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CR.MA/2304/1995 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2304 of 1995
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
========================================
SANTOSH
C SAINANI
Versus
STATE
OF GUJARAT & ANOTHER
========================================
Appearance :
MR
RD DAVE for the Applicant
MR MENGDEY, ADDL. PUBLIC PROSECUTOR for
Respondent No.1
MR HARIN P RAVAL for Respondent(s) : 2,
MRS
SHILPA R SHAH for Respondent(s) :
2,
========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 30/07/2008
ORAL
JUDGMENT
1. By
this application under section 482 of the Code of Criminal Procedure,
1973 (the Code), the applicant has prayed to quash the First
Information Report being Junagadh Police Station, I-C.R. No. 48/85 as
well as further proceedings of Criminal Case No.1103/87 pending in
the Court of the learned Chief Judicial Magistrate, Junagadh in
respect of the present applicant.
2. The
facts of the present case are more or less similar to the facts of
Criminal
Miscellaneous Application No.711/94, which has been
disposed of by an order of even date today. The facts of the said
case have been elaborately set out in the said order. Hence, the same
are not repeated herein. Insofar as the present applicant is
concerned, he comes into the picture at the stage when the applicants
of Criminal
Miscellaneous Application No.711/94 make an exit.
Insofar as the present applicant is concerned, the raid on the
premises of Shri Laxmandas Vishandas Trilokani had been conducted
under the instructions of the present applicant and the sealed packet
containing the seized goods had been handed over to him.
3. According
to the applicant who was working as Superintendent of Central Excise
(Prevention) Branch at Junagadh at the relevant time, on 11th
January, 1984 in the evening, the seized goods were brought to
Junagadh and the sealed box was handed over to Cashier M.N. Solanki
working in the, office of Assistant Collector of Customs and Excise
at Junagadh who kept it in the shelf meant for storing valuables. The
applicant was originally not named as an accused in the First
Information Report but subsequently, at the time of filing the charge
sheet, the applicant has been arraigned as the accused No.6 in the
charge sheet. It is in the background of the aforesaid facts that the
applicant has preferred the present application seeking to quash the
proceedings insofar as he is concerned.
4. Heard
Mr. R.D. Dave, learned advocate for the applicant, Mr. M.R. Mengdey,
learned Additional Public Prosecutor for respondent No.1 and Ms.
Shilpa R. Shah, learned Additional Standing Counsel for the Central
Government on behalf of the respondent No.2.
5. Mr.
R.D. Dave, learned advocate for the applicant has submitted that
except for giving the orders for conducting the raid to the
Inspectors, the applicant was not involved in the present case,
because the remaining procedural aspects are required to be followed
by the Assessing Officer and the Custodian as per the instructions
given by the Board of the Central Excise and Customs.
6. It
is further pointed out that the raid was carried out on 11th
January, 1984 and the seizure was affected through Shri J.H. Trivedi,
Inspector and three other Inspectors, who came back to the office of
the Assistant Collector of Customs with the packet of seized goods
and handed it over to the Cashier on the same day to keep the same in
the Government Treasury (Safe), who is also a ?SCustodian?? within
the meaning of the instructions/ guidelines of the Board. The
statement of the Cashier recorded during the course of investigation
reveals that on receipt of packet of seized goods, he passed a
receipt to the Inspector Shri J.H. Trivedi. Thereafter, Shri J.H.
Trivedi had taken delivery of the said packet of seized goods from
the Cashier by giving back the receipt so as to keep the said packet
in the locker of the bank and the Cashier thereafter, destroyed the
receipt. It is pointed out that the locker in the Bank was operated
by the Range Superintendent of Central Excise, who is also the
Custodian within the meaning of the instructions/guidelines of the
Board. Thus, during the course of the entire transaction, the
applicant does not come into the picture at any point of time. It is
submitted that when the applicant has not handled the packet in
question at any point of time, it is amply clear that he is in no
manner involved with the offence in question. It is submitted that
there is no material on record which connects the applicant with the
offence in question, hence, the impugned complaint as well as the
criminal proceedings are required to be quashed and set aside.
7. On
the other hand, Ms Shilpa R. Shah, learned Additional Central
Government Standing Counsel has submitted that the entire procedure
had been followed in accordance with the instructions issued by the
Board and the seized goods had been sealed in a packet and had been
duly handed over to the applicant. It was submitted that it was the
applicant who had retained the packet in question from 11th
January, 1984 to 22nd February, 1984 in contravention of
the provisions of Preventive and Intelligence Departmental Manual and
accordingly, it cannot be said that the applicant is not involved in
the offence in question. Pointing out the discrepancies in the
panchnama made at the time when the goods were seized and the
panchnama made at the time when open delivery was given to said Shri
Laxmandas, it was submitted that in these circumstances, the
applicant who had retained the seized packet for a period of more
than one month, is certainly the person who could have tampered with
the packet in question. It was submitted that it was only during that
period, that the packet in question could have been tampered with,
hence, the say of the applicant that he had not handled the packet in
question at any point of time cannot be accepted and no intervention
is warranted at the hands of this Court.
