Kapildeo Thakur v. The State of Jharkhand
Case Details
1 Cr. Revision No.1398 of 2019 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No.1398 of 2019 Kapildeo Thakur ..... Petitioner Versus The State of Jharkhand …. Opposite Party CORAM: HON’BLE MR. JUSTICE NAVNEET KUMAR For the Petitioner : For the State : ----- Mr. Mahavir Pd. Sinha, Advocate Mr. Santosh Kr. Jha, Advocate Mr. Gautam Rakesh, APP 5/08.02.2024 Heard learned counsel appearing on behalf of the petitioner and
Legal Reasoning
learned APP appearing on behalf of State. 2. This Criminal Revision Application has been preferred against the impugned order dated 23.07.2019 passed in Barhi P.S. Case No.140 of 2018, corresponding to G.R. No.1176 of 2018 by Judicial Magistrate, 1st Class, Hazaribag, whereby and where under, the prayer for release of the seized coal, belonging to M/S Jai Shree Fuels Pvt. Ltd. in favour of the petitioner, who is the Managing Director of the said company, loaded on truck No.NL01K 2472 in connection with the instant case was rejected by the Court below. 3. It is submitted on behalf of the petitioner that the allegation as made in the FIR was that one truck No. NL01K 2472 was seized loaded with coal and as per the documents, the coal was belonging to M/s Jai Shree Fuels Pvt. Ltd, Hazaribag and as per verification from CCL, informant got information that the same had been loaded by M/s Jai Shree Fuels Pvt. Ltd through D.O. Holder under linked supply agreement with CCL and then the informant again visited to the factory concerned, but found that factory was not operational, rather coal ng lifted from CCL was being sold out in open market. 4. It has been submitted that as per the FIR and verification report that the truck was engaged for transportation of coal from CCL to M/S Jai Shree Fuels Industry, but the allegations made by the 2 Cr. Revision No.1398 of 2019 informant were not true, because as per the verification report of District Industries Centre, Hazaribag, every month, the department concerned had found that factory was operational, as such, the allegations of informant is false and fabricated and to that effect a DIC report has also been annexed along with this Criminal Revision Application as Annexure-1. 5. Further, it has been submitted that the factory M/s Jai Shree Fuels Pvt. Ltd is a registered unit and has possessed entire valid documents as per norms of Government, which is evident from Annexure-2, i.e. the Tax Invoice of the sale of Raw Coal issued from CCL (Central Coalfields Limited), which is Annexure-2 to this Criminal Revision Application. 6. Further, learned counsel appearing on behalf of the petitioner has also furnished the tax invoice Form-D i.e. the transportation challan and sale order issued from the CCL in order to show the lawful purchase and validity of coal in question, which is Annexure-3 to the Criminal Revision Application. 7. Further, it has also been argued by the learned counsel for the petitioner that the coal, which was alleged to have been seized was in fact validly booked from Tapin Colliery to be transported to the petitioner’s Unit at Ramgarh, but had not reached its destination on time and the petitioner had lodged a written complaint to the officer in charge, Kuju O.P., regarding the same and the said complaint has been annexed as Annexure-4 to this Criminal Revision Application. 8. Further, it has also been submitted by the petitioner that the I.O. of the instant case had made a report that he had no objection in release of the coal by the learned court below as these coals are not further required in the investigation in his written report dated 09.06.2019, which is Annexure – 5 to this Criminal Revision Application. 3 Cr. Revision No.1398 of 2019 9. Thus, it is urged on behalf of the petitioner that the learned court below while passing the impugned order dated 23.07.2019 has committed gross error, as it is clearly admissible that the coal was belonging to petitioner, who is accused in this case, and the truck has already been released in favour of the concerned owner and therefore, no prejudice would be caused to the criminal proceeding, if the coal is released in his favour. 10. Further it has also been pointed out that the coal is a perishable article and in a number of judgments of Hon’ble Apex Court, it has already been dealt with that if the articles are perishable in nature, then it must be released in favour of the concerned person at the earliest and in this connection he has relied upon one of the judgments of the Hon’ble Apex Court, i.e. in the case of Sunderbhai Ambalal Desai Versus State of Gujrat, reported in (2002) 10 SCC 283. 11. On the other hand, learned APP appearing on behalf of the State opposed the contentions raised on behalf of the petitioner and submitted that the coal was taken from Tapin Colliery, Charhi under Fuel Supply Agreement Scheme by the recipient, i.e. the factory M/s Jai Shree Fuels Pvt. Ltd, Ramgarh in order to sale it in open market on higher price because the coal was being transported without any valid documents and it has also come in the evidence that the driver of the said truck bearing No.NL 01K 2472 Md. Arbaz Ansari stated that the coal was being taken to Jwala Bricks Madhopur, Tekari, Gaya, where the documents presented were belonging to the petitioner, who was owner of Jay Shree Fuel Enterprises Ltd., Ramgarh and thus it is submitted that the coal seized were procured / purchased under FSA Scheme by D.O. holder Kapildeo Thakur (Petitioner), the owner of Jay Shree Fuel Enterprises Ltd., Ramgarh for the purpose of manufacturing soft Coke under technology of CFRI, Government of India, exclusively at this factory as per allotment under FSA Scheme, but on physical verification, it was found that the factory Jay Shree 4 Cr. Revision No.1398 of 2019 Fuel Enterprises Ltd., Ramgarh belonging to the petitioner was not in operational condition and as such, the D.O. holder was not authorized to sale the coal procured under the said FSA Scheme in the open market. Further, it has been submitted that the illegal transportation of coal has been supported by the witnesses examined during the course of the investigation and also in this case, the charge-sheet has been submitted and therefore under the facts and circumstances of this case, it is submitted that the learned trial court has rightly rejected to release the coal in favour of the petitioner and there is no illegality in the impugned order and therefore it is submitted that this Criminal Revision Application is fit to be dismissed being devoid of merit. 