Smt. Lazza Davi And Another vs State Of U.P. And 2 Others
2015 Latest Caselaw 447 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved
 

 

 
Case :- CRIMINAL REVISION No. - 3488 of 2014
 

 
Revisionist :- Smt. Lazza Davi And Another
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Sunil Kumar
 
Counsel for Opposite Party :- Govt.Advocate,Yogesh Kumar Vaish
 

 
Hon'ble Pratyush Kumar,J.

The instant revision is directed against the order dated 16.9.2014 passed by the Chief Judicial Magistrate, Gautam Budh Nagar in case crime no.363 of 2013 & case crime no.367 of 2013, State Vs. Sohanlal, under sections 284, 288, 304-A, 304, IPC and sections 8/11/12 of U.P. Molasses Control Act, 1964, P.S. Jawer, District Gautam Budh Nagar, whereby application of the revisionists for removing seal from their premises was rejected.

In order to appreciate the question involved in the present revision, I would like to place on record briefly facts, which gave rise to the present revision.

On 8.10.13 at 10.05 a.m. Nagendra gave a written report at P.S. Javer stating therein that Sohanlal Tayal and his sons are maintaining molasses and Tobacco godown in village Modelpur @ Sadalpur near Banjara Basti. Due to faulty egress and ingress the underground tank is filled of gas and poisonous molasses. Yesterday Chandra Pal Sharma was asked to enter the underground tank, who died therein. Today at 8.00 a.m. sons of Sohanlal fully knowing the danger to human life lured his uncle Banwari Singh to enter the tank and bring out the dead body of Chandra Pal. His uncle also died in the tank. The first informant requested to take suitable action against Sohan Lal and his sons. On this written report, FIR was scribed and case crime no.363/2013, under sections 284, 288, 304A, IPC was registered. Thereafter, on 12.10.2013 at 3.30 p.m. at the same police station Tulsi Ram Vaishyo, Excise Inspector, Sector 3, Gautam Budh Nagar gave a written report stating therein that on the basis of first information report lodged by Nagendra, he went with his staff to the spot and with the help of S.I. Virendra Singh after unlocking the door of godown, he found that accused Sohanlal Tayal is manufacturing tobacco used in hukka with the help of molasses. He has taken three samples thereof, storage of molasses and manufacturing tobacco therefrom is in violation of provisions contained in section 8 of U.P. Molasses Control Act, 1964 punishable under sections 11 & 12 of the Act. He has requested to register a case under the said sections along with provisions of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. He has further requested to seal the godown to avoid repetition of similar untoward incident. On this written report FIR was scribed and case crime no.367/2013, under sections 8/11/12 of U.P. Molasses Control Act, 1964 was registered and investigation started.

On behalf of revisionists on 10.2.2013 application to unlock the godown was moved before the Court of C.J.M. Gautam Budh Nagar in case crime no.367/2013 wherein allegations made in the first information report were denied and it was stated that Sohanlal had licence to manufacture tobacco with the help of molasses. In case articles stored in the godown were not taken out, they would be put to great loss. On this application report of T.R. Vaisho was obtained, who had reiterated the facts stated in the first information report. According to him, godown was locked and sealed for preventing repetition of similar untoward incident. According to him, no licence was issued to manufacture tobacco or storage of molasses for village Modelpur. During the chemical examination stored molasses was found to be made in a sugar mill, which was an illegal act. In addition to that he had also opposed the application of the revisionists on the ground that godown should not be unlocked lest accused might tamper with the evidence.

Vide order dated 24.2.2014 Chief Judicial Magistrate rejected the application of the revisionists taking into consideration the report of Excise Inspector. This order was challenged by way of criminal revision no.25/2014, Smt. Lazza Devi and another Vs. State of U.P. before the court of Sessions Judge, Gautam Budh Nagar. In the revision fresh facts were stated to wit, the revisionists were not accused in the cases mentioned hereinbefore, they were manufacturing tobacco under licence. Five months had passed. If the godown remained seal, further they would incur heavy loss. The copies filed along with the revision were not provided to the State or the Excise Inspector, therefore, the learned Sessions Judge vide order dated 5.8.2014 allowed the revision, set aside the order dated 24.2.2014 and remanded the matter to the C.J.M. with the direction that after providing opportunity of hearing to both the parties fresh order be passed on merit.

