Allahabad High Court
Satish Kumar Jaiswal vs State Of U.P. And Another on 4 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:59669 Judgment Reserved on 28.03.2024 Judgment Delivered on 04.04.2024 Court No. - 77 Case :- CRIMINAL REVISION No. - 6608 of 2023 Revisionist :- Satish Kumar Jaiswal Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Himanshu Goswami,Pawan Giri,Vikas Sharma Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Pawan Giri, the learned counsel for revisionist and the learned A.G.A. representing opposite parties 1 and 2.
2. Perused the record.
3. Present criminal revision has been filed challenging the order dated 14.12.2023, passed by Additional Chief Judicial Magistrate V, Juanpur, in Case Crime No. 124 of 2023 (State Vs. Satish and others), under Sections 419, 420, 467, 468, 471, 472, 120B IPC, P.S. Rampur, District Jaunpur, wherby the release application as well as supplementary release application filed by revisionist before court below in terms of Section 457 Cr.P.C. seeking release of the seized industrial unit of revisionist have been rejected.
4. This criminal revision came up for admission on 9.1.2024 and Court passed the following order :-
"Sri Vikas Sharma, learned counsel for the revisionist and Sri L.D. Rajbhar, learned AGA for the State, are present.
Supplementary affidavit filed on behalf of the revisionist today, is taken on record.
Learned AGA is directed to seek detailed instructions, taking into account the averments as contained in the original petition as well as in the supplementary affidavit and file a counter affidavit.
List for hearing on 12.02.2024 in the additional cause list."
5. Pursuant to above order dated 9.1.2024, a counter affidavit was filed on behalf of State opposite party 1 to which a rejoinder affidavit has also been filed by revisionist.
6. Subsequently, present criminal revision was taken up for admission on 7.3.2024 and this Court passed the following order:-
"Heard Mr. Pawan Giri, the learned counsel for revisionist and the learned A.G.A. for State.
Perused the record.
This criminal revision has been filed challenging the order dated 14.12.2023, passed by Additional Chief Judicial Magistrate-Vth, Jaunpur in Case No. 972 of 2023 (State Vs. Satish Jaiswal and others) arising out of Case Crime No. 1241 of 2023, under Sections 419, 420, 467, 465, 468, 471, 472, 120B IPC, Police Station- Rampur, District Jaunpur, whereby the release application filed by revisionist, seeking release of the seized factory of the revisionist under section 457 Cr.p.C. has been rejected.
Present criminal revision came up for admission on 9.1.2024 and this Court passed the following order:
"Sri Vikas Sharma, learned counsel for the revisionist and Sri L.D. Rajbhar, learned AGA for the State, are present.
Supplementary affidavit filed on behalf of the revisionist today, is taken on record.
Learned AGA is directed to seek detailed instructions, taking into account the averments as contained in the original petition as well as in the supplementary affidavit and file a counter affidavit.
List for hearing on 12.02.2024 in the additional cause list. "
Thereafter this Criminal Revision was taken up on 28.2.2024 and Court passed the following order:
1. Heard Mr. Pawan Giri, the learned counsel for revisionist and the learned A.G.A. for State.
2. The hearing stands concluded.
3. Judgment reserved.
4. The Court is informed that auction of the disputed property has been proposed on 01.03.2024.
5. In view of above, as an interim measure, it is provided that till the delivery of judgment, no coercive action shall be taken pursuant to the impugned order dated 04.12.2023.
However before proceeding to dictate the order in the present criminal revision, the order sheet was examined and it transpires that no notice was issued to opposite party-2, who appears in private capacity.
In view of above and also the law laid down by Apex Court that a criminal revision should not be decided without hearing opposite party, the delivery of judgement is hereby deferred.
Issue notice to opposite party-2 returnable on 22.3.2024.
Matter shall accordingly re-appear as fresh on 22.3.2024.
Interim order granted on 28.2.2024 shall continue till then."
7. In compliance of above order dated 9.1.2024, opposite party 2 has also filed his counter affidavit to which the revisionist has filed his rejoinder affidavit. As such, the pleadings between the parties stands complete.
