{"id":220985,"date":"2008-07-30T00:00:00","date_gmt":"2008-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vs-mr-mengdey-on-30-july-2008-2"},"modified":"2019-02-01T14:01:21","modified_gmt":"2019-02-01T08:31:21","slug":"vs-mr-mengdey-on-30-july-2008-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vs-mr-mengdey-on-30-july-2008-2","title":{"rendered":"======================================== vs Mr Mengdey on 30 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
======================================== vs Mr Mengdey on 30 July, 2008<\/div>\n
Author: H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/2304\/1995\t 8\/ 8\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 2304 of 1995\n \n\n \n\n\n \n\nFor\nApproval and Signature:  \n \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\n \n========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n========================================\n\n\n \n\nSANTOSH\nC SAINANI \n\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & ANOTHER\n \n\n========================================\nAppearance : \nMR\nRD DAVE for the Applicant \nMR MENGDEY, ADDL. PUBLIC PROSECUTOR for\nRespondent No.1 \nMR HARIN P RAVAL for Respondent(s) : 2, \nMRS\nSHILPA R SHAH for Respondent(s) :\n2, \n======================================== \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 30\/07\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tBy
\nthis application under section 482 of the Code of Criminal Procedure,
\n1973 (the Code), the applicant has prayed to quash the First
\nInformation Report being Junagadh Police Station, I-C.R. No. 48\/85 as
\nwell as further proceedings of Criminal Case No.1103\/87 pending in
\nthe Court of the learned Chief Judicial Magistrate, Junagadh in
\nrespect of the present applicant.\n<\/p>\n
2.\tThe
\nfacts of the present case are more or less similar to the facts of
\nCriminal
\nMiscellaneous Application No.711\/94, which has been
\ndisposed of by an order of even date today. The facts of the said
\ncase have been elaborately set out in the said order. Hence, the same
\nare not repeated herein. Insofar as the present applicant is
\nconcerned, he comes into the picture at the stage when the applicants
\nof Criminal
\nMiscellaneous Application No.711\/94 make an exit.
\nInsofar as the present applicant is concerned, the raid on the
\npremises of Shri Laxmandas Vishandas Trilokani had been conducted
\nunder the instructions of the present applicant and the sealed packet
\ncontaining the seized goods had been handed over to him.\n<\/p>\n
3.\tAccording
\nto the applicant who was working as Superintendent of Central Excise
\n(Prevention) Branch at Junagadh at the relevant time, on 11th
\nJanuary, 1984 in the evening, the seized goods were brought to
\nJunagadh and the sealed box was handed over to Cashier M.N. Solanki
\nworking in the, office of Assistant Collector of Customs and Excise
\nat Junagadh who kept it in the shelf meant for storing valuables. The
\napplicant was originally not named as an accused in the First
\nInformation Report but subsequently, at the time of filing the charge
\nsheet, the applicant has been arraigned as the accused No.6 in the
\ncharge sheet. It is in the background of the aforesaid facts that the
\napplicant has preferred the present application seeking to quash the
\nproceedings insofar as he is concerned.\n<\/p>\n
4.\tHeard
\nMr. R.D. Dave, learned advocate for the applicant, Mr. M.R. Mengdey,
\nlearned Additional Public Prosecutor for respondent No.1 and Ms.
\nShilpa R. Shah, learned Additional Standing Counsel for the Central
\nGovernment on behalf of the respondent No.2.\n<\/p>\n
5.\tMr.\n<\/p>\n
R.D. Dave, learned advocate for the applicant has submitted that
\nexcept for giving the orders for conducting the raid to the
\nInspectors, the applicant was not involved in the present case,
\nbecause the remaining procedural aspects are required to be followed
\nby the Assessing Officer and the Custodian as per the instructions
\ngiven by the Board of the Central Excise and Customs.\n<\/p>\n
6.\tIt
\nis further pointed out that the raid was carried out on 11th
\nJanuary, 1984 and the seizure was affected through Shri J.H. Trivedi,
\nInspector and three other Inspectors, who came back to the office of
\nthe Assistant Collector of Customs with the packet of seized goods
\nand handed it over to the Cashier on the same day to keep the same in
\nthe Government Treasury (Safe), who is also a ?SCustodian?? within
\nthe meaning of the instructions\/ guidelines of the Board. The
\nstatement of the Cashier recorded during the course of investigation
\nreveals that on receipt of packet of seized goods, he passed a
\nreceipt to the Inspector Shri J.H. Trivedi. Thereafter, Shri J.H.
