Harjeet Singh vs State Of U.P. & Another
2017 Latest Caselaw 4975 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 17
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 28812 of 2015
 

 
Petitioner :- Harjeet Singh
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- Manish Tiwary,Ashwini Kumar Awasthi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Prabhat Chandra Tripathi,J.

Heard Sri Imran Ibrahim, Advocate holding brief of Sri Manish Tiwary, learned counsel for the petitioner and learned A.G.A. for the respondents.

In the instant writ petition, the petitioner has made following prayer:-

"a. Issue writ, order or direction in the nature of certiorari quashing the impugned orders dated 27.5.2015 and 21.9.2015 in case no. 6749 of 2014 (State of U.P. Vs. Harjeet Singh) in case crime no. 570 of 2014, under Sections 41, 411, 403, 414 I.P.C., Police Station G.R.P., District Gorakhpur.

b. Issue writ, order or direction in the nature of mandamus directing the learned court below to release property of the petitioner in his favour which has been detained in case no.6749 of 2014 (State of U.P. Vs. Harjeet Singh) in case crime no. 570 of 2014, under Sections 41, 411, 403, 414 I.P.C., Police Station G.R.P., District Gorakhpur, during the pendency of the trial.

c. Issue any other writ, order or direction, as this Hon'ble Court may deem fit and proper on the facts and circumstances of the case.

d. Award cost of the writ petition in favour of the petitioner."

Learned counsel for the petitioner has argued that the petitioner is a broker/commission agent and purchases gold from jewellers in Gorakhpur and then jewelleries are made by the artisans at Amritsar. The jewellery and cash money recovered from his possession belongs to him. Gold ornaments weighing 78.850 grams belongs to him and were purchased from a firm namely N.S. Trading Company 2014 (Annexure 14). The details of the gold articles weighing 767 grams are as follows:-

"i. 95.390 grams was purchased from Shri Prakash and Sons Sarraf Jewellery.

ii. 90.510 grams belongs to Chandra Prakash Sarraf.

iii. 51.330 grams is from Avtar Jewellers and ornament.

iv. 100.15800 is from Manish Chandra Sarraf.

v. 108.500 grams belongs to Alankar Jewellers and

vi. Lastly, 305.470 grams is from M/s Bajrang Bullian Traders."

Photocopies of the receipts are collectively filed (Annexure 6).

Break-up of the cash which has been allegedly recovered from the possession of the petitioner is as follows:-

"i. Rs.3,72,322/- from the S.P. Santosh Amritsar for nose pins.

    Rs.3,58,190/- from N.S. Trading Company for nose pins.

ii. Rs.2,89,580/- and 2,77,083/- from Mohindar Singh Jatindar Pal Singh also for nose pins.

iii. The total all these receipts come to around Rs.12,97,175/- whereas the recovered amount is only Rs.12,09,995/-".

The above averments are mentioned in paragraph 9 of the writ petition.

The petitioner is the sole proprietor of a firm namely Luthra & Sons and also is a commission agent and the firm of the petitioner has issued various bills to the jewellers at Gorakhpur with whom the petitioner had made the transactions. The receipts of Luthra & Sons are filed as Annexure 8. Although, the petitioner brought all these facts before the learned Additional Chief Judicial Magistrate, Railways, Gorakhpur inspite of that the court of learned Additional Chief Judicial Magistrate, Railways, Gorakhpur dismissed the application of the petitioner vide its order dated 27.5.2015 in a mechanical manner (Annexure 9). Thereafter, the petitioner preferred a revision before the learned Sessions Judge, Gorakhpur. The learned Sessions Judge, Gorakhpur summoned a report from the State (Photocopy of the report is Annexure 11). The court of learned Sessions Judge, Gorakhpur also dismissed the revision vide its order dated 21.9.2015 (Annexure 12).

Learned counsel for the petitioner has contended that the court of the learned Sessions Judge, Gorakhpur has dismissed the revision on mere technical grounds. The order of the learned Sessions Judge, Gorakhpur is wholly erroneous and cannot be sustained in the eye of law.