8. Record shows that in respect of an incident, which is alleged to have occurred on 30.6.2023, a prompt F.I.R. dated 30.6.2023 was lodged by first informant Inspector Atul Kumar Singh and was registered as Case Crime No. 124 of 2023 (State Vs. Satish and others), under Sections 419, 420, 467, 468, 471, 472, 120B IPC, P.S. Rampur, District Jaunpur. In the aforesaid F.I.R. 7 persons namely Satish Kumar Jaiswal (revisionist herein), Neeraj Jaiswal, Badri Prasad Dubey alias Afsar Dubey, Satyendra Pathak alias Vinay Pathk, Shilendra Pathak alias Pintoo, Alam Ansari and Jagdish Pal have been nominated as named named accused.
9. Revisionist, who is the Managing Director of the company namely V.P.C. High Tech Private Limited having it's plant at Industrial Area Sidhwan, Rampur, District Jaunpur was arrested on 30.6.2023 itself and the unit of the company namely V.P.C. High Tech Private Limited was also seized
10. Feeling aggrieved by the seizure of the Industrial Unit as detailed above, revisionist filed a release application dated 4.7.2023 in terms of Section 457 Cr. P. C. The same is on record as Annexure SA-1 to the supplementary affidavit dated 8.1.2024 filed by the revisionist. The said release application came to be rejected by the Additional Chief Judicial Magistrate Ist, Court XII, Jaunpur, by a detailed order dated 14.7.2023.
11. Subsequently, revisionist was enlarged on bail by this Court, vide oder dated 2.8.2023 passed in Criminal Misc. Bail Application No. 31683 of 2023 (Satish Jaiswal Vs. State of U.P.). The said order is on record at page 116 of the paper book.
12. After having been enlarged on bail, the revisionist again filed a fresh release application dated 22.8.2023 in terms of Section 457 Cr. P. C. The same is on record at page 87 of the paper book. A supplementary release application dated 9.11.2023 was also filed with the same prayer i.e. release of the factory belonging to the revisionist.
13. After filing of aforementioned release application, the concerned Police Station submitted it's report.
14. Court below upon evaluation of the release application in the light of above and the material on record came to the conclusion that no good ground is made out to allow the release application. Accordingly, Court below rejected the release application dated 22.08.2023 as well as the supplementary release application dated 9.1.2023 respectively filed by the revisionist vide order dated 14.12.2023.
15. From the perusal of order dated 14.12.2023 passed by court below it is apparent that Court below rejected the release application filed by revisionist as noted above on the grounds that; charge sheet has been submitted but partial investigation is still going on, earlier release application dated 4.7.2023 was rejected by a detailed order dated 14.7.2023, as per the material on record i.e. the authority letter of premium cement, Ultra Super Tech cement and Birla Champion, the industrial unit only had the right of packaging, as per C.D. Parcha No. 13, no certificate has been obtained from the Fire Fighting Department, as per C.D. Parcha No. 14, no I.S.I. mark licence from Bureau of Indian Standards has been issued in favour of factory/company and lastly the F.S.L. report with regard to the product i.e. cement has not been received as yet.
16. Thus feeling aggrieved by the order dated 14.12.2023 passed by court below revisionist has now approached this Court by means of present criminal revision.
17. At the very outset, the Mr. Pawan Giri, the learned counsel for revisionist submits that the printing press of one Badri Prashad Dubey @ Afsar were the cement bags of the industrial unit owned by the revisionist were printed was also seized. Aforementioned Badri Prashad Dubey @ Afsar filed a release application before court below which was rejected. Accordingly, he filed Criminal Revision No. 240 of 2024 (Badri Prasad Dubey Urf Afasar) before this court. Aforesaid criminal revision came to be allowed by this court vide order dated 29.01.2024. For ready reference, the same is reproduced hereinunder:-
"1. Heard Shri Ashok Kumar Upadhyay, learned counsel for the revisionist and Shri Kunwar Ritesh Kumar, learned A.G.A. for the State.
2. The instant revision has been filed by the revisionist being aggrieved by the order dated 6.1.2024 passed by the Addl. Chief Judicial Magistrate, V Jaunpur in Case No. 972 of 2023 (State Vs. Satish Jaiswal and others) arising out of Case Crime No. 124 of 2023 under sections 419, 420, 465, 467, 468, 471, 472 and 120-B I.P.C. police station Rampur District Jaunpur whereby the application for release of the seized Printing Press of the revisionist herein has been rejected.