\nTrivedi had taken delivery of the said packet of seized goods from
\nthe Cashier by giving back the receipt so as to keep the said packet
\nin the locker of the bank and the Cashier thereafter, destroyed the
\nreceipt. It is pointed out that the locker in the Bank was operated
\nby the Range Superintendent of Central Excise, who is also the
\nCustodian within the meaning of the instructions\/guidelines of the
\nBoard. Thus, during the course of the entire transaction, the
\napplicant does not come into the picture at any point of time. It is
\nsubmitted that when the applicant has not handled the packet in
\nquestion at any point of time, it is amply clear that he is in no
\nmanner involved with the offence in question. It is submitted that
\nthere is no material on record which connects the applicant with the
\noffence in question, hence, the impugned complaint as well as the
\ncriminal proceedings are required to be quashed and set aside.\n<\/p>\n
7.\tOn
\nthe other hand, Ms Shilpa R. Shah, learned Additional Central
\nGovernment Standing Counsel has submitted that the entire procedure
\nhad been followed in accordance with the instructions issued by the
\nBoard and the seized goods had been sealed in a packet and had been
\nduly handed over to the applicant. It was submitted that it was the
\napplicant who had retained the packet in question from 11th
\nJanuary, 1984 to 22nd February, 1984 in contravention of
\nthe provisions of Preventive and Intelligence Departmental Manual and
\naccordingly, it cannot be said that the applicant is not involved in
\nthe offence in question. Pointing out the discrepancies in the
\npanchnama made at the time when the goods were seized and the
\npanchnama made at the time when open delivery was given to said Shri
\nLaxmandas, it was submitted that in these circumstances, the
\napplicant who had retained the seized packet for a period of more
\nthan one month, is certainly the person who could have tampered with
\nthe packet in question. It was submitted that it was only during that
\nperiod, that the packet in question could have been tampered with,
\nhence, the say of the applicant that he had not handled the packet in
\nquestion at any point of time cannot be accepted and no intervention
\nis warranted at the hands of this Court.\n<\/p>\n
8.\tMr.\n<\/p>\n
M.R. Mengdey, learned Additional Public Prosecutor has adopted the
\nsubmissions made by the learned Additional Central Government
\nStanding Counsel.\n<\/p>\n
9.\tAs
\ncan be seen from the First
\nInformation Report in question, the applicant herein was not
\narraigned as an accused in the First
\nInformation Report. Subsequently, it appears that during the
\ncourse of investigation, the applicant’s name has been revealed and
\naccordingly he has been arraigned as accused No.6 in the charge
\nsheet. A perusal of the charge sheet shows that no specific
\nallegations have been made against the applicant and there are
\ngeneral allegations to the effect that the accused have conspired to
\ncommit the offence punishable under sections 409, 420 and 120-B
\nIndian Penal Code. The learned advocate for the applicant had
\nreferred to the statements of witnesses as well as the panchnamas
\ndrawn by the Department. Referring to the First
\nInformation Report, it had been pointed out that it is stated
\ntherein that on 22nd February, 1984, the applicant had
\nhanded over the sealed packet to Shri S.N. Chudasama, Superintendent
\nof Central Excise, Regional Office, Junagadh and the same had been
\nkept by him in the Bank of India’s locker on the very same day. It is
\nfurther recorded in the First
\nInformation Report that when the sealed packet was handed over
\nto Shri Laxmandas, the seal
\non the box bore the signature of Shri J.H. Trivedi, the panchas
\nat the relevant time as well as of Shri Laxmandas. The box was not
\ntorn at any place.  The seals were intact. The panchnama dated
\n14.2.1985 made at the time of returning the seized goods clearly
\nshows that all the signatures and seals are intact. That upon perusal
\nof the packet and the seals there was no reason to suspect that the
\nsame had been opened. The packet was in a totally sealed condition.
\nIn the circumstances, it is not possible to state as to how the
\nmuddamal came to be changed from the gold pieces to the brass weight.
