Bombay High Court
Hasankhan vs The State Of Maharashtra on 4 December, 2013
Bench: A.M. Thipsay
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 997 of 2013
Hasankhan s/o. Sherkhan Pathan,
Age : 47 years,
Occupation : Business,
R/o. Sillod, Taluka : Sillod,
District : Aurangabad. .. Petitioner.
versus
1. The State of Maharashtra.
2. The Police Inspector,
Gangapur Police Station,
Gangapur, Taluka : Gangapur,
District : Aurangabad.
3. The District Supply Officer,
Aurangabad,
District : Aurangabad. .. Respondents.
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Mr. Mobin H. Shaikh, Advocate, for the petitioner
Mr. S.R. Palnitkar, Additional Public Prosecutor, for
the respondent nos.1 to 3.
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CORAM : ABHAY M. THIPSAY, J.
DATE : 4TH DECEMBER 2013
ORAL JUDGMENT :
1. Heard Mr. M.H. Shaikh, the learned Counsel for the
petitioner. Heard Mr. S.R. Palnitkar, the learned Additional Public
Prosecutor, for the respondents.
2. Rule. By consent, Rule is made returnable forthwith. By
consent, heard finally.
3. The petitioner is the accused no.3 in Crime No. II-49/2012,
registered at Police Station, Gangapur [District : Aurangabad], in respect
of the offences punishable under Sections 3 and 7 of the Essential
Commodities Act, 1955. Food grains - i.e. wheat - weighing 127 quintals
came to be seized by the Police from a truck. Admittedly, the wheat
belongs to the petitioner. The petitioner applied to the Magistrate for the
return of the seized wheat, but the application was rejected by the Judicial
Magistrate (First Class)(2nd Court), Gangapur. The petitioner challenged
the order of the Magistrate by filing a Criminal Revision Petition in the
Court of Sessions, but the learned Additional Sessions Judge, Vaijapur,
who heard the revision, dismissed it with costs, vide order dated
11-9-2013.
Being aggrieved thereby, the petitioner has approached this Court,
by filing the present petition, invoking the constitutional jurisdiction of
this Court.
4. According to the petitioner, he is a merchant dealing in food
grains, and that, he holds a license issued by the Agricultural Produce
Market Committee, Sillod [District : Aurangabad], for that purpose. It is
submitted that, the wheat came to be seized on the suspicion that, it was
meant for being made available for distribution in the fair price shop; but it
was being transported for the purpose of selling the same in open market
at a higher rate. It is submitted that, there is absolutely no evidence to
support the suspicion. It is not in dispute that, the investigation is over and
the charge sheet has been filed, as back as, on 29-12-2012.
5. I have gone through the order passed by the Magistrate,
refusing to hand over interim custody of the seized wheat to the petitioner.
It appears from the order passed by the Magistrate that, the Investigation
Officer had submitted before the Magistrate that, report in respect of the
seized wheat had been sent to the Deputy Collector, Aurangabad, for
necessary orders. The Magistrate observed that, there was provision of
confiscation in the Essential Commodities Act, 1955, and that, the District
Supply Officer had not filed his say till date. It is on this ground that, the
Magistrate refused to hand over interim custody of the seized wheat to the
applicant.
In the proceedings before the Court of Sessions also, it was
observed by the learned Judge that, the District Supply Officer had not
filed his report, and had not passed the orders as regards confiscation of
the seized goods, and that, therefore, 'it was not known, whether such
order, as regards, confiscation of seized goods, had been passed, or not'.
The learned Additional Sessions Judge observed that, 'there was nothing
to indicate that, confiscation proceedings had commenced', but still,
refused to give interim custody of the seized wheat to the petitioner, on the
ground that 'the District Supply Officer had not reported that the
confiscation proceedings had not commenced'.
6. I am of the opinion that, the reasoning and the approach
adopted by the Magistrate, as also, by the Additional Sessions Judge, is
rather perverse.
7. It is true that, after the commencement of confiscation
proceedings, the Magistrate would not have jurisdiction to return the
goods seized, in exercise of the power under Section 457 of the Code of
Criminal Procedure, 1973. However, in this case, there was nothing to
indicate that the confiscation proceedings had commenced. The
Magistrate wrongly put the burden of establishing that, the confiscation
proceedings had not commenced on the petitioner, and that too, by
demanding that the same should be stated categorically by the District
Supply Officer. This was indeed strange. If the confiscation proceedings
had commenced, it was for the investigating agency, or the representative
of the District Supply Officer, who had notice of the proceedings, to say
so; and their failure to say that the confiscation proceedings had
commenced, could not have been viewed in their favour and adversely to
the petitioner, who had already claimed that he had not received any notice
in respect of confiscation proceedings.
8. The same perversity appears in the order passed by the
Additional Sessions Judge also. The normal and regular process of
reasoning was given a go by, by the Additional Sessions Judge, and that,
'that the District Supply Officer had failed to mention that, confiscation
proceedings had commenced', was taken as a factor adverse to the
petitioner, by holding that 'it was not known, whether they had
commenced the confiscation proceedings, or not'. When the petitioner had
claimed that he had not received any notice in respect of confiscation
proceedings, and when the District Supply Officer, and / or the
Investigating agency had not controverted it, the claim of the petitioner
ought to have been believed. Assuming for the sake of arguments that, the
court could not know that the confiscation proceedings had started, then
the court ought to have considered exercising the powers under Section
457 of the Code.
9.
The charge sheet has already been filed. I have glanced
through the copy thereof, as has been annexed to the Application, and the
complete papers of investigation made available to me, by the learned
Additional Public Prosecutor. In my opinion, this is case where the
interim custody of the seized wheat needs to be handed over to the
petitioner, on his executing an appropriate bond in the sum of Rs.
1,40,000/-, which is stated to be the estimated price of the seized wheat.
10. The petition is allowed. The impugned orders dated
16-1-2013 and 11-9-2013 are quashed and set aside. The learned
Magistrate shall hand over the interim custody of the seized wheat to the
petitioner, on his executing a bond in the sum of Rs. 1,40,000/- [Rupees
one Lac forty thousand], containing appropriate conditions to be imposed
by the Magistrate. The bond should be executed before the Magistrate.
11. Rule is made absolute in the aforesaid terms.
( ABHAY M. THIPSAY )
JUDGE
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bgp/criwp997