On the other hand, while opposing the prayer of the petitioner learned A.G.A. has submitted that the petitioner was apprehended on 11.11.2014 at 15:15 hours at the Entrance Gate of Booking Hall of the Railway Station, Gorakhpur by the police and recovery made from his possession is enumerated as follows:-

"(a) Cash money to the tune of Rs.12,9,950/- (Twelve Lacs Nine Thousand Nine Hundred Fifty) of various currency notes of various denominations. 

(b) Gold pieces total weight 767 grams.

(c) Gold ornaments total weight 78.850 grams.

(d) One Cheque No.001988 Allahabad Bank, valuation Rs.90,000/-(Ninety Thousand) in favour of Harjeet Singh."

During the investigation, the petitioner Harjeet Singh failed to show any document and a case under Sections 41/411 I.P.C. was registered against him and after investigation charge-sheet under Sections 41, 411, 403, 414 I.P.C. was filed against the petitioner Harjeet Singh and the court has taken cognizance of the offence. While moving the release application the petitioner has enclosed some receipts pertaining to the above-mentioned gold jewelleries and the gold whereupon the verification was conducted by the Joint Commissioner (Executive), Commercial Tax, Gorakhpur Division-A, Gorakhpur in compliance with the order passed by the learned Sessions Judge, Gorakhpur whereupon only two receipts were found to be registered from the commercial tax department, Gorakhpur. For the genuineness of rest of 31 receipts, no report could have been submitted.

Perusal of the order dated 27.5.2015 passed by the learned Additional Chief Judicial Magistrate, Railways, Gorakhpur reveals that the charge-sheet has been submitted against the petitioner Harjeet Singh under Sections 41, 411, 403, 414 I.P.C. and cognizance has been taken of the offence.  Learned Magistrate while passing the order has categorically mentioned that during investigation the petitioner Harjeet Singh did not produce any documentary evidence which could show and clarify that he was a bullion trader and also that no documentary proof can be given by the petitioner Harjeet Singh which may prove that the huge recovery of cash amount of Rs.12,9,950/- only (Twelve Lacs Nine Thousand Nine Hundred Fifty only) which contained the currency notes of various denominations belonged to him. Thereafter, learned Magistrate rejected the release application for releasing the cash amount, gold jewellery and pieces of gold in favour of the petitioner Harjeet Singh.

Aggrieved by the above-mentioned order dated 27.5.2015 the petitioner preferred criminal revision before the court of the learned Sessions Judge, Gorakhpur. Pending disposal of the criminal revision, the court of the learned Sessions Judge, Gorakhpur preferred to seek investigation/enquiry report from the office of the Joint Commissioner (Executive), Commercial Tax, Gorakhpur Division-A, Gorakhpur regarding 33 receipts and other papers which were presented by the petitioner Harjeet Singh before the court of the learned Sessions Judge, Gorakhpur. Office of the Joint Commissioner (Executive), Commercial Tax, Gorakhpur Division-A, Gorakhpur vide its letter no.558/2015-16 dated Gorakhpur 21 August 2015 has informed the court of the learned Sessions Judge, Gorakhpur that all the photocopies of 33 receipts/papers were investigated and enquired from the data base available in the computer of the Commercial Tax Department, Gorakhpur and it was found that out of those 33 receipts S/s Bajrang Bullion Traders, Hindi Bazar, Gorakhpur TIN-09220101341 and Chandra Prakash Sarraf TIN-09420200453 dated 16.10.2006 and 1.8.1990 respectively were only registered with the Commercial Tax Department, Gorakhpur and only these two firms were genuine. Nothing could be said about the rest of 31 receipts because no information regarding these rest of 31 receipts was available at the data base retrieved in the departmental computer of the office of the Joint Commissioner (Executive), Commercial Tax, Gorakhpur Division-A, Gorakhpur.

On the aforementioned reasons, the learned Sessions Judge, Gorakhpur while passing a detailed and speaking order has dismissed the criminal revision and affirmed the order dated 27.5.2015 passed by the learned Additional Chief Judicial Magistrate, Railways, Gorakhpur.

Order passed by the learned Additional Chief Judicial Magistrate, Railways, Gorakhpur dated 27.5.2015 and the order passed by the learned Sessions Judge, Gorakhpur dated 21.9.2015 respectively are well discussed, speaking and legal orders. No illegality, impropriety or perversity could be shown. 

The writ petition sans merit and is liable to be dismissed.

Dismissed.

Order Date :- 5.10.2017

S.Sharma