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Ravi Kapoor vs The State By Inspector Of Police … on 1 February, 2008

Madras High Court
Ravi Kapoor vs The State By Inspector Of Police … on 1 February, 2008
Author: M Jeyapaul
Bench: M Jeyapaul


ORDER

M. Jeyapaul, J.

1. Criminal Revision Case No. 871 of 2007 is directed against the order passed in M.P. No. 944 of 2007 and Criminal Revision Case No. 901 of 2007 is filed against the order passed in M.P. No. 920 of 2007 on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai.

2. The petitioner in Criminal Revision Case No. 871 of 2007 is an accused in Crime No. 207 of 2007 on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai and the petitioner in the other Criminal Revision Case is the de facto complainant therein. Both of them have claimed interim custody of imported Komori Offset Printing Machine invoking-the provision under Section 451 of the Code of Criminal Procedure.

3. The petitioner in Criminal Revision Case No. 871 of 2007 would contend that he imported Komori Offset Printing Machine through Mayrose Machinery Limited as per invoice No. 4066 for a sum of GBP 10,000/-. He has also paid the customs duty and cleared the goods. By virtue of improper search warrant, the said machine was seized by the respondent police and therefore, the petitioner in Criminal Revision Case No. 871 of 2007 is entitled to interim custody, it is contended.

4. The petitioner in Criminal Revision Case No. 901 of 2007 would contend that the machine was imported by him on the basis of an agreement clinched with River Graphics at London. The search warrant was issued to seize the printing machine, as prima facie case was made out as against the accused. The accused, who was found in possession of the printing machine, is not a lawful owner thereof and therefore, he is not entitled to interim custody, the petitioner therein would further contend.

5. The respondent police, through the counter filed by them, would inform this court that the seized property viz., Komori Printing Machine was originally booked by the de facto complainant Sivakumar at London and the initial amount also was paid by him at London. The relevant documents were also recovered by the investigating official which would go to indicate that the tax amount and other duties have been paid by the accused at the request of the de facto complainant. The respondent police has collected materials to show that the de facto complainant has made entire payment for the printing machine.

6. The learned Senior Counsel appearing for the petitioner in Criminal Revision Case No. 871 of 2007 would contend that the machine was recovered from the lawful custody of the accused. The documents produced would disclose that the accused had parted with sufficient money for purchase of the imported machine. The Trial Court has erred in dismissing the plea of the accused seeking interim custody.

6.1 The learned Senior Counsel appearing for the petitioner in Criminal Revision Case No. 901 of 2007 would vehemently contend that though the imported machine was found in possession of the accused at the time when search was made based on the warrant issued by the competent court, the investigating officer has collected materials to show prima facie that the entire sale consideration for the imported machine was paid by the de facto complainant at. London. Having allegedly parted with a paltry amount towards tax and other duties for taking delivery of the printing machine, the accused has come out with a plea for interim custody of the machine. The Trial Court has erred in accepting the plea of the accused that he had parted with enormous amount for the purchase of the printing machine.

7. Learned Government Advocate (Criminal Side) would bring to the notice of this court that the voluminous materials collected by the investigating agency would unerringly indicate that the de facto -complainant is the owner of the imported printing machine. He also referred to the communication received from Stanferren Ferren Graphics, London that payment of the entire sale consideration was made on behalf of the de facto complainant for the purchase of the subject imported printing machine.

8. The Trial Court having found that both the de facto complainant and the accused have produced materials to substantiate their respective claims over the imported machine seized from the accused, ordered the investigating agency to retain the subject printing machine till it is decided conclusively as to the ownership thereof at the fag end of the Trial and consequently dismissed the plea of both the de fact complainant and the accused.

9. It is found that the accused has produced documents to show that he has paid tax and other duties payable on the imported printing machine. The amount alleged to have been parted with by the accused to clear the tax and other duties is found to be paltry compared to the whopping sale price of the imported machine. The de facto complainant has convincingly produced voluminous materials to show that it was he who clinched the sale deal with a foreign Company and imported the printing machine having parted with the entire sale consideration. Of course, the imported printing machine was recovered from the custody of the accused based on the warrant issued by the learned Additional Chief Metropolitan Magistrate. As rightly pointed out by the learned Senior Counsel for the de facto complainant when the possession of the property is tinged with the alleged crime, it would be travesty of justice to entrust the interim custody of the property to the accused.

10. The investigating agency also has come out with voluminous material to show that it was only the de facto complainant who having paid the entire sale price for the imported printing machine, appeared to be the owner thereof. The accused may have some stake over the printing machine on account of the reported payment of tax and other duties when the machine was taken delivery from the Shipyard. But, it will be a miscarriage of justice if the interim custody is entrusted to the accused denying the right of possession of the de facto complainant, who appears to have parted with the entire whopping sale consideration for the printing machine in the aftermath of the agreement for sale entered into with a Company in foreign shore.

11. The learned Additional Chief Metropohitan Magistrate has erred in not entrusting the custody to one of the parties. The costly imported printing machine will go waste if it is exposed to dust, open air and sunlight The damage that may be caused on account of such unfriendly environmental onslaught to the precious and valuable machine would be incalculable.

12. In view of the above, setting aside the order passed by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai in Crl. M.P. No. 920 of 2007, he is directed to entrust interim custody of the imported printing machine seized to the de facto complainant who is the petitioner in Criminal Revision Case No. 901 of 2007 on executing a bond for a sum of Rs. 50,00,000/=. The petitioner in Criminal Revision Case No. 901 of 2007, shall not tamper with or alienate the printing machine entrusted to him for interim custody and he shall produce the same during the course of trial as and when required by the Trial Court. Consequently, Criminal Revision Case No. 901 of 2007 stands allowed and Criminal Revision Case No. 871 of 2007 stands dismissed.

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