Again, the Chief Judicial Magistrate heard the matter and rejected the application of the revisionists. While doing so he had observed that two persons had died in the underground tank situate in the godown. Molasses was illegally stored there. It was used in the manufacturing of hukka tobacco without licence. He had further observed that claimed licence gave permission to manufacture tobacco with the khandsari molasses not sugar mill made molasses. Chemical examination reveal the stored molasses was sugar mill made, which could not be used without the permission of Molasses Controller, U.P. The claimed licence was issued in the name of accused Sohanlal Tayal not in the names of the revisionists, therefore, the CJM concluded keeping in view the report of the Excise Inspector, facts and circumstances of the case, it would not be in the interest of justice to unseal the godown.

Feeling aggrieved with the impugned order, the present revision has been filed on the ground inter alia impugned order is illegal, without application of mind, there is no provision to seal any premises in Cr.P.C. Under section 41 read with section 102, Cr.P.C. police officer can only search and seize the articles, but he cannot put any seal. Chapter XXXIV of the Cr.P.C. deals with the disposal of property, which is movable except section 456, which relates to restoration of possession of immovable property. In absence of legal provision, the revisionists cannot be deprived of their property, which amounts to violation of constitutional right enshrined in Article 300A of the Constitution of India. The learned C.J.M. has failed to exercise jurisdiction vested in him. The impugned order is liable to be set aside and godown should be unsealed.

Shri Sunil Kumar, learned counsel appearing for the revisionists and learned AGA have been heard at length.

Learned counsel for the revisionists has argued that molasses allegedly illegal can at best be forfeited, but without any legal provision godown cannot be kept under lock and seal. His second argument is that the molasses has not been disposed of till so far, which has resulted continued closing of the godown to the detriment of the revisionists. His third argument is that immovable property cannot be seized. In the last, learned counsel for the revisionists has submitted that due to illegal act of the Investigating Officer and Excise Inspector the revisionists have become shelterless, they are forced to live in a tenanted premises. They have been deprived of their residential accommodation.

Learned AGA has submitted replies to these arguments and submits that there is no difference between seizure and keeping the godown locked and sealed state because place of commission of offence determines the mode of seizure. According to him, property to be seized prescribes the mode whereby seizure could be effected. He submits further that under chapter XXXIV Cr.P.C. the word used "property" can be of any kind. It may be movable or it may be immovable. According to him, non disposal of molasses is not due to lapse of the Investigating Officer, but of the accused Sohanlal.

Before appreciating the arguments submitted before me, I would like to quote the relevant provisions regarding regulation of use and storage of molasses and mode prescribed for their disposal.

U.P. Molasses Control Act, 1964

"Section-8. Sale and supply of molasses.--(1) The Controller [may, with the prior approval of the State Government, by order require] the occupier of any sugar factory to [sell or supply] in the prescribed manner such quantity of molasses to such person, as may be specified in the order, and the occupier shall, notwithstanding any contract, comply with the order.

[(1-a) Notwithstanding anything contained in sub-section (1) the occupier of a sugar factory shall sell or supply forty per cent of the molasses produced in each quarter of a molasses year in the sugar factory to such chemical industries which are actual users of molasses and are granted licence under the United Provinces Excise Act, 1910:

Provided that such quantum of molasses as is not required by the said chemical industries may be sold or supplied by the occupier of the sugar factory to any other unit which is actual user of molasses with the prior approval of the Controller.]

(2) The order under sub-section (1):

(a) shall require supply to be made only to a person who requires it for his distillery or for any purpose of industrial development;

[(aa) may require the person referred to in clause (a) to utilise the molasses supplied to him under an order made under this section for the purpose specified in the application made by him under sub-section (1) of Section 7-A and to observe all such restrictions and conditions as may be prescribed.]

(b) may be for the entire quantity of molasses in stock or to be produced during the year or for any portion thereof; but the proportion of molasses to be supplied from each sugar factory to its estimated total produce of molasses during the year shall be the same throughout the State save where, in the opinion of the Controller, a variation is necessitated by any of the following factors:

(i) the requirements of distilleries within the area in which molasses may be transported from the sugar factory at a reasonable cost;

(ii) the requirements for other purposes of industrial development within such area; and

(iii) the availability of transport facilities in the area.

(3) The Controller may make such modifications in the order under sub-section (1) as may be necessary to correct any error or omission or to meet a subsequent change in any of the factors mentioned in clause (b) of sub-section (2).

[(4) The occupier of a sugar factory shall be liable to pay to the State Government, in the manner prescribed, administrative charges at such rate, not exceeding five rupees per quintal as the State Government may from time to time notify, on the molasses sold or supplied by him.

(5) The occupier shall be entitled to recover from the person to whom the molasses is sold or supplied an amount equivalent to the amount of such administrative charges, in addition to the price of molasses.]"

