Tripura High Court

Sri Krishna Gopal Das vs The State Of Tripura on 18 February, 2022

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                       Crl. Rev. P. No. 49 of 2021
Sri Krishna Gopal Das,
S/O Lt. Khokan Chandra Das, R/O Jirania, Vidyanagar,
PO and PS Jirania, Dist- West Tripura
                                                  ............... Petitioner(s).
                                      Vs.
1.    The State of Tripura,
represented by the Principal Secretary to the
Government of Tripura, having his office at New
Secretariat Complex, Gorkhabasti, PO- Kunjaban, PS
East Agartala Sub Division- Sadar, District- West
Tripura, Pin- 799010.
2.   Manoj Goon,
S/O Lt. Dinesh Goon, R/o North Ramchandradraghat,
PS Khowai, Dist Khowai Tripura
                                                 ............... Respondent(s).

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Petitioner(s) : Mr. Debajit Biswas, Advocate.

Mr. C. Debnath, Advocate.

For Respondent(s) : Mr. S. Debnath, Addl. P. P.

Ms. Rumela Guha, Advocate.

Ms. Sudipa Nath, Advocate Mr. Mrinmoy Debnath, Advocate.

Mr. Manoj Kumar Biswas, Advocate.

Judgment & Order            :     18th February, 2022.
Whether fit for reporting :       No.


                  JUDGMENT AND ORDER(oral)

               Petitioner   has     challenged    the    judgment     dated

18.01.2019 delivered by the Sessions Judge of Dhalai Judicial

District in Criminal Appeal No.3 of 2019.

[2] Heard Mr. Debajit Biswas, learned advocate appearing

for the petitioner along with Mr. C. Debnath, learned advocate. Also

heard Mr. S. Debnath, learned Additional Public Prosecutor

appearing for the State respondent and Ms. Rumela Guha, learned

advocate appearing for respondent No.2 along with advocates, Ms.

Sudipa Nath, Mr. Mrinmoy Debnath and Mr. Manoj Kumar Biswas.

[3] The factual background of the case is as under:

Sri Sanjay Sutradhar of Bankimnagar, Jirania lodged a

written FIR with the Officer in-charge of Ambassa Police Station on

30.12.2011 alleging, inter allia, that on 27.12.2011 he along with

Tutan Sen came to Teliamura for purchasing Bitumen for road

repairing works. Krishna Gopal Das (petitioner herein) who was

involved in the execution of the said work had given him

Rs.2,50,000/- in cash for this purpose. On the way one Ajit Das and

Suman alias Bikash Debnath joined them. Having arrived at

Ambassa they had taken lunch in Tripureswari Hotel. Thereafter

Tutan Sen asked the informant to give him Rs.50,000/- and keep

the remaining amount of Rs.2,00,000/- with him. They arrived at

the railway station in the evening. Following a pre-plan two

unknown miscreants caught hold of the informant and robbed him

of Rs.2,00,000/- from his bag. His associates Tutan Sen, Ajit Das

and Suman alias Bikash Debnath asked him not to divulge the

incidence to anyone. Having suspected the involvement of Tutan

Sen, Ajit Das and Suman alias Bikash Debnath in the alleged

offence, the informant lodged FIR against them and two others.

[4] Based on such FIR, Ambassa Police Station Case No.56

of 2011 under Sections 395 IPC and 27 Arms Act was registered

and investigation of the case was taken up by police.

[5] In the course of investigation of the case, the

Investigating Officer seized cash Indian currency of Rs.1,02,000/-

from accused Manuj Goon and Rs.32,000/- in cash was seized from

accused Sentu Das and a sum of Rs.3,000/- in cash was seized from

one Shibu Sarkar. Having completed the investigation of the case,

the Investigating Officer submitted the charge sheet against accused

Sentu Das alias Bikash, Manuj Goon, Shibu Sarkar and Biswajit Deb

for having committed offence punishable under Sections 394 and

411 IPC read with Section 27 of the Arms Act.

[6] The learned Sub-Divisional Judicial Magistrate, Kamalpur

received the charge sheet and took cognizance of offence punishable

under Sections 394 and 411 IPC and 27 of the Arms Act on the face

of the allegations. Trial commenced against accused Sentu Das,

Manuj Goon, Shibu Sarkar and Biswajit Deb with the framing of

charges under Sections 394 and 411 IPC. No charge was framed

under Section 27 of the Arms Act.

[7] In the course of trial, as many as 17(seventeen)

witnesses (P.W-1 to P.W-17) were examined on behalf of the

prosecution. Apart from adducing the oral evidence of the PWs

prosecution also relied on 9(nine) documents which were admitted

into evidence and marked as Exbt.1 to Exbt.9/1. On the basis of

their evidence all accused were examined under Section 313 Cr. P.C

separately. All of them claimed that they were innocent and the

charges were foisted on them. They declined to adduce any evidence

on their defence.

[8] At the conclusion of trial against accused Sentu Das,

Shibu Sarkar and Biswajit Deb, the learned Sub-Divisional Judicial

Magistrate, Kamalpur delivered judgment on 27.07.2015 whereby

all the 3(three) accused namely, Sentu Das, Shibu Sarkar and

Biswajit Deb were found not guilty and in the result they were

acquitted of the charges. Since accused Manuj Goon (respondent

No.2 herein) was found absconding, the trial of the case against

him was kept in abeyance.

[9] After accused Manuj Goon was brought to the Court,

the case was tried against him and the learned Chief Judicial

Magistrate, Dhalai Judicial District, Ambassa (after the

establishment of new judicial district) by his judgment and order

dated 20.03.2019 passed in PRC(WP) 35 of 2018 found him not

guilty and acquitted him of both the charges. With regard to the

disposal of the cash seized from the accused persons, the learned

Chief Judicial Magistrate directed that the seized currency of

Rs.1,37,000/- be handed over to its original owner namely, Krishna

Gopal Das (PW-12) who is the petitioner herein.

