Surrinder Singh vs The State of Haryana

A.D. Koshal, J.—This is a petition for revision of the order dated the 22nd of June, 1973, passed by the Chief Judicial Magistrate, Gurgaon directing that four trucks Nos. ASZ 7167 PUJ 963 PUJ 1703 (or PUJ 1793) and MHB 4405 be given on spurdori to their respective owners, who are the respondents before me, subject to each of them furnishing a hond in the sum of Rs. 40,000/- under-taking to produce his truck in Court as and when required by it to do so, not to allow it to be used for the purpose of sumggling food grains-and also that the colour or shape of the truck will not be changed except with the permission of the Court.

The four vehicles above-mentioned were seized by the Gurgaon Police during the investigation of a case in wich 7 trucks full of maiza were said to have crossed the State of Haryana through the Sikanderpur barrier into Delhi and thus to have been involved in the commission of an offence u/s 7 of the Essential Commodities Act. The order sought to be revised was made by the learned Magistrate when the investigation had nut yet been completed and no enquiry or trial was pending before him (although the learned Magistrate erroneously remarked in the impugned order that the police had completed the investigation). He thought that the case was covered by section 516-A of the Code of Criminal Procedure (hereinafter referred to as the Code) which runs thus :

516--A. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any Inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, If the property is subject to speedy or natural decay or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

The State of Haryana went up in revision to the Sessions Court, Gurgaon and the case was heard by Shri Rajinder Lal Garg, Additional Sessions Judge, who was of the opinion that section 516-A had no application to ''the facts of the case inasmuch as under it the Court could make an order regarding the custody of property only in a case in which an enquiry or trail had commenced before it. According to him, the only other provision of law under which the impugned order could be said to have been passed was section 523 of the Code which may be reproduced here with advantage :

(1) The seizure by any police-officer of property taken u/s 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained the custody and production of such property.

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Analysing this provision she learned Additional Sessions Judge concluded that it could only come in to play if the property in question fulfilled one of the following three conditions :

(a) It was seized u/s 51 of the Code.

(b) It was seized in pursuance of an allegation or suspicion that that it was stolen.

(c) It was found under circumstances which creates suspicion of the commission of any offence.

The existence of conditions (a) and (b) was not set up on behalf of the respondents and the learned Additional Sessions Judge proceeded to examine whether their case was covered by condition (c). He observed that the words "or found under circumstances which create suspicion of the commission of any offence" were to be interpreted ejusdem generis with the words preceding, i.e., "taken u/s 51, or alleged or suspected to have been stolen." and added :

In that light, these words also refer to a property, about which an offence is suspected to have been committed. Now it is nobody''s case that any offence was either suspected to have been committed or committed with respect to these trucks According to the prosecution case, these trucks were employed for commission of an offence under the Essential Commodities Act. Such a situation is provided for in section 516-A Criminal Procedure Coda but not in section 523 Criminal Procedure Code. In these circumstances, no order about the disposal of these trucks could be passed u/s 523 Criminal Procedure Code either.

He, therefore, sent the record of the case to the High Court with a recommendation that the order passed by the learned Magistrate be quashed. That is how this revision matter has came up before me.

Although the interpretation placed by the learned Additional Sessions Judge on the words "or found under circumstances which create suspicion of the commission of any offence" does find support in Purshottam Das Banarsidas Vs. State, , decided by Desai, J., sitting singly the weight of authority is in favour of the respondents. In Ajoy Raj Singh Vs. Baj Bahadur Singh and Others, , Niyogi, J., who delivered the judgment of the Division Bench, ruled :

The language of section 523 (1) is as it should be in wider terms so as to cover all conceivable cassis of seizure by the police without reference to the Magistrate.

Purshottam Dass Banarsidas v. State (supra) was dissented from and It was held that section 523 (1) was attracted to a seizure by the police during investigation. After citing cases deeded by the Andhra Pradesh, Madhya. Pradesh, Madhya Bharat and Kerala High Courts, Niyogi, J. remarked that the trend of the decisions of the other High Courts also was that section 523 of the Code was a general provision applicable to all cases of disposal of property before the commencement of an enquiry or trial. This opinion was followed by Isacc, J., in M.V. Ramankutty Vs. State, , and Gopal Singh, J., has also expressed a similar view in Malook Singh v. State AIR 1972 Cri L J 559. With respect, I hold that view to be correct. The words "or found under circumstances which create suspicion of the commission of any offence" have a very wide amplitude and cannot be ascribed the limited meaning given to them in the Allahabad case. Had it been intended that they would apply only to property in respect of which an offence was alleged or suspected to nave been committed the words or alleged or suspected to have been stolen" would not part of the section and would he redundant Further, in that case, the clause under examination would have read something''s like this : "or (sic) under circumstances which create suspension of the commission of any offence in respect of the language used, as it stand''s, is (sic) and not subject to any limitation such as was (sic) it by the learned Additional Sessions Judge on whose reasoning reliance is placed by learned counsel for the State.

In the above view of the matter I cannot accept the recommendation made by the learned Additional Sessions Judge. Accordingly the petition is dismissed and the order passed by the learned Magistrate maintained.