Chattisgarh High Court
Gopal Vishvas vs State Of Chhattisgarh on 10 February, 2005
Equivalent citations: 2005CRILJ3319
ORDER
Fakhruddin, A.C.J.
1. Heard.
2. This petition under Section 482 of Cr.P.C. has been filed by the applicant against the order dated 2-12-2004 passed by the learned First Addl. Sessions Judge, Sarguja, Ambikapur in Criminal Rev. No. 348/2004 whereby the revision filed against the order dated 4-11 -2004 passed by the Chief Judicial Magistrate, Ambikapur has been rejected.
3. Counsel for the applicant submitted that applicant is the person who is carrying on the business of Television Network. An-nexure A-2 is the registration certificate issued by the District Excise Officer. It is submitted that he is the authorized Cable Operator by Z TV to telecast its Channels. It is stated that he is doing the business lawfully. It is further submitted that there is another competitor namely Vande Matram, who does not want the applicant to carry on the business. It is submitted that at his behest, the police have acted and registered the offence under Section 16 of Cable Television Networks Regulation Act, 1995 and Sections 63 and 68A of the Copyright Act. On 1-11-2004, the Sub-Inspector searched the place from where the applicant was carrying business and seized the Decoder and 57 other articles, the cost of which is about Rs. 2 lacs. The offence was registered. Allegation against the applicant was that he was telecasting Star TV for which he was not authorized. It is submitted that the applicant preferred an application under Section 457 of Cr.P.C. for giving the articles on Supurdnama on 2-11-2004, which was rejected by the Chief Judicial Magistrate on 4-11-2004, Against the order dated 4-11-2004, the applicant preferred a revision but the learned Revisional Court also rejected the revision by order dated 2-12-2004.
4. Learned counsel for the applicant submitted that the applicant took objection before the Court below contending that the proceedings can be initiated only by the prescribed authority but the investigating officer is not the prescribed authority. It is submitted that till today challan has not been filed. It is submitted that before the learned Magistrate, objection by the State was raised that the applicant is not the owner of the property and it is in the name of one Prem Narayan Tiwari. Shri Paranjpe submitted that an affidavit was also filed before the learned Revisional Court to the effect that the applicant is owner of the property but the Revisional Court declined to consider the affidavit on the ground that it was not filed before: the trial Court. Counsel submitted that the property seized is delicate and it is lying in the police station and it may be damaged.
5. Opportunity was given to Shri Ravindra Agrawal, Panel Lawyer appearing for the State. He submitted that challan has not been filed. However he raised objection for handing over the articles No. 8, 9 and 15.
6. Counsel for the applicant placed reliance on the decision in the case of Sunderbhai Ambalal Desai v. State of Gujarat reported in 2002 AIR SCW 5301. In that case, it was held that powers under Section 451, Cr.P.C. should be exercised ex-peditiously and judicially. Paragraph 7 of the aforesaid judgment are relevant and quoted below :-
"7. In our view the powers under Section 451, Cr.P.C. should be exercised expedi-tiously and judiciously. It would serve various purposes, namely :-
(1) Owner of the article would not suffer because of its remained 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 panchnama 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 property 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. Counsel for applicant further placed reliance on the decision in the case of Rajendra Prasad v. State of Bihar reported in 2001 AIR SCW 2289 : (2001 Cri LJ 4946). In that case, the Hon'ble Apex Court directed to entrust the vehicle in question even to the person, who was the ostensible name holder in the registration certificate. Para 2 of the judgment is relevant and quoted below :-
"2. We do not want the vehicle to remain in the compound of the Police Station exposed to heat and cold because the automobile is likely to be lost to all in such situation. To avert this situation, we are inclined to entrust it temporarily to the appellant who is the ostensible name-holder in the registration certificate...."
8. Counsel for the applicant, in support of the contention that the learned Revisional Court should have considered the affidavit filed before it, placed reliance on the decision in the case of Deep Chand Gupta v. State of M.P. reported in 1999 (2) Vidhi Bhasvar 2111, in which it was held that the Revisional Court can take fresh document on record in the interest of Justice. He also placed reliance in the cases of Oswal Iron and Steel (Pvt.) Ltd. v. State of M.P., (1994 (2) MP Weekly Note S. N. 140). In this case it was held that vehicle not claimed by registered owner in interim custody, may be given to even stranger. He also relied on Rajesh Strips Ltd. v. H. L. Shabbarwal (1994 (2) MP Weekly Note, S. N. 240). It was a case where a tanker proceeded with furnace oil from Vishakhapattanam to Modi Cement at Raipur, while the furnace oil was being delivered to the Modi Cement at Raipur it was found that the same was mixed with water and seized the oil. It was held in that case that :-
"Admittedly, in this case no person other than the applicant has claimed to be the owner of the seized furnace oil. As the furnace oil was seized from the possession of the applicant the same should have been released to the applicant and not to the non-applicant No. 1, who is a mere transporter.
9. Counsel for the applicant further placed reliance on the decision Balkrishna Sharma v. State of M.P. and others reported in 1985 Cr LR (MP) 97. Para 7 of the decision is relevant and quoted below :-
"Besides the unlikelihood of locating the identification marks in order to connect the projector with the incriminating film, it is also worthy of consideration that, the electronic equipments like television sets, video cassette recorder and the accessories are delicate and costly implements needing proper upkeep and maintenance. By and large, there is little likelihood that anyone, besides the owner, would care for the maintenance and upkeep of the property seized in the instant case and it would be fastening uncalled for liability on the State for the custody of such items of property, when their retention does not appear to be unavoidable for the purpose of proof in the case. In this connection, attention of the learned Sessions Judge may also be drawn to the observation made by the Supreme Court in the case Smt. Basava Kom Dyamogonda Patil v. State of Mysore, , wherein it has been observed by the Supreme Court that when property which is custodia-legis, is stolen, lost or destroyed and there is no prime facie defence made out that the State or its officers had taken due care and caution to protect the prop erty, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. I am of the clear opinion that in the instant case, there is no need to retain in the custody of the Court any item of the seized property, with the exception of the incriminating blue film. It is, therefore, necessary to set aside the impugned order made by the learned Sessions Judge to secure the ends of justice."
10. Having considered the facts and circumstances, the impugned order is set aside. It is directed that the articles in question be handed over to the applicant on his furnishing a security in sum of Rs, 2,00,000/- (Rs. Two lacs) to the satisfaction of the Court concerned subject to the condition that during pendency, the property shall not be alienated without permission and it shall be produced as and when directed by the Court concerned.
11. Accordingly, the petition is allowed.
12. Certified copy as per rules.