[10] Aggrieved by the order of disposal of the said currency

in favour of Krishna Gopal Das, said accused Manuj Goon though he

was acquitted of the charges, filed an appeal against the judgment

and order dated 20.03.2019 passed by the learned Chief Judicial

Magistrate challenging the order of disposal of the cash currency.

[11] Learned Sessions Judge heard the appeal and in his

judgment and order dated 18.01.2019 in Criminal Appeal No.3 of

2019, viewed that since there was no proof of seizure of the said

amount of money from the possession of Manuj Goon he was not

entitled to get back the said amount of money. The learned

Sessions Judge did not also agree with the view of the trial Judge

for releasing the seized cash currency in favour of Krishna Gopal

Das (petitioner). Consequently, the learned Sessions Judge by the

impugned order confiscated the money to the State. Accordingly,

the learned Sessions Judge dismissed his appeal viewing as under:

"****8. From the deposition of PW-8 (Gauranga Das) it appears that he has been dealing in grocery business in Ambassa and Cr. Appeal No.3 of 2019 Rs.32,000/- seized from his house does not belong to the accused Sentu Das, his son, but the money belongs to him only. From the evidence on record, nothing is clear about the source of money in case of accused Manuj Goon, though Rs.87,000/- + Rs.15,000/- = Rs.1.02,000/- was clear that it was seized from Manuj Goon being produced by him as stated by the Investigating Officer (PW-14) of the case. It is on record that the accused has been acquitted by the order probably for no proof of seizure from the possession of the accused, but the principle has to be applied in case of delivery of the amount also. Hence, the appeal is dismissed.

9. However, the order of handing over of the amount of Rs.1,37,000/- to the Contractor Sri Krishna Gopal Das as in Para-8 of the Judgment passed by the Ld. Chief Judicial Magistrate, Dhalai is set aside. The amount be realized or taken back from Krishna Gopal Das by the Ld. Chief Judicial Magistrate, Dhalai and that amount is confiscated and be deposited to the Government Account forthwith.

10. In the result, the present appeal filed by the appellant is dismissed and its order in Para-8 of said Judgment is set aside.*****"

[12] Challenging the said order of the learned Sessions

Judge, Krishna Gopal Das who allegedly delivered the money to

Sanjoy Sutradhar, the first informant for purchasing Bitumen from

Teliamura market for road repairing works at Ambassa has filed this

criminal revision petition. He has impleaded the State of Tripura as

respondent No.1 and Manuj Goon as respondent No.2 in this case.

The main grounds of his challenge are as under:

(i) Even though the FIR lodged by Sanjay Sutradhar revealed that petitioner Krishna Gopal Das gave the money to the first informant for purchasing Bitumen, the learned Sessions Judge while hearing the appeal of accused Manuj Goon did not issue notice to him and passed an erroneous order confiscating his money to the State Government.

(ii) The evidence revealed that the money belonged to him which was looted from the possession of his staff from their way to Teliamura. Despite proof of this fact, the learned Sessions Judge incorrectly confiscated the money to the State Government instead of releasing the same in his favour.

(iii) The learned Sessions Judge decided the appeal without appreciation of evidence and the essential facts and circumstances of the case.

[13] Counsel appearing for the petitioner has argued that

the impugned judgment of the learned Sessions Judge is liable to

be set aside since the decision is not based on evidence. Counsel

submits that Krishna Gopal Das is the true owner of the stolen

money which was proved during the trial of the case and, therefore,

the whole amount of money seized during the investigation of the

case should be returned to Krishna Gopal Das.

[14] Ms. Rumela Guha, learned counsel appearing for

respondent No.2, Manuj Goon vehemently opposes the contention

of the counsel of the petitioner. It is argued by Ms. Guha that the

Investigating Officer (PW-14) who conducted the whole

investigation of the case categorically stated in the charge sheet

that Rs.1,02,000/- was recovered and seized from the possession of

Manuj Goon (respondent No.2). In one spell Rs.87,000/- was

recovered and seized from him and in the second spell Rs.15,000/-

was recovered from his possession. Counsel submits that the

Investigating Officer very categorically repeated this fact in his

evidence during the trial of the case. The learned Sessions Judge

also referred to such statement of the Investigating Officer with

regard to seizure of the said amount of cash currency from the

possession of respondent Manuj Goon in the impugned judgment

delivered by him. Counsel contends that since neither the charge

under Section 394 nor the charge under Section 411 IPC has been

proved against Manuj Goon, he is entitled to the recovery of the

whole amount of money which was erroneously seized from his

possession.

[15] The matter with regard to disposal of property pending

the trial of a case and at the conclusion of trial is dealt with under

Chapter XXXIV, Cr.P.C from Sections 451 to Section 459. Section

452 Cr. P.C provides for disposal of property at the conclusion of

trial which reads as under:

           "452. Order for disposal          of   property   at
           conclusion of trial.

           (1)    When an inquiry or trial in any Criminal

Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

(2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub- section (1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."

[16] In the instant case, even though petitioner Krishna

Gopal Das is claiming to be the owner of the seized property

(money), there is absolutely no evidence in support of his claim.

The trial Court did not believe the prosecution case for which all the

accused were found not guilty and acquitted of the charges. On the

other hand, the Investigating Officer in the charge sheet submitted

by him as well as in his evidence has categorically stated that

during the investigation of the case he recovered and seized

Rs.87,000/- in one spell and Rs.15,000/- in another spell from the

possession of accused Manuj Goon. As stated, neither the charge of

robbing or of dishonestly receiving and retaining stolen property

could be established against said Manuj Goon. In these