Ram Kumar Mishra vs State of C.G.

Goutam Bhaduri, J.�This is a petition against the order dated 19/06/2012 passed in Criminal Revision No. 51/11 whereby the application preferred for custody of the goods seized i.e. silver bars was rejected by the court of Judicial Magistrate which was affirmed by court of A.S.J. in revision. The said order of revision is under challenge. Facts which are necessary to adjudicate the issue are that on 14/10/2010 while vehicles were being checked, the petitioner who was coming on motorcycle his motorcycle was intercepted. Further on search from the dickey of motorcycle six pieces of silver rods were recovered. On being asked the valid documents in respect of such silver bars, the inability was shown by the applicant. Therefore, the, motorcycle and the silver bars were seized on suspicion. Subsequently, an application was filed by applicant under Section 457 of Cr.P.C. and it was stated that the applicant had obtained the said silver bars from a jeweler on credit in order to fulfill his wish to prepare a statue of goddess. Initially an application for custody of such silver and the motorcycle moved on 19/10/2010, the same was rejected on, 16/12/2010. Thereafter, a Cr.M.P. No. 104/2011 was filed before the High Court wherein by an order dated 11/07/2011 it was directed that in case, no offence is registered against the petitioner for commission of any offence under the provisions of the I.P.C. or any other law for the time being in force within a period of one month from the date of receipt of a copy of the order, the petitioner shall be at liberty to revive his application for grant of interim custody of the property seized and the same shall be considered by the court below.

Learned counsel for the applicant would submit that in view of that a petition was filed before the C.J.M. as no offence was registered within one month from passing of such order. He would submit that said order dated 11/07/2011 was a bi-parte order and State was represented in such petition. Therefore, it was within the knowledge of the State about such order.

Learned counsel further submits that after passing of such order when within one month thereafter no offence was registered, an application for interim custody of the silver was filed under Section 457 of Cr.P.C. which was decided on 24/09/2011. Learned court below of C.J.M., Korba came to a finding that though prima facie the silver seized appeared to be that of applicant but it was rejected on the ground that the silver which was of the value of Rs. 96,000/- could not have been given on credit by the Kanhaiya Jewelers to the applicant as the applicant was only serving as a store keeper in a hospital. The said order was further assailed in criminal revision before Sessions Judge, Korba in Criminal Revision No. 51/11. The said revision was decided on 19/06/2012 wherein learned court of Sessions Judge also dismissed the petition on the ground that order dated 11/07/2011 passed in Cr.M.P. No. 104/2011 appeared to be not attached in the case diary and the Sessions Judge believed in the police statement and rejected the revision, therefore this instant Cr.M.P.

I have heard learned counsel for the parties at length.

Learned State counsel opposes the application, however he was unable to support any facts for want of necessary papers.

Perusal of the case file would reflect that on 27/08/2012 two weeks time was availed by the State to argue. Further again on 5/03/2013 two weeks time was again prayed for by the State. On such date time was granted to the State to file it''s reply. Again on 1/11/2013 time was sought for by the State. Further by an order dated 22/11/2013 the State was directed to verify and inform to the court why final report was not submitted on the basis of averments of the applicant that Crime No. 01/2010 was said to be registered against the applicant in Police Chowki Rampur, Police Station Kotwali Korba in the year 2010. Again matter came up for hearing on 14/04/2014 and the case was directed to be listed for final hearing. Thereafter, on 16/05/2014 the matter was heard in part. Then on 27/06/2014 again time was prayed by the State counsel on the ground that case file was misplaced and today during the course of argument the same repetition has been made.

Be that as it may, the reply which is filed by the State in this case is also perused. In it''s reply, it is stated that applicant was traveling in motorcycle bearing No. WB/40 H/4973. On being searched, silver bars were recovered from the motorcycle. Thereafter, the investigation was going on. It is stated that the silver bars were of weight 2kg 560 gms and since the applicant could not produce any document about authenticity of such possession, therefore the same was seized. No material has been disclosed in such reply as to what was/is the nature of investigation and what was the stage.

Perusal of order dated 11/07/2011 passed by this court in Cr.M.P. No. 104/2011 would reveal that court has categorically directed that in case, no offence is registered against the petitioner for commission of any offence under the provisions of the I.P.C. or any other law for the time being in force within a period of one month from the date of receipt of a copy of the order, the petitioner shall be at liberty to revive his application for grant of interim custody of the property seized. Perusal of such order shows that it was bi-parte order and was passed in presence of the counsel for the applicant as also counsel for the State. Here in this case the seizure of article was made on 14/10/2010 which is not in dispute. Subsequently, the order of C.J.M., Korba, reflects that prima facie court was of the opinion that silver bars belong to the applicant but considering the fact that applicant was working in hospital as store keeper, he could not possess the silver of amount of Rs. 96,000/- and therefore it was rejected. When it was assailed before revisional court same was also dismissed on the ground that order dated 11/07/2011 passed by this court was not within the knowledge of the State as such no cognizance could have been taken in respect of the order passed.

Learned State counsel is unable to submit any fact as to whether till date any offence has been registered or not? He would submit that still matter is under investigation. This fact cannot be ignored that initially seizure was made on 14/10/2010 and from 14/10/2010 almost about 3 years and 10 months have passed approximately but the State is unable to explain about what is the progress in investigation. The order dated 11/07/2011 passed by this court in Cr.M.P. No. 104/2011 contains a specific direction that in case, no offence is registered against the petitioner for commission of any offence under the provisions of the I.P.C. or any other law for the time being in force within a period of one month from the date of receipt of a copy of the order, the petitioner shall be at liberty to revive his application for grant of interim custody of the property seized. Till today State is unable to explain the fact that whether any offence has been registered or not and would submit that still matter is under investigation.

In these circumstances, this court is of the view that after 14/10/2010 and despite direction of this High Court in Cr.M.P. No. 104/2011 no progress has been made and repetition is made about the fact that investigation is on. Under these circumstances, I am inclined to allow this petition of the applicant and set aside the order dated 19/06/2012 passed by the learned Sessions Judge, Korba in Criminal Revision No. 51/11. Consequently, the application for custody of the silver bars is also allowed. It is directed that the applicant shall be entitled to take custody of the silver bars which was seized by the police on 14/10/2010 after furnishing security of Rs. 1.25 lakhs with one surety for the like amount to the satisfaction of the trial Court and before parting with the property, photograph of the silver bars should be kept along with the weightment panchnama of the goods. Condition is also imposed that the applicant shall not change nature of the goods for a further period of six months.