Madhya Pradesh High Court
Murarilal Sharma vs The State Of Madhya Pradesh on 31 August, 2010
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.1401/2009
Murarilal Sharma, son of Late Kailash Narayan Sharma,
Aged about 45 years, Resident of Ambedkar Ward,
Gayatri Nagar,Tahsil & Distt. Katni ... Appellant
vs.
State of Madhya Pradesh, through SHO
Kotwali, Katni ... Respondent
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Shri S.K. Bakshi, Advocate for the appellant.
Shri Ajay Tamrakar, Panel Lawyer for the respondent/State.
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JUDGMENT
(31/8/2010) This is an appeal under Section 86 of the Criminal Procedure Code (for short 'the Code'). The appellant is aggrieved by the order- dated 17.07.2009 passed by Special Judge (under the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act'), Katni in MJC No.02/2008 rejecting application, under Section 85(3) of the Code for release of his house, bearing no.631 and located at Gayatri Nagar, Katni and all the movable properties stored therein from attachment and restoration thereof.
2. The appellant who, at the relevant point of time, was working as Constable in Excise Department at Katni, was shown as absconding in the charge-sheet submitted against co-accused Raju @ Girdharilal and Pappu @ Shivdatt on 28.6.2007 after due investigation into the case registered as Crime No.238/2007 at Kotwali Katni in respect of the offences punishable under Section 8 read with S.20 of the Act.
3. The prosecution version disclosed in the charge-sheet and the documents annexed may be summarized thus -
(i) In the night intervening 7th and 8th April, 2007, pursuant to credible information received at the police station that the 2 Criminal Appeal No.1401/2009 appellant along with co-accused namely Raju and Pappu was carrying ganja in a Marshal Jeep, bearing registration no. MP-
21-C-0464, a raid was arranged at Lamtra Gate at Katni and the vehicle was intercepted but it was not stopped by co- accused Raju, the driver thereof, instead, he drove the vehicle at a faster speed and in the process, dashed it against the check-post barrier installed on Katni Shahdol Road. Ultimately, the vehicle was abandoned at a short distance from the barrier and the appellant was able to escape whereas his companions were apprehended. From the Jeep, a total quantity of 94 Kgs. of Ganja was recovered.
(ii) At the instance of Raju, as many as 27 gunny bags containing 834.65 Kgs. of Ganja were recovered from co- accused Rajendra Shukla's house located in village Nanwara- Kala.
4. A bare perusal of the record would reveal that in the wake of appellant's continuous abscondance, the house and the movables found therein were attached on 13.06.2008 whereas he had surrendered to custody on 23.05.2009 only after dismissal of his Special Leave Petition, against this Court's order rejecting prayer for anticipatory bail application, by the Apex Court.
5. After his surrender, the appellant moved the application, under Section 85(3) of the Code, on 28.05.2009 for restoration of all the attached properties inter alia on the ground that the proceedings initiated for attachment and sale of his properties had already been rendered infructuous. Thereafter, on 18.06.2009, he filed a list of 10 witnesses, whom he proposed to summon to support his explanation for disobedience of proclamation but for the reasons assigned in the order passed on the same day, learned Special Judge permitted him to call only Vishwabandu Choudhary and Rakesh Mishra as witnesses. However, the appellant examined himself and Vishwabandu only. Thereafter, on 13.07.2009, he submitted yet 2 3 Criminal Appeal No.1401/2009 another application for setting aside the order of attachment and restoration of the attached properties.
6. The appeal has been preferred primarily on the following grounds -
(i) There was no justification for continuance of the attachment as the purpose thereof had already been fulfilled with his surrender to custody.
(ii) a reasonable opportunity was not granted to him to substantiate his explanation for abscondance.
7. In view of the provisions of Section 85(3) of the Code, the ground no.(i) is apparently misconceived as upon his surrender, the appellant was still required to prove that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had no such notice of the proclamation so as to enable him to attend within the time specified therein.
8. Coming to the ground no.(ii), it may be observed that a reasonably sufficient opportunity was not granted to the appellant to prove the aforesaid pre-conditions for release of the properties from attachment.
9. In the result, the appeal is allowed and the matter is remanded to the trial Court with a direction to pass a fresh order after affording reasonable opportunity to the appellant to lead evidence in support of his explanation. It is also expected that entire enquiry shall be conducted as far as possible within a period of two months from the date of receipt of certified copy of this judgment.
Appeal allowed.
(R.C. Mishra) JUDGE 31.8.2010 3