3. Learned counsel for the revisionist submits that he is the owner of the Printing Press in the name and style of "Piyush Polytex Company Press" situated at village Sidhvan police station Rampur District Jaunpur which has been seized for an allegation that the revisionist herein used to print the cement bags by different names of different brands on the orders given by the co-accused Satish Jaiswal and Neeraj Jaiswal, who used to utilize such bags of cement to fill up the duplicate cement produced in their factory and used to utilize such bags for different brand names. During investigation the Printing Press of the petitioner has been seized and due to such seizure of the Printing Press the revisionist herein is suffering loss on day to day basis. Learned counsel for the revisionist further submits that he has submitted an application under section 457 Cr.P.C. for the release of Printing Press being the owner of the Printing Press. As per Section 457 Cr.P.C. the Magistrate is obliged to deliver such property to the person entitled to the possession thereof.
4. Since in the instant case there is no dispute that the revisionist is the undisputed owner of the Printing Press, therefore, the revisionist has prayed for release of his Printing Press in his favour herein subject to adequate security bond to be furnished by the revisionist herein. The aim and object of Section 457 Cr.P.C. is to protect the seized property from damage. The revisionist in the instant case has already been granted bail in the said criminal proceedings.
5. Learned A.G.A. for the State does not dispute the fact that the revisionist is the owner of the Printing Press seized in the criminal proceedings. However, learned A.G.A. do not have any objection for release of the Printing Press in favour of the revisionist herein subject to the revisionist furnishing adequate security bond of the appropriate amount.
6. Having heard the submissions made by the learned counsel for the revisionist as well as the learned A.G.A. for the State, this Court is of the considered opinion that no useful purpose would be served by keeping the Printing Press of the revisionist in seized condition which will damage the machines installed therein and whereby the petitioner shall suffer loss day by day and since un-disputedly the revisionist is the owner of the said Printing Press and the only allegation against the revisionist is with regard to printing of the bags as per the orders given by co-accused persons, namely, Satish Jaiswal and Neeraj Jaiswal who in turn utilized such bags for filling duplicate cement of different brands. There is no allegation against the revisionist herein of his involvement in producing the duplicate cement etc. except the printing of the bags. In the instant case only the sample of duplicate cement have been sent for Foreignsic Science Laboratory for examination. If the Investigating Officer wish to seize the already printed cement bags, which are lying in the Printing Press of the revisionist, that can certainly be seized in accordance with law but so far as the seizure of the Printing Press of the revisionist is concerned, in the considered opinion of the Court that will not serve any purpose.
7. Therefore, it is directed that the Printing Press of the revisionist herein seized in connection with Case Crime No. 124 of 2023 under sections 419, 420, 465, 467, 468, 471, 472 and 120-B I.P.C. police station Rampur District Jaunpur shall be released forthwith subject to furnishing of a personal bond of Rs.6,00,000/- by the revisionist before the concerned Magistrate.
8. It is made clear that the already printed cement bags may be seized by the Investigating Officer in accordance with law.
9. With the aforesaid directions the instant revision petition is disposed of.
Order Date :- 29.1.2024"
18. On the above premise, the learned counsel for revisionist contends that the industrial unit of the revisionist is also liable to be ....
19. Learned counsel for revisionist next submits that the order impugned in present criminal revision is not only illegal but also arbitrary. None of the reasons assigned by court below for rejecting the release application filed by revisionist as noted above, can be said to be sufficient enough to deny the release of the seized industrial unit of the revisionist.
20. It is then submitted that parameters for deciding the release application in terms of Section 457 Cr.P.C. now stands crystallized by the judgment of the Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 SCC 283. The Apex court in aforesaid judgment has clearly defined as to why the goods seized in criminal proceedings should be released. The court has taken into consideration the provisions of different enactments and with reference to the same has ultimately concluded that until and unless the seizure is almost necessary, the seized goods should be released. It would be apt to refer to paragraphs 6, 7, 10, 14, 15, 16 and 17 of the said judgments as they are relevant for the issue involved in present criminal revision. Accordingly, the same are reproduced hereinunder:-
"6. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation.