12. Having heard learned counsel appearing for the parties, perused the record of this case. 13. It is admitted case of the prosecution that the petitioner is accused in connection with Barhi P.S. Case No.140 of 2018, corresponding to G.R. No.1176 of 2018, registered under Sections 420, 406, 467, 468, 471, 472 of Indian Penal Code where the coal in question was seized, loaded in truck bearing No.NL 01K 2472 for illegal transportation of the coal. It is found from the record that the truck in question bearing No. NL 01K 2472 has been released in favour of the concerned owner. This petitioner is also said to have been released on anticipatory bail and is facing the criminal proceeding pending in the learned court below. Further, it is also been found that the coal in question was belonging to this petitioner, duly purchased from CCL, but the same was not used for his factory, but for in order to sale in the open market, because the factory was closed. Learned counsel appearing on behalf of the petitioner has submitted that the factory was in running condition and the entire documents for lifting of the coal from CCL and also the documents to show that the coal is being used in the factory is evident from Annexure-1, Annexure 2 series, Annexure 3 series and Annexure -4. Further, the report was called 5 Cr. Revision No.1398 of 2019 from the concerned I.O., which is annexure-5, where it has been mentioned that he has no objection if the coal in question is released in favour of the petitioner because, it is admitted that the coal in question belongs to the petitioner, who is accused in this case. Further, the learned APP has not denied that the coal in question belongs to the petitioner, which is lying in the premise of the Police Station, because, the truck has been released in favour of the owner after unloading the coal in the premise of the police station as thus it is found that if the coal is not released in favour of the petitioner, it will get damaged over a period of time, since, the petitioner is claiming the coal, which is said to have been seized in this case on the charge of illegal transportation and therefore it is found that it would not cause prejudice to criminal prosecution pending in the court below. In this regard, the case of Sunderbhai Ambalal Desai v. State of Gujarat reported in (2002) 10 SCC 283 has been relied upon and the relevant paragraphs of the said judgment are as under:- “5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property, such as: (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same. 7. In our view, the powers under Section 451 CrPC should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. court or the police would not be required to keep the article in safe custody; 3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. 8. The question of proper custody of the seized article is raised in a number of matters. In Basavva Kom Dyamangouda Patil v. State of Mysore [(1977) 4 SCC 358 : 1977 SCC (Cri) 598] this Court dealt with a 6 Cr. Revision No.1398 of 2019 case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under: (SCC p. 361, para 4) “4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject- matter of an offence is seized by the police it ought not to be retained in the custody of the court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the court or should be in its custody. The object of the Code seems to be that any property which is in the control of the court either directly or indirectly should be disposed of by the court and a just and proper order should be passed by the court regarding its disposal. In a criminal case, the police always acts under the direct control of the court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the court exercises an overall control on the actions of the police officers in every case where it has taken cognizance.” (emphasis supplied) 10. To avoid such a situation, in our view, powers under Section 451 CrPC should be exercised promptly and at the earliest. Valuable articles and currency notes 11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC at the earliest. 12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after: (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. 7 Cr. Revision No.1398 of 2019 13. For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition. 14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the court may direct that such articles be handed back to the investigating officer for further investigation and identification. However, in no set of circumstances, the investigating officer should keep such articles in custody for a longer period for the purposes of investigation and identification. For currency notes, similar procedure can be followed. 17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. 19. For articles such as seized liquor also, prompt action should be taken in disposing of it after preparing necessary panchnama. If sample is required to be taken, sample may be kept properly after sending it to the Chemical Analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.” 14. Having taken into consideration the aforesaid facts and circumstances of this case, it is found just and fair to release the coal in favour of the petitioner, subject to the conditions inter alia as under: 8 Cr. Revision No.1398 of 2019 (i) The concerned Court below will examine the original documents relating to the coal and must be satisfied that the petitioner is the owner of the coal; (ii) At the cost of the petitioner, the concerned court below will give direction to the I.O concerned to take the photograph of the said coal and submit it in the soft copy and hard copy, the photographs of the coal taken from different angles shall be kept on record; (iii) Any other condition or conditions as the learned Court below may deem fit and proper; 15. Accordingly, this criminal revision application is allowed and the impugned order dated 23.07.2019 passed in Barhi P.S. Case No.140 of 2018, corresponding to G.R. No.1176 of 2018 passed by Judicial Magistrate, 1st Class, Hazaribag is set-aside with a direction to the learned Court below to release the coal by imposing reasonable restrictions and conditions, as they deem fit and proper. 16. Accordingly, this criminal revision application is allowed. R.Kumar (Navneet Kumar, J.)