Tripurari Prasad Yadav vs The State Of Jharkhand
2022 Latest Caselaw 227 Jhar

                                                       1

                       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     W.P.(C) No. 2378 of 2020
                Tripurari Prasad Yadav                                       ..... Petitioner
                                                Versus
                1. The State of Jharkhand
                2. The Deputy Commissioner, Deoghar
                3. The Sub-Inspector, Excise, Sadar Anchal, Deoghar          ..... Respondents
                                                 -----

CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

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                For the Petitioner:        Mr. Indrajit Sinha
                For the State:             Mr. Ankit Kumar, A.C to S.C (Mines)-I
                                                  -----

08/03.02.2022         The present writ petition has been filed for issuance of direction upon the

respondents to bring on record the order passed by the respondent No.2 by

which the premises of the petitioner, namely, M/s C.D.P Laboratories, Sultanganj

Road, Khijuria, Deoghar (hereinafter referred to as 'the said premises') situated

at Plot No. 50, Mouza-Khijuriya, No. 420, P.S-Mohanpur, District-Deoghar,

measuring an area of 01 acre was ordered to be sealed. The petitioner has also

prayed for quashing the order of seizure passed by the respondent No.2 with

respect to the said premises.

2. Mr. Indrajit Sinha, learned counsel for the petitioner, submits that on

25.04.2014, a lease deed was executed by the petitioner in favour of his son-

Devendra Kumar for a period of five years commencing from 25.04.2014 till

31.03.2020 to start manufacturing and trading of Allopathic medicines in the

said premises. Thereafter, Devendra Kumar started the said business over the

leased property in the name and style of M/s C.D.P Laboratories. On 14.02.2017,

an FIR was lodged against one Utam Kumar and the petitioner's son-Devendra

Kumar @ Devendra Yadav under Sections 272/273/379/411 IPC and Section

47(a) of the Jharkhand Excise Act, 1915. Thereafter, Devendra Yadav @

Devendra Kumar filed an application before the Sub-Divisional Judicial

Magistrate, Deoghar for unsealing of the said premises in connection with

Mohanpur P.S. Case No. 32/2017 (G.R. No. 268/2017), however, the same was

dismissed vide order dated 03.10.2019. Aggrieved with the said order, Devendra

Kumar preferred Cr. Revision No. 206/2019 in the Court of the learned Sessions

Judge, Deoghar, which was also dismissed vide order dated 25.06.2020 with

following observations:

"6. On perusal of lower court record, it transpires that after initiation of the proceeding for cancellation of the manufacturing license as per provisions of Excise Act, Rules and M and T P Act/Rules, show-cause notice to revisionist was issued by the D.C, Deoghar for filing explanation. It is reported that in that very proceeding the said premises has been locked and sealed and manufacturing license of the company has been cancelled.

7. In this way, it is very much clear that in connection with Mohanpur P.S. Case No. 32 of 2017 said premises has not been locked and sealed, hence learned magistrate was having no jurisdiction to entertain and pass order in respect to subject matter which is not the subject matter of the case concerned. If revisionist was having any grievance against the order of the learned Deputy Commissioner he would have challenged it before the competent forum under the relevant provision of law but it has not been done. Thereafter, when the locking of the premises has not been done in connection with Mohanpur P.S. Case No. 32 of 2017 then the learned Judicial Magistrate was having no jurisdiction to go through the legality, propriety as well as correctness of the order passed by the D.C, Deoghar invoking the jurisdiction under the provisions of Excise Act/Rules, Medicinal and Toilet Preparation (Excise Duties) Act/Rules. Hence, I am of the view that rejection of the prayer by the learned magistrate is correct which requires no interference by this court.

8. In the result, this revision petition is being dismissed and impugned order is hereby upheld. It is made clear that if revisionist is having any grievance against the order of the learned Deputy Commissioner, Deoghar by which manufacturing license of the company has been cancelled and premises of the company has been locked and sealed, then he may challenge its legality, validity etc. before the competent forum by challenging that very order under the relevant provisions of Excise Law and Medicinal and Toilet Preparations (Excise Duties) Act and Rules. Let a copy of this order along with lower court record be sent to the court concerned for information and needful."

