Delhi District Court
State(Nct Of Delhi) vs M/S Treemark Solutions Pvt. Ltd on 15 March, 2021
IN THE COURT OF MS. CHARU AGGARWAL: ASJ-02: CENTRAL: TIS
HAZARI COURTS: DELHI
Criminal Revision No. 3/21
State(NCT of Delhi)
Through
Sub Divisional Magistrate,
Karol Bagh,
New Delhi. ..... Revisionist
Versus
M/s Treemark Solutions Pvt. Ltd.
Through Its AR/Directors
Office at 2A/3, 2nd Floor,
Stirring Minds,
Kundan Mansion,
Asaf Ali Road,
Turkman Gate,
New Delhi-1100002. ..... Respondent
ORDER
1. The present revision petition u/s 397/399 CrPC has been filed by the revisionist/State(concerned SDM) assailing the order dated 11.12.2019 passed by Ld. Chief Metropolitan Magistrate, Central, Tis Hazari Courts, Delhi whereby an application u/s 451 CrPC, moved by the respondent herein seeking de- sealing of property bearing No. 4/65, second floor and third floor, Padam Singh Road, Karol Bagh, New Delhi alongwith 230 laptops lying therein, was allowed.
2. The brief facts of the case are that an information was received from Dr. Sabha Naz, Nodal officer, Pre Conception and Pre Natal Diagnostic Technique(prohibition of Sex Detection) Act, 1994 (hereinafter referred to as "the Act") that some unregistered clinic in the name of "Ela Prime Fertility Center"
under the Act is running from property no. 4/65, second floor and third floor, Padam Singh Road, Karol Bagh, Delhi, in collaboration with call center which is giving counselling to the patients and determining the sex of the child in the Digitally signed by CHARU State Vs. M/s Treemark Solutions Pvt. Ltd. CHARU AGGARWAL Page No. 1 of 6 AGGARWAL Date: 2021.03.16 15:11:15 +0530 womb. On receipt of this information, District Magistrate authorized the concerned SDM, Karol Bagh to conduct the raid on the aforesaid premises. Accordingly, on 30.09.2019, a team was constituted alongwith PNDT officers and raid was conducted. The property bearing No. 4/65, second floor and third floor, Padam Singh Road, Karol Bagh, New Delhi alongwith 230 laptops lying therein was seized and sealed. On the directions of the concerned SDM, FIR bearing No. 372/19 u/s 3, 3(a), 4, 6(c), 18 and 22 of PC and PNTD Act was registered at police station Karol Bagh. On 11.11.2019 detailed punchnama was prepared. Thereafter, respondent herein moved an application for de-sealing of the aforesaid property before concerned CMM and vide order dated 11.12.2020, Ld. CMM directed the IO and revisionist herein to de-seal the property and also to release 230 laptops within 15 days from the date of passing of the said order. Thereafter, clarification was sought from the Nodal Officer, PNDT regarding further investigation into the matter, in response to which Nodal Officer informed that the raid was under PC and PNDT Act at the premises from where a call center was being operative and facilitate for IVF procedure and also to determine sex of the pregnant ladies which is in violation of the said Act. It was further informed that constitution of Special Investigating Team (SIT) is under process by the department of Home, Govt. of NCT, Delhi to investigate the case.
3. The respondent herein was aggrieved by the seizure and sealing of the property as well as of laptops by the concerned SDM, therefore, it (respondent herein) filed an application u/s 451 CrPC before concerned CMM seeking de- sealing of the laptops & the property and on the said application impugned order dated 11.12.2020 was passed by Ld. CMM directing the revisionist herein to de- seal the property and the laptops within 15 days.
