Shafeeq Ahmad Mir vs Marifat Yousuf & Anr
2022 Latest Caselaw 1751 j&K/2

                                                            S.No.27
                                                            Regular List

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR


                          CRM(M) No.165/2021
                          CrlM No.583/2021
                          CrlM No.584/2021

Shafeeq Ahmad Mir
                                                         .....Petitioner(s)

  Through: Mr. Danish Majid vice Mr.A.M.Dar, Advocate

                                 V/s
Marifat Yousuf & Anr.
                                                         ..... Respondent(s)
  Through: Mr. Hazim Qureshi, Advocate

CORAM:
    HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                 JUDGMENT

12.10.2022

1) The petitioner has challenged orders dated 15.05.2021 and 18.05.2021

passed by learned Judicial Magistrate 1st Class Pulwama, whereby the

metal scrap seized by the police of Police Station Litter Pulwama has

been directed to be released in favour of respondent No.1.

2) As per the case of the petitioner he is suspended Director and share

holder of M/S Mir Steel Rolling Mills Pvt.Ltd. Lassipora. It is averred

that on 30.04.2021 the petitioner came to know that three persons

namely, Bilal Hussain Anim, Yushra Mushtaq and Safdar Ali Wani

clandestinely entered the premises of the petitioner's Unit alongwith

their truck bearing No.JK05-9787 and when the petitioner reached the

spot he found that the aforenamed persons had loaded the truck with

machinery. When the petitioner inspected the premises of the Unit he

found that the machinery and metal scrap worth crores of rupees has

been taken away by the aforesaid persons.

CRM(M) No.165/2021

3) The petitioner is stated to have approached the concerned Police

Station for lodgment of an FIR but the FIR was not lodged which

compelled him to approach the Chief Judicial Magistrate Pulwama

with an application under Section 156(3) of Cr.P.C. It is further

averred that after receiving the report from the police, the Chief

Judicial Magistrate recorded the preliminary evidence of the petitioner

and directed inquiry of the case in terms of Section 202 of the Cr.P.C.

It is alleged that respondent No.2, the SHO concerned released the

truck in question without any orders of the Court and vide the

impugned order the metal scrap seized by the police has been released

in favour of respondent No.1.

4) Respondent No.1 has contested the petition by filing reply thereto. In

the reply it is submitted that the Unit of the petitioner has been taken

over by the Jammu and Kashmir Bank, as the petitioner has become

defaulter due to non-payment of loan amount. It has been submitted

that no metal scrap machinery was taken away from the premises of

M/s Mir Steel Rolling Mills as the same is in possession of the Jammu

and Kashmir Bank and is being guarded by the security personnel.

According to respondent No.1 the metal scrap and the machinery that

was found loaded in the truck belongs to M/S Build Tech Industries

whose proprietor is Safdar Ali and that the said indsutry is located

adjacent to Mir Steel Rolling Mills. It has been submitted that the

metal scrap has been purchased by respondent No.1 from the afore

said Safdar Ali. It has been further submitted by respondent No.1 that

when these facts came to the notice of the police, the seized metal

CRM(M) No.165/2021

scrap was released in favour of respondent No.1 under the orders of

the Court.

5) Respondent No.2, the SHO concerned has also filed the status report.

In the status report respondent No.2 has confirmed that the metal

scrap and the machinery that was found loaded in the truck in question

was taken away from the premises of M/S Build Tech Industries

which is a factory located opposite to the factory of the petitioner. It

is further averred that M/s Build Tech Industries belongs to one Safdar

Ali, who during questioning, has confirmed the fact that he has sold

the metal scrap to respondent No.1. Respondent No.2 has further

submitted that upon receiving the complaint from the petitioner, the

Police visited the spot and found that the factory of the petitioner was

locked and two persons were present in the said premises who were

guarding the building on behalf of the Jammu and Kashmir Bank. It

was disclosed by these guards that the said factory was under the

possession of National Company Law Tribunal and that they are

performing their duties round the clock. The said guards informed

that no machinery or metal scrap has been taken outside the factory

since 11.08.2020, as nobody is permitted to enter into the premises of

the factory. The police found the complaint of the petitioner without

any substance.

6) I have heard learned counsel for the parties and perused the record.

7) Learned counsel for the petitioner has vehemently argued that the

order impugned passed by the learned Magistrate is illegal inasmuch

as the learned Magistrate has released the stolen metal scrap in favour

CRM(M) No.165/2021

of respondent No.1 who has no title or right to get the possession of

the same. It has been submitted that the metal scrap belongs to the

petitioner who is a share holder of M/S Steel Rolling Mills from

whose premises the same has been stolen away, regarding which, the

petitioner has already lodged a complaint before the Chief Judicial

Magistrate pulwama.

8) The moot question which is required to be determined is as to whether

or not the metal scrap in question has been taken away from the

premises of the factory belonging to the petitioner. The police has,

clearly in its report, submitted that the metal scrap that has been

released in favour of respondent No.1 has not been stolen from the

premises of the petitioner's factory but the same has been taken away

from the premises of another factory namely M/S Build Tech

Industries owned by one Safdar Ali Wani. The said indsutry is

located just adjacent to the factory of the petitioner. It has also been

indicated by respondent No.2 in its report that respondent No.1 has

purchased the metal scrap from said Safadar Ali. In these

circumstances when the petitioner's claim relating to the metal scrape

in question has been found to be false by the Police, the learned trial

Magistrate has not committed any error or illegality by releasing the

metal scrap in question in favour of respondent no.1.

9) The petitioner has already filed a complaint alleging therein that the

metal scrap in question has infact been stolen from his premises and

the said complaint is pending consideration before the Chief Judicial

Magistrate, Pulwama. In case the learned Magistrate finds that any

CRM(M) No.165/2021

offence is made out on the basis of the material on record, the

question of recovery of the metal scrap or its value can be considered

afresh at the time of final decision of the said complaint. The learned

Magistrate while releasing the metal scrap in question has put a

condition that the same shall be released subject to furnishing of

indemnity bond from the complainant undertaking therein that in case

better claimant is found he will indemnify such person depending

upon the initial market value of seized metal scrap and further

direction from the appropriate forum. Thus, incase the petitioner

succeeds in proving his case in the complaint filed by him, his

interests stand safe guarded by the learned Magistrate.

10) For the foregoing reasons, I do not find any illegality or infirmity in

the order passed by the learned Magistrate. The same does not call for

any interference. The petition lacks merit and is dismissed

accordingly.

(SANJAY DHAR) JUDGE SRINAGAR 12.10.2022 Sarveeda Nissar

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No