3. Learned counsel for the petitioner further submits that from the aforesaid

observations made by the learned Sessions Judge, Deoghar, it would be evident

that the said premises was not locked or sealed in connection with the criminal

case registered against the petitioner's son i.e. Mohanpur P.S. Case No.

32/2017. In the meantime, the petitioner's son preferred appeal being Appeal

Case No. 01/2020 in the Court of the Excise Commissioner, Jharkhand, Ranchi

for setting aside the order passed by the respondent No.2 regarding

confiscation of goods and valuables lying in the said premises and Dew Water

Plant adjacent thereto. The Excise Commissioner, Jharkhand, Ranchi vide order

dated 17.08.2021, after examining the documents available on record, observed

that no specific order for sealing of the said premises was passed by any

competent authority. He also acknowledged the observation made by the

learned Sessions Judge, Deoghar in Cr. Rev. No. 206/2019 that locking of the

said premises was not done in connection with Mohanpur P.S. Case No.

32/2017. It is also submitted that since the order of sealing was not passed in

connection with Mohanpur P.S. Case No. 32/2017, the prayer of the petitioner's

son was not considered by the Excise Commissioner, Jharkhand, Ranchi giving

him liberty to approach the respondent No.2 or any other competent authority

for redressal of his grievance. Thereafter, Devendra Kumar filed Misc. Petition

No. 19/2021-22 in the Court of the respondent No.2 for unsealing of the said

premises so as to remove the valuable articles therefrom as well as for directing

the Excise Department to destroy the expired medicines which may be found

inside. The said case was taken up by the respondent No.2 on 23.11.2021 and

notice was issued to the Excise Superintendent, Deoghar to appear in the same.

4. Under the aforesaid factual background of the case, learned counsel for

the petitioner submits that no order was ever passed by the competent

authority for sealing of the said premises and hence the authorities may be

directed to forthwith unseal the same. Otherwise also, the period of lease deed

executed by the petitioner in favour of his son-Devendra Kumar has already

expired.

5. Mr. Ankit Kumar, learned A.C to S.C (Mines)-I appearing on behalf of the

respondents, submits that though counter affidavit was filed on behalf of the

respondent Nos. 2 & 3 on 23.09.2020 contesting the writ petition on merit, yet

pursuant to the order dated 07.12.2021 passed by this Court, a supplementary

counter affidavit dated 23.12.2021 has been filed on behalf of the respondent

No.2 (sworn and signed by the respondent No.2 himself) wherein it has been

stated that the power under Section 126 of the Medicinal and Toilet Preparations

Rules, 1956 has not been invoked. The license of the said premises was

cancelled by the respondent No.2 vide order dated 14.03.2017 and accordingly

letter No. 175 dated 15.03.2017 was issued. The respondent No.2, however,

came to know that confiscation order or seizure order was not passed by his

predecessor(s) with respect to the said premises and the respondent No.3 made

misleading statement in paragraph 15 of the counter affidavit dated 23.09.2020

that an order of confiscation was passed by the respondent No.2. Accordingly,

an explanation has been sought from the erring officials of the Excise

Department i.e. the Excise Superintendent, Deoghar and the Sub-Inspector,

Excise, Sadar, Anchal, Deoghar regarding the misleading statement made in the

said counter affidavit. It has also been stated that for the same cause of action

i.e. for unlocking of the said premises, Misc. Petition No. 19/2021-22 has been

filed by the petitioner's son-Devendra Kumar in the Court of the respondent

No.2 in pursuance of which, the notice has been issued to the Superintendent of

Excise, Deoghar, who has appeared in the case and has contested the prayer of

Devendra Kumar made in the said miscellaneous petition, which is still pending.

6. Mr. Indrajit Sinha, learned counsel for the petitioner, however, submits

that the prayer for unsealing of the said premises has been made in Misc.