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under-
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.
10. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.
14. In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.
15. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.
16. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.
17. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same."
21. In the light of the observations made by the Supreme Court as noted hereinabove, the learned counsel for revisionist submits that the order impugned passed by court below rejecting the release application filed by revisionist cannot be sustained in law and fact. Court below has neither referred to the aforementioned judgment in its order nor has it returned a finding as to why the seizure of the industrial unit belonging to the revisionist is necessary during the pendency of the criminal case.
22. Learned counsel for revisionist also submits that the industrial unit of the revisionist is not moveable property which can perish or can be destroyed by the revisionist. Even if, the property is released the same shall continue to exist and therefore by no stretch of imagination, it can even be inferred that if the industrial unit of the revisionist is released the same shall cause prejudice to the prosecution or shall affect the disposal of the criminal case.
23. On the above premise, it is thus urged by the learned counsel for revisionist that order impugned cannot be sustained and is therefore, liable to be set aside by this Court and the release application filed by the revisionist be allowed.
24. Per contra, the learned A.G.A. representing opposite parties has vehemently opposed the present criminal revision. He submits that order impugned in present criminal revision is perfectly just and legal. No illegality can be said to have been committed by court below in rejecting the release application filed by revisionist. From perusal of the impugned order, it is very much discernible that court below has not only assigned specific but also cogent reasons for negating the claim of the revisionist to release the seized industrial unit.
25. According to the learned A.G.A. the revisionist is a charge-sheeted accused. Revisionist is guilty of manufacturing sub-standared cement. The criminal prosecution of the revisionist has come into existence on the basis of an F.I.R. lodged by the police itself.
26. It is lastly submitted by the learned A.G.A. that no good ground has been made out for releasing the seized industrial unit belonging to the revisionist. Court below has neither committed a jurisdictional error in rejecting the release application filed by revisionist nor has the court below exercised it's jurisdiction with material irregularity so as to warrant interference by this Court.
27. Having heard the learned counel for revisionist, the learned A.G.A. for State and upon perusal of record this court finds that the only issue involved in the present criminal revision is :- Whether the order impugned passed by court below can be sustained in law and fact in view of the judgement of the Supreme Court in Sunderbhai Ambalal Desai (Supra).
28. The Apex Court in aforementioned judgement has made a sweeping observation that seized good either under the Code of Criminal Procedure or other enactment should ordinarily be released. The court has also laid down the detailed guidelines in this regard.
29. When the order impugned is examined in the light of above, this Court finds that the reasons assigned by court below for negating the claim of revisionist to release the seized industrial units relate to the merit of the case but the same are not in consonance with the requirement laid down in aforementioned judgement. There is absolutely no finding in the impugned order as to why the seizure of the seized industrial unit should be allowed to continue or in case the industrial unit is released in favour of revisionist, the same shall cause prejudiced to the prosecution or affect the proceedings of the trial.
30. Admittedly, the industrial unit of the revisionist is immovable property and therefore in case the same is released then even in that eventuality it cannot be said that the property may be stolen or it may wither away.
31. In view of the discussion made above and also the fact that the printing press belonging to Badri Prasad Dubey Urf Afasar where the cement bags for the disputed industrial unit were printed has already been released and there being no apparent reason to deny the release of the disputed industrial unit, the order impugned passed by court below cannot be sustained and is therefore liable to be set aside.
32. As a result, present criminal revision succeeds and is liable to be allowed.
33. It is accordingly allowed.
34. The impugned order dated 14.12.2023, passed by Additional Chief Judicial Magistrate V, Juanpur, in Case Crime No. 124 of 2023 (State Vs. Satish and others), under Sections 419, 420, 467, 468, 471, 472, 120B IPC, P.S. Rampur, District Jaunpur is set aside. The release application filed by revisionist shall stand allowed.
35. The seized property belonging to the revisionist shall be released in favour of revisionist subject to his furnishing a personal bond of Rs. 6 Lakhs before court below.
36. However, in the facts and circumstances of the case, there shall be no order as to costs.
Order Date :- 04.04.2024 Vinay