IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 360 of 2009
Raj Chouhan ... ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Superintendent of Police, Dhanbad... ... ... Respondents
CORAM: HON'BLE MRS. JUSTICE POONAM SRIVASTAV
For the Petitioner : M/s Rajiv Lochan, Sanjay Kumar, Advocates
For the State : J.C. to G.P. IV
05/11.11.2011
Heard counsel for the petitioner and also counsel appearing on behalf of the
State.
The order impugned in the instant writ petition is dated 02.07.2009 passed by
the learned Sessions Judge, Dhanbad in Cr. Rev. No. 174 of 2009 confirming the
order of Magistrate dated 23.05.2009 in G.R. No. 138 of 2008.
23 tonnes of coal were loaded in a truck bearing registration No. JH11
A4392. The allegation is at the time of seizure of the truck loaded with coal, no
document could be produced at the behest of the accused. Subsequently, during the
continuation of the investigation, an application was moved for release of the coal
along with some certified documents to substantiate its ownership which was
rejected by the Chief Judicial Magistrate, vide order dated 13.01.2009. This order
was challenged in Cr.Rev., but the same stood dismissed by the learned Sessions
Judge for the reason that investigation was in continuation, therefore, the court was
not inclined to release the coal during the pendency of investigation. However, it
was left open that after submission of chargesheet, the petitioner will be at liberty to
approach the court at a latter date. Hence, another application was moved which
was dismissed, vide order dated 23.05.2009. The order was challenged in Cr.Rev.
No. 174 of 2009. The revisional court has once again refused the prayer for release
of the coal on the ground that the accused/petitioner was not able to produce any
document at the time of seizure. Chargesheet is submitted and a number of
witnesses have supported the prosecution case in the statement under Section 161
Cr.P.C.
After hearing the counsel on behalf of the petitioner as well as the State
counsel at length and on consideration of the fact that the seized article is lying in
custody since a longtime and is a perishable item. Evidently, it is a national loss and
cannot be put to use by anyone. The trial is still continuing and it is not known as to
how long the trial will continue.
Taking into consideration such a circumstance where articles seized by the
police and are subject matter of criminal case. The Apex Court adopted a view and
directed the State to release the goods in case there is no other claimant and the
applicant is able to satisfy by some document or by other evidence and aspects that
he is the rightful claimant. Apart from it, if the item is perishable and someone
comes forward to take custody, the goods may be released after adopting safety
measures such as security, indemnity bonds, undertaking etc. that the goods will be
produced at the time of trial as and when required or alternatively the court shall
take steps to get the articles photographed and record evidence about the ‘case
property’ which can be used at a latter date during the trial. These directions were
given by the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat,
AIR 2003 SC 638. Paragraphs 8, 9 and 10 of the said judgment is quoted below:
“8. The question of proper custody of the seized article
is raised in number of matters. In Smt. Basavva Kom
Dyamangouda Patil Vs. State of Mysore and another, (1977) 4
SCC 358, this Court dealt with a 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 :
“4. The object and scheme of the various provisions of
the Code appear to be that where the property which has been
the subjectmatter 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 sought 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.”
9. The Court further observed that where the property
is stolen, lost or destroyed and there is no prima facie defence
made out that the State or its officers had taken due care and
caution to protect the property, the Magistrate may, in an
appropriate case, where the ends of justice so require, order
payment of the value of the property.
10. To avoid such a situation, in our view, powers
under Section 451, Cr.P.C. should be exercised promptly and
at the earliest.”
In view of the directions of the Apex Court, I am of the considered view that
the Chief Judicial Magistrate, Dhanbad shall release 23 tonnes of coal in favour of
the petitioner after taking indemnity bonds and also taking steps to ensure that the
trial is not hampered on account of the release. The counsel on behalf of the
petitioner undertakes to furnish bonds equivalent to the property sought to be
released. The documents shall be kept on record to be used at a latter date. The
entire exercise is to be carried out by the Chief Judicial Magistrate, Dhanbad, within
a period of four weeks from the date an application along with a certified copy of
this order is produced before him.
With the aforesaid observations/directions, the writ petition stands finally
disposed of.
(Poonam Srivastav, J.)
Manish