Petition No. 19/2021-22 before the respondent No.2 only for the purpose of

removal of the valuable articles and for directing the Excise Department to

destroy the expired medicines kept inside. Since no competent authority has

passed the order for sealing of the said premises, there is no question of any

order now to be passed by any authority including the respondent No.2, rather

the authorities are now required to forthwith open the seal of the same.

7. Learned counsel for the petitioner puts reliance on a judgment dated

11.09.2020 rendered by this Court in the case of S.R.P. Oil Pvt. Ltd. Vs. The

State of Jharkhand & Anr. reported in 2020(4) JLJR 125 wherein it has

been held that the power of sealing of property carries civil consequence and as

such a person can be deprived of the property only by following due procedure

in accordance with law.

8. I find substance in the aforesaid argument of learned counsel for the

petitioner. This Court vide order dated 07.12.2021, had observed that though a

counter affidavit was filed on behalf of the respondent Nos. 2 & 3 justifying the

action of sealing of the said premises, yet no such order of confiscation of

articles much less sealing of the property in question was brought on record.

Hence, the respondent No.2 was directed to file a supplementary counter

affidavit sworn by him on the said aspect. The respondent No.2 has taken a

stand in the supplementary counter affidavit dated 23.12.2021 that no

confiscation order or seizure order with regard to the premises in question was

passed by the respondent No.2 and as such the statement made in the earlier

counter affidavit was misleading.

9. The respondents in the counter affidavit as well as in the supplementary

counter affidavit have not brought on record any order passed by the

competent authority regarding sealing of the premises in question. Though Misc.

Petition No. 19/2021-22 has been filed by Devendra Kumar making prayer for

unsealing of the said premises, yet the same is for the purpose of removal of

the valuable articles and also for directing the Excise Department to destroy the

medicines kept therein. Moreover, on perusal of copy of the lease deed dated

25.04.2014 executed by the petitioner in favour of his son-Devendra Kumar, a

copy of which has been annexed as Annexure-1 to the writ petition, it appears

that the same has already ended on 31.03.2020.

10. This Court in the case of S.R.P. Oil Pvt. Ltd. (Supra), after citing various

judgments of the Hon'ble Supreme Court, has held that Section 102 Cr.P.C

postulates seizure of the property. However, an immovable property cannot, in

its direct sense, be seized, though documents of title etc. relating to immovable

properties can be seized, taken into custody and produced. Language of Section

102 Cr.P.C. does not support the interpretation that the police officer has the

power to dispossess a person who is in occupation, to take possession of an

immovable property in order to seize it. It has been further held that the right to

property may not be a fundamental right any longer, but the same is still a

Constitutional right under Article 300A and it is also a human right and,

therefore, no person can be deprived of his property, except by the authority of

law. The High Court exercising its jurisdiction under Article 226 of the

Constitution of India does not only have the power to issue writ of mandamus,

rather is duty bound to exercise such power where the government or a public

authority has failed to exercise or has wrongly exercised discretion conferred

upon it by a statute, or a rule, or a policy decision or has exercised such

discretion with mala fide or on irrelevant consideration. It has been also held

that the power of sealing of property carries civil consequences. A person can

be deprived of the property only by following due procedure in accordance with

law. No person shall be deprived of the right of property, except by the

procedure prescribed under law.

11. This Court having found that no authority has passed any order for

sealing of the premises in question, the same is required to be unsealed/opened

by the authorities without any further delay. Hence, the respondent No.2 is

directed to take appropriate measures for unsealing/opening of the premises in

question forthwith. So far as Misc. Petition No. 19/2021-22 pending before the

respondent No.2 is concerned, the same will be considered in accordance with

law as the present order is only confined to unsealing of the premises in

question at the instance of the petitioner. During the process of unsealing of the

said premises, an inventory of the articles lying therein shall be prepared by the

authorities in presence of the petitioner and Devendra Kumar which can be used

in any legal proceeding pending against M/S CDP Laboratories and Devendra

Kumar.

12. The present writ petition is accordingly disposed of with the aforesaid

directions.

Satish/A.F.R                                                       (RAJESH SHANKAR, J)