8. Mr.
M.R. Mengdey, learned Additional Public Prosecutor has adopted the
submissions made by the learned Additional Central Government
Standing Counsel.
9. As
can be seen from the First
Information Report in question, the applicant herein was not
arraigned as an accused in the First
Information Report. Subsequently, it appears that during the
course of investigation, the applicant’s name has been revealed and
accordingly he has been arraigned as accused No.6 in the charge
sheet. A perusal of the charge sheet shows that no specific
allegations have been made against the applicant and there are
general allegations to the effect that the accused have conspired to
commit the offence punishable under sections 409, 420 and 120-B
Indian Penal Code. The learned advocate for the applicant had
referred to the statements of witnesses as well as the panchnamas
drawn by the Department. Referring to the First
Information Report, it had been pointed out that it is stated
therein that on 22nd February, 1984, the applicant had
handed over the sealed packet to Shri S.N. Chudasama, Superintendent
of Central Excise, Regional Office, Junagadh and the same had been
kept by him in the Bank of India’s locker on the very same day. It is
further recorded in the First
Information Report that when the sealed packet was handed over
to Shri Laxmandas, the seal
on the box bore the signature of Shri J.H. Trivedi, the panchas
at the relevant time as well as of Shri Laxmandas. The box was not
torn at any place. The seals were intact. The panchnama dated
14.2.1985 made at the time of returning the seized goods clearly
shows that all the signatures and seals are intact. That upon perusal
of the packet and the seals there was no reason to suspect that the
same had been opened. The packet was in a totally sealed condition.
In the circumstances, it is not possible to state as to how the
muddamal came to be changed from the gold pieces to the brass weight.
Considering the fact that the brass weight belonged to Shri
Laxmandas, it is he who should have been able to explain as to under
what circumstances, a brass weight belonging to him had found its way
into the sealed packet. However, insofar as the applicant is
concerned, there is nothing to link him with the offence in question.
Besides, it appears that when the packet was handed over to the Range
Superintendent on 22.2.84 he did not find any difference in the
description in the inventory and the physical condition of the packet
before keeping it in his custody/in the locker of the bank. It also
appears that except the Range Superintendent, no other officer was
authorised to operate the bank locker. One glaring omission in the
proceedings is that at the time of giving open delivery of the seized
goods, the Custodian did not follow the provisions of the Manual and
more particularly clause 8 of the ?SProcedure for Receipt, Storage
and Disposal of Seized/ Detained and Confiscated Goods??, which
provides that while giving open delivery the presence of the Seizing
or Detaining Officer should be secured. In the present case, despite
the fact that some of the Seizing Officers were available, their
presence was not secured. Not only that, no other Gazetted Officer
was requested to remain present at the time of giving open delivery.
Considering the fact that at the time when the seized goods were
being returned to him, Shri Laxmandas had expressed suspicion that
there was only one piece in the packet and had therefore, asked for
open delivery, the Custodian ought to have strictly adhered the
provisions of the Manual, more particularly as it was apparent that
something was amiss.
10. It
is the specific case of the applicant as stated on oath in the
application that the Seizing Officer, Mr. Trivedi had handed over the
packet to the Cashier on the day of the seizure, that is on 11.1.84
and that the Cashier is the Custodian within the meaning of Clause 5
of the ?SProcedure for receipt, storage and disposal of
seized/detained and confiscated goods.?? It is also averred that
special treasury/safe is kept in the office of the Assistant Customs
Collector, Junagadh to store Government cash and valuables, which can
be operated only by the Administrative Officer and the Cashier
jointly by applying their keys simultaneously, which are in their
custody. The Cashier in his statement has stated that the packet was
handed over to him on 11.1.84 in the evening by the applicant in the
presence of another officer and that from 11.1.84 after he took
custody of the packet, no officer had asked for the same till
22.2.84. That the applicant was neither responsible nor liable to
maintain the seized goods in safe and proper condition. However, the
said averments have not been controverted by the respondents.
11. From
the facts noted hereinabove, it is apparent that the provisions of
the Manual, which provide for ample safeguards, have not been
followed in the present case. In the circumstances, it would not be
possible to pinpoint the exact stage at which the goods have been
exchanged so as to saddle the liability on the applicant. It is
also an admitted position that such negligence in following the
provisions of the Manual is not on the part of the applicant. On an
overall view of the matter, in the opinion of the Court looking to
the nature of the offence alleged against the applicant and more
particularly, in view of the fact that the first information report
has been lodged on 15th February, 1985 and more than 20
years have elapsed thereafter, no fruitful purpose would be served by
permitting the proceedings to continue qua the applicant.
Besides, in view of the above discussion, the chances of an
ultimately conviction are also bleak.
12. In
the result, the application succeeds and is accordingly allowed. The
First Information Report being Junagadh Police Station, I ? C.R.
No.48/85 as well as Criminal Case No.1103/87 pending in the Court of
the learned Chief Judicial Magistrate, First Class, Junagadh, are
hereby quashed. Rule is made absolute accordingly.
(HARSHA
DEVANI, J.)
shekhar/-
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