\nConsidering the fact that the brass weight belonged to Shri
\nLaxmandas, it is he who should have been able to explain as to under
\nwhat circumstances, a brass weight belonging to him had found its way
\ninto the sealed packet. However, insofar as the applicant is
\nconcerned, there is nothing to link him with the offence in question.
\nBesides, it appears that when the packet was handed over to the Range
\nSuperintendent on 22.2.84 he did not find any difference in the
\ndescription in the inventory and the physical condition of the packet
\nbefore keeping it in his custody\/in the locker of the bank. It also
\nappears that except the Range Superintendent, no other officer was
\nauthorised to operate the bank locker. One glaring omission in the
\nproceedings is that at the time of giving open delivery of the seized
\ngoods, the Custodian did not follow the provisions of the Manual and
\nmore particularly clause 8 of the ?SProcedure for Receipt, Storage
\nand Disposal of Seized\/ Detained and Confiscated Goods??, which
\nprovides that while giving open delivery the presence of the Seizing
\nor Detaining Officer should be secured. In the present case, despite
\nthe fact that some of the Seizing Officers were available, their
\npresence was not secured. Not only that, no other Gazetted Officer
\nwas requested to remain present at the time of giving open delivery.
\nConsidering the fact that at the time when the seized goods were
\nbeing returned to him, Shri Laxmandas had expressed suspicion that
\nthere was only one piece in the packet and had therefore, asked for
\nopen delivery, the Custodian ought to have strictly adhered the
\nprovisions of the Manual, more particularly as it was apparent that
\nsomething was amiss.\n<\/p>\n
10.\tIt
\nis the specific case of the applicant as stated on oath in the
\napplication that the Seizing Officer, Mr. Trivedi had handed over the
\npacket to the Cashier on the day of the seizure, that is on 11.1.84
\nand that the Cashier is the Custodian within the meaning of Clause 5
\nof the ?SProcedure for receipt, storage and disposal of
\nseized\/detained and confiscated goods.?? It is also averred that
\nspecial treasury\/safe is kept in the office of the Assistant Customs
\nCollector, Junagadh to store Government cash and valuables, which can
\nbe operated only by the Administrative Officer and the Cashier
\njointly by applying their keys simultaneously, which are in their
\ncustody. The Cashier in his statement has stated that the packet was
\nhanded over to him on 11.1.84 in the evening  by the applicant in the
\npresence of another officer and that from 11.1.84  after he took
\ncustody of the packet,  no officer  had asked for the same till
\n22.2.84. That the applicant  was neither responsible  nor  liable to
\nmaintain the seized goods in safe and proper condition. However,  the
\nsaid averments have not been controverted  by the respondents.\n<\/p>\n
11.\tFrom
\nthe facts noted  hereinabove, it is apparent  that the provisions of
\nthe Manual, which provide for ample  safeguards,  have not been
\nfollowed in the present case. In the circumstances, it would not be
\npossible to pinpoint  the exact  stage  at which the goods  have been
\nexchanged  so as to saddle  the liability on the applicant. It is
\nalso an admitted position that such negligence in  following the
\nprovisions of the Manual is not on the part of the applicant.  On an
\noverall view of the matter, in the opinion of the Court looking to
\nthe nature of the offence alleged against the applicant and more
\nparticularly, in view of the fact that the first information report
\nhas been lodged on 15th February, 1985 and more than 20
\nyears have elapsed thereafter, no fruitful purpose would be served by
\npermitting the proceedings  to continue  qua  the applicant.
\nBesides, in view of the above  discussion, the chances  of  an
\nultimately  conviction are also bleak.\n<\/p>\n
12.\tIn
\nthe result, the application succeeds and is accordingly allowed. The
\nFirst Information Report being Junagadh Police Station, I ?  C.R.
\nNo.48\/85 as well as Criminal Case No.1103\/87 pending in the Court of
\nthe learned Chief Judicial Magistrate, First Class, Junagadh, are
\nhereby quashed. Rule is made absolute accordingly.\n<\/p>\n
(HARSHA
\nDEVANI, J.)<\/p>\n
shekhar\/-\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court ======================================== vs Mr Mengdey on 30 July, 2008 Author: H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-220985","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\n======================================== vs Mr Mengdey on 30 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vs-mr-mengdey-on-30-july-2008-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"======================================== vs Mr Mengdey on 30 July, 2008 - 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