"Section-11. Contravention of provisions--(1) Whoever contravenes any provision of this Act or the rules or orders made or the directions issued thereunder or wilfully makes any false statement or submits any false return regarding any matter in respect of which he is required under this Act or the said rules, orders or directions to give information shall, on conviction, be punishable with imprisonment of either description which may extend to one year or with fine which may extend to two thousand rupees or with both and, in the case of a continuing contravention, with an additional fine which may extend to one hundred rupees for every day during which the contravention continues after conviction for the first contravention.

(2) Any Court trying an offence punishable under sub-section (1) may direct that any molasses in respect of which the Court is satisfied that such offence has been committed shall be forfeited to the State Government."

"Section-12. Offence by companies--(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), wherein offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of, any director, manager, managing agent, secretary or any other officer of the company, such director, manager, managing agent, secretary or other officer shall also be deemed to be guilty of that offence and shall liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section :--

(a) "company" means any body corporate and includes a firm or other association of individuals, and

(b) "director" in relation to a firm is a partner in the firm."

"Section-14. Power to enter, search and seize.---(1) A police officer not below the rank of Sub-Inspector or an Excise Officer of or above the rank of Sub-Inspector (Excise) may--

(a) enter and search at any time any premises in which he has reason to believe that any molasses in respect of which an offence punishable under this Act has been or is about to be committed is kept or concealed;

(b) seize such molasses or any box, packet receptacle, package or coverage containing such molasses and any books, accounts, documents or statement relating to transaction in such molasses; and

(c) detain, search and arrest any person whom he has reason to believe to be guilty of any offence punishable under this Act.

(2) All searches made under this section shall be in accordance with the provisions of the Code of Criminal Procedure, 1898.

(3) A Police Officer not below the rank of Sub-Inspector or any Excise Officer of or above the rank of Excise Inspector may investigate any offence punishable under this Act and committed within the limits of the area in which such officer exercises jurisdiction.

(4) Any such officer may exercise the same powers in respect of such investigation as an officer-in-charge of a police station may exercise in relation to a cognizable offence under the provisions of Chapter-XIV of the Code of Criminal Procedure, 1898."

"Section-15. Report about seizure.--[(1) A report about any molasses or articles seized under Section 14 shall as soon may be after such seizure, be submitted to the Magistrate having jurisdiction, who may after making such inquiry, if any, as he considers necessary and after taking sample of the molasses give such direction for its disposal in accordance with the orders of the Controller as he may think fit.]

(2) Where no prosecution is instituted within six months of such seizure, the Magistrate may order the release of such molasses or articles in favour of the persons from whom they were seized."

U.P. Molasses Control Rules, 1974

"Rule-37. Disposal of molasses and articles forfeited. [Sections 11(2) and 22].--Disposal of molasses or articles or both forfeited under the Act or the rules framed thereunder shall be deferred until the expiration of the period of appeal against the order of forfeiture, or if any appeal has been made against such order, till the appeal is disposed of."

"Rule-38. Manner of disposal of molasses forfeited.--(1) All molasses forfeited under sub-section (2) of Section 11 are liable to forfeiture under the Act but not released by the Controller in favour of the accused under section 16 on payment of value but not accepted by the accused shall be disposed of in accordance with sub-rule (2).

(2) All forfeited molasses of weight of one hundred quintals or less shall be sold by public auction by an order of the Collector. In case forfeited molasses exceed the above weight the Collector will make a reference to the Controller and molasses will be disposed of under his orders in a manner so as to secure its utilization to the best advantage."

"Rule-39. Head of account of deposit money received by Controller.[Sections 16 and 22].-- Any sum of money received by the Controller under Section 16 shall be credited to Government under the head "XLVI Miscellaneous Molasses Penalties."

"Rule-40. Appeal against the order of the Controller.-- Any person aggrieved by an order of the Controller under sub-section (1) or sub section (3) of Section 8 may file an appeal to the State Government within thirty days of the order appealed against."

In continuation of the above, I would also like to reproduce here relevant sections of Cr.P.C. referred by the learned counsel for the revisionists, which are as under:-

"Section-41. When police may arrest without warrant--(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e)who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110."

"Section-102. Power of police officer to seize certain property--(1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.]"

"Section-451. Order for custody and disposal of property pending trial in certain cases.--When any property 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 and 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.

Explanation.-- For the purposes of this section," property" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody.

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."

In the present case, first point to be considered is whether the case property is only molasses or it will also include the place of its storage that is underground tank with its faulty egress and ingress situate within the godown.

