate the printing machine entrusted to him for interim custodyand he shall produce the same during the course of trial as and whenrequired by the Trial Court. Consequently, Criminal Revision CaseNo.901 of 2007 stands allowed and Criminal Revision Case No.871 of2007 stands dismissed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssk. https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional Chief Metropolitan Magistrate, Egmore, Chennai. 2. Inspector of Police, Central Crime Branch, Team No.I, Egmore, Chennai – 8. 3 ccs to Mr.N. Chandrasekaran, Advocate, sR. 5559, 5560, 56251 cc to Mr.R. Karthikeyan, Advocate, sr. 5579Crl.R.C.No.871 & 901 of 2007RS (CO)kk 6/2