Kanta Devi Beniwal vs The Economic Offences Wing Bow
2021 Latest Caselaw 1395 Tel

          THE HONOURABLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No. 6279 OF 2020

ORDER:

This Criminal Petition is filed under Section 482 Cr.P.C., to

quash/set aside the proceedings in Crl.M.P.No.889 of 2019 in

Cr.No.710 of 2018, pending on the file of I Additional Assistant

Sessions Judge-Cum-Chief Metropolitan Magistrate, Cyberabad,

L.B.Nagar and for a consequential direction to release the

immovable property i.e., SCO.No.188, dimension 17'-3" x 60',

measuring 115 sq.yards situated at Commercial U.E. Red Square

Market, Hisar, Tehsil and District Hisar, Haryana.

2. Heard Ch.Vidyasagar Rao, learned counsel for the

petitioners and the learned Public Prosecutor and perused the

record.

3. The petitioners herein are the absolute owners and

possessors of property i.e., SCO.No.188, dimension 17'-3" x 60',

measuring 115 sq.yards, situated at Commercial U.E. Red

Square Market, Hisar, Tehsil and District Hisar, Haryana. The

said immovable property was seized by the Police in Cr.No.710 of

2018. Petitioners herein claiming to be the owners of the subject

propert, filed a petition under Section 451 & 457 read with 102

of Cr.P.C for release of the subject property vide Crl.M.P.No.889

of 2019 in Cr.No.710 of 2018. Vide impugned order

dt.13.02.2020, the Court below has dismissed the said

application on the ground that Accused No.1 has used the

particular property for godown and he is also involved in other

crimes. The Court below also held that if the said immovable

property is released, there will be a panic situation for the

investigating agency to trace out the items seized in various

crimes including the present crime as the accused of various

crimes are members of the same company with different names

and there is every possibility to tampering the evidence.

4. Learned counsel for the petitioners referring to the

principle laid down by the Hon'ble Apex Court in Nevada

Properties Private Limited v. State of Maharashtra1, would

submit that the Investigating Officer is not having power to seize

the immovable property under Section 102 of Cr.P.C. He has

also relied on the judgment of the Bombay High Court in

Manisha Babaso Khidrapure v. State of Maharashta2, on the

very same principle.

5. A perusal of the entire material would reveal that the

petitioners herein are owners of the above said property and the

said property was seized by the Police in Cr.No.710 of 2018. The

petitioners herein are not the accused in the said crime. The

petitioners herein have let out the subject property to 'We Future

Maker Life Care Private Limited' represented by the 2nd

respondent. Admittedly, the said property is immovable property

and Section 102 of Cr.P.C deals with the power of Police to seize

certain properties. There is no mention of the seizure of the

immovable property as per Section 102 of Cr.P.C.

2019 SS Online SC 1247

2019 SCC Online Bom 8853

6. The Hon'ble Apex Court in Nevada Properties's case

(supra 1) categorically held that the Investigating Officer is not

having power to seize or attach the immovable property. The

very same principle is followed in Manisha Babaso

Khidrapure's case (supra 2).

7. Considering the said principle and also in view of

Section 102 of Cr.P.C, according to this Court, the impugned

order is not based on the appreciation of the principle laid down

by the Hon'ble Apex Court in Nevada Properties's case (supra

1) and Section 102 of Cr.P.C. It is not a reasoned and well

founded order. Therefore, the same is liable to be quashed.

8. Accordingly, the impugned order is quashed and the

petition filed by the petitioners in Crl.M.P.No.889 of 2019 in

Cr.No.710 of 2018 is allowed. The 1st respondent is directed to

release the subject property i.e., SCO.No.188, dimension 17'-3" x

60', measuring 115 sq.yards, situated at Commercial U.E. Red

Square Market, Hisar, Tehsil and District Hisar, Haryana, within

one (01) week from the date of receipt of a copy of this order.

Miscellaneous Petitions, pending if any, shall stand closed.

__________________ K. LAKSHMAN, J Date: 28.04.2021 dv