The revisionists seek unsealing of the godown and the respondents oppose the request on the ground of storage of illegal molasses and its faulty underground tank. In my opinion, in case crime no.363/2013, under sections 284, 288, 304A, IPC subsequently added section 304, IPC wherein murder of two persons was involved. The underground tank, its faulty egress and ingress and place wherein it situate fall within the meaning of case property. In case crime no.367/13, under sections 8/11/12 of U.P. Molasses Control Act, 1964 case property is illegally stored and used molasses.

Section 14 of U.P. Molasses Control Act, 1964 confers power on police officer not below the rank of Sub-Inspector or Excise Officer above the rank of Sub-Inspector Excise to search any premises suspected to be used for storage of illegal molasses seized it along with its means of storage and any document containing account of transactions. In this regard, section 15 of the said Act makes such seizure reportable to the Magistrate having jurisdiction, who will give direction for its disposal in accordance with the orders of the Controller. Rules framed under this Act and contained in Chapter VII provide for disposal of such molasses and articles fortified. Rule 37 prescribes that disposal or forfeiture of molasses or articles shall be deferred until expiry of period of appeal, as prescribed in section 9 of the Act or when such appeal is filed till its disposal. Rule 38 further provides manner of disposal. Rule 40 provides remedy of appeal against the order of the Controller.

Since for disposal of molasses and articles used for its storage full scheme with provision of appeal has been provided in the relevant rules, I do not think that provisions of Cr.P.C. can be applied for releasing the molasses or articles i.e. underground tank where it has been stored. To this extent application of the revisionists before the court below and revision to this extent appear to be not maintainable. Without exhausting the special remedy, case property of case crime no.367/2003 of P.S. Jewar cannot be disposed of by a criminal court.

It has been candidly stated before me by the counsel for the revisionists that revisionists do not want to have the custody of molasses. They simply want their premises to be unsealed and unlocked, so that, they may use it. As observed hereinbefore, that the premises also constitute place of occurrence in reference to case crime no.363/2013, along with the way in which the underground tank was constructed. They will also be subject matter of the trial. Since offence punishable under section 304, IPC is triable by Court of Session, its disposal may be made under section 451 or 452, as the case may be by a criminal court provided immovable property also included within the meaning of word "property" under Chapter XXXIV of Cr.P.C. Learned counsel for the revisionists has read over provisions contained in sections 41 and 102, Cr.P.C. to show that seizure can only be made of movable property not immovable property. Here it will be pertinent to observe that disposal of property, as contemplated in Chapter XXXIV of the Cr.P.C., is not confined to such seizure. Any property, which falls within the category enumerated in section 451, 452, Cr.P.C. can be disposed of by the criminal court. Explanation to section 451 clarifies that "property" includes property of any kind. The word "property" has been used here generically. There is nothing to exclude here immovable property. My view is fortified from the observations made in Ramti Bai Vs. Nathu, AIR 1961 MP 25. To this extent arguments advanced on behalf of revisionists are rejected.

The last question remains whether in absence of any legal provision property of the revisionists can be sealed. Learned counsel for the revisionists has laid great emphasis on this fact that there is no provision under which property can be sealed. Argument of the learned counsel for the revisionists is superficially persuasive. On this point learned AGA has submitted that in respect of immovable property keeping in view its nature seizure would include locking and sealing of the premises.

Here, it would be gainful to refer Black's Law Dictionary wherein word "seizure" has been given the following meaning:"-

"Seizure:-The act or an instance of taking possession of a person or property by legal right or process; esp., in constitutional law, a confiscation or arrest that may interfere with a person's reasonable expectation of privacy."

In view of the meaning indicated above, I am in agreement with the argument advanced on behalf of the respondents that seizure will include locking and sealing both. This argument of the revisionists is also rejected.

The learned CJM while passing the impugned order has given cogent reasons to reject the prayer of the revisionists. Some of the reasons are germane for the decision making. In this regard they are prevention of repetition of similar untoward incidents and ruling out the possibility of tampering by the accused persons of the evidence contained therein.

I think only the court seized with the trial of the case would be the best Forum to decide till such time the case property should be preserved in its present state, so that the fair trial can take place. It has been seen that the revisionists have been deprived of their property due to their own fault i.e. by permitting it to be used for illegal purposes and the property requires to be preserved for fair trial. It has been seized under the legal provisions, therefore, there is no violation of revisionists' constitutional right, as protected in Article 300A of the Constitution of India.

In view of the above, I am of the opinion that revision lacks merit and deserves to be dismissed with the liberty to the revisionists that at the proper time and proper stage of trial they will be at liberty to seek release of the property in their favour by the competent court and observations made in this order will have no bearing on consideration of their prayer for release.

With these observations, the revision is dismissed.

Order Date :- 8.5.2015

T. Sinha