4. The revisionist is aggrieved by the impugned order for the reasons as stated in the revision petition that the laptop seized and sealed by the raiding team is a prime evidence of the present case in which the entire data of the Ela Prima Fertility Centre is contained and after retrieving the data from the laptops the true facts of the case will be unearth that how and from where Ela Prima Fertility Centre was actually operating, who were their patients and from which institute they were connected to determine the sex of the pregnant ladies. It is Digitally signed by CHARU CHARU AGGARWAL State Vs. M/s Treemark Solutions Pvt. Ltd. AGGARWAL Page No. 2 of 6 Date: 2021.03.16 15:11:30 +0530 stated in the revision that if laptops are released in favour of respondents herein the same will adversely and seriously impact the entire case of the prosecution since it is the most relevant and important piece of evidence of the prosecution to prove its case.
5. Per contra, Ld. Counsel for respondent has firstly raised the objection on the maintainability of the present revision petition submitting that the impugned order is inter locatory in nature against which as per Section 397(2) CrPC revision cannot lie. On the maintainability of the present revision petition, Ld. Counsel for respondent has argued that the impugned order has not decided any substantial rights of the parties, therefore, by no stretch of imagination this order can be termed as final order or inter-mediatory order thus, thereby the impugned order is inter-locatory and revision against this order is barred under section 397(2) CrPC.
On merits, Ld. Counsel for respondent contended that the property and laptops were sealed and seized by the prosecution/SDM on 30.09.2019, thereafter, almost 1 ½ years has passed and since then no steps have been taken by the prosecution to retrieve data from the laptops rather investigation has not even started from 1 ½ years and which is causing financial burden on the respondent since sealed property has been taken on lease by the respondent and since October, 2019 till now respondent is unnecessarily paying rent to the landlord only due to the fault on the part of SDM/prosecution which has not even initiated the investigation into the matter. Ld. Counsel has further argued that prosecution is using the sealed property only as their godown to store the case property/laptops of the present FIR.
6. On the maintainability of the present revision petition, counsel for revisionist has argued that the impugned order has decided the substantial rights of the parties since the case property is an important piece of evidence in this case and the case of the prosecution entirely depend upon the data which will be retrieved from the laptops seized in the raid, therefore, the impugned order is not inter-locatory in nature. Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2021.03.16 15:11:52 +0530 State Vs. M/s Treemark Solutions Pvt. Ltd. Page No. 3 of 6
7. I have considered the rival contentions made by Ld. Addl. PP, Ld. Counsel for revisionist and Ld. Counsel for respondent.
8. The first and foremost argument of the respondent to hit this revision petition is on its maintainability on the ground that the impugned order is inter locatory in nature which has not decided any substantial rights of the parties. This Court is not required to go into the issue of nature of the impugned order whether it is inter locatory or final since the order under challenge was passed on the application under Section 451 CrPC and Section 454 CrPC specifically lays down filing of appeal against any order passed under Section 451 of CrPC before the Court in which the appeal against the conviction is filed. As per Section 28 of the Act, the offence under this Act are tried by Metropolitan Magistrate and the appeals against the order of conviction passed by Ld. MM are filed before Ld. Principal District & Sessions Judge. In view of Section 28 of the Act, the appeal filed against the order passed u/s 451 CrPC shall be filed before this Court being the Court of Additional Session Judge. Now, the poser before the Court is whether the present revision can be converted into the appeal or not. This Court finds no impeadment into converting the present revision into the appeal since the grounds raised in the present revision as well as the contentions of both the parties in appeal and revision shall remain same. Moreover, the conversion of revision into appeal will also not affect the rights of further appeal of either of the parties. In view of this, the present revision is converted into the appeal filed under Section 454 CrPC.
