Punjab-Haryana High Court
Delhi Bitumen Sales Agency And Anr. vs State Of Punjab And Ors. on 20 January, 1988
Equivalent citations: 1989CRILJ722
ORDER D.V. Sehgal, J.
1. Petitioner No. 1 M/s. Delhi Bitumen Sales Agency registered is a firm carrying on business of purchase and sale of bitumen. It has its office at Delhi and various branches all over India including one branch at show-room No. 13-A, Sector 7-C Chandigarh. Shri S. C. Jain, petitioner No. 2, is one of its partners. It is alleged that respondent No. 3 is one of the landlords of show-room No. 13-A mentioned above and petitioner No. 1 is a tenant under him. Respondent No. 3 made an attempt to evict the petitioners from these premises by taking proceedings for their eviction in the Courts but could not succeed. Therefore, he in collusion with Govind Parkash respondent No. 4 who is working as a Sectional Officer in Punjab P.W.D. (B&R) at Rajpura lodged a false report Annexure P/1 with the Station House Officer, Rajpura respondent No. 2 that 35 drums of bitumen belonging to the P.W.D. lying on the road side had been stolen on the night between 26th and 27th Nov. 1977. On the basis of this First Information Report, respondent No. 2 accompanied by some other police officers besides respondents Nos. 3 and 4 raided the aforesaid premises of the petitioner on the 3rd of : Dec, 1977 at sun set and disregarding the provisions of search and seizure as contained in the Criminal Procedure Code, 1973 (for short the Code) took away the entire stock of bitumen with the petitioner which comprised of 387 