9. The registration of FIR and conducting of raid on 30.09.2019 at premises No. 4/65, second floor and third floor, Padam Singh Road, Karol Bagh, New Delhi are not disputed. It is also not disputed that the said property alongwith 230 laptops and some other movable property were sealed and seized by the office of concerned SDM. The graveman of the respondent herein was sealing of the property and seizing of laptops by the office of concerned SDM on 30.09.2019 from last almost one year without even initiating any investigation into the matter, which was unnecessarily financially burdening the respondent since the said premises are on lease and respondent is unnecessarily paying rent of the same. The respondent has placed on record the lease agreement Digitally signed by CHARU CHARU AGGARWAL State Vs. M/s Treemark Solutions Pvt. Ltd. Page No. 4 of 6 AGGARWAL Date: 2021.03.16 15:12:05 +0530 dated 29.06.2018, entered between it and the landlord of the property, which is also not disputed by the prosecution. As per the said lease agreement, the rent of the property is approximately Rs.2,60,000/- (onwards) per month. Ld. Trial Court (Ld. CMM) considering that from last one year the revisionist/prosecution has not even initiated the investigation and has not retrieved the data, passed impugned order, directing the State to retrieve the data within 15 days and thereafter, to de-seal the property and hand over the laptops to the respondent herein. This Court agrees with the contention of the State that laptops are important piece of evidence in the present case and the data, which will be retrieved from the laptops is the most material and relevant piece of evidence to establish the nexus between the respondent and the accusation made against it in the FIR. However, this Court also finds force in the arguments of respondent that respondent cannot be made sufferer or unnecessarily burden with the financial liabilities due to the lapses on the part of the State that from almost last 1 ½ years they have not even initiated the investigation into the matter. The contention of the State that they are in the process and constitution of special investigation team into the matter is internal matter of the department for which respondent cannot be made sufferer. The impugned order was passed on 11.12.2020, thereafter, also the State has already availed time of almost three months and during arguments this Court was informed that no SIT is still formed into the matter which clearly shows inaction on the part of the State, be it SDM office or Home Department of Govt. of NCT of Delhi. Otherwise also, the property has been seized by the SDM by invoking powers u/s 29 of the Act. As per Sub section 1 of Section 29 of the Act, the SDM is empowered to seized and sealed any machine, record, register etc. Sub Section 2 of Section 29 states that the provisions of CrPC will be applicable in sealing and seizure provided u/s 29 (1) of the Act. In "Niveda Properties Pvt. Ltd. Vs. State of Maharashtra," 2019 (Crl. Application No. 1481-1487), the Hon'ble Apex Court has held that the prosecution / police officer cannot seal the immovable property. Even, none of the provision or rule of the Act, at least brought into the knowledge of this Court, empowers the appropriate authority to seal the immovable property. Moreover, it is not even the case of the prosecution that the property bearing No. 4/65, second floor and third floor, Padam Singh Road, Karol Bagh, New Delhi is their Digitally signed by CHARU State Vs. M/s Treemark Solutions Pvt. Ltd. CHARU AGGARWAL Page No. 5 of 6 AGGARWAL Date: 2021.03.16 15:12:27 +0530 case property but as per prosecution the case property are only the laptops and other movable properties. Ld. Counsel for respondent herein has rightly argued that property was taken on rent by the respondent, on the rent of approximately Rs.2,60,000/- (onwards) per month cannot be used as godown by the prosecution. Looking into the entire facts and circumstances of the case, the revisionist herein is directed to de-seal the property immediately maximum within a period of one week from today and shift the laptops and other movable properties seized by them, lying therein during this one week and it is further directed that the data of laptops be also preferably retrieved within four weeks from today. However, at this stage, this Court does not deem it appropriate to pass any direction to release the laptops to the resplendent herein. Once the prosecution completes the process of retrieving the data from the laptops, the prayer of respondent herein seeking release of laptops will be considered thereafter, by the concerned court.
10. In terms of aforesaid directions, the present appeal/revision is disposed off. Trial Court Record be sent back to the concerned court with copy of this order.
Copy of this order be also sent to the Home Department, Govt. of NCT of Delhi.
Revision file be consigned to record room.
(Announced in the open court Digitally signed
on 15th March, 2021) by CHARU
CHARU AGGARWAL
AGGARWAL Date:
2021.03.16
15:12:51 +0530
(CHARU AGGARWAL)
ASJ-02: CENTRAL:
THC : DELHI
State Vs. M/s Treemark Solutions Pvt. Ltd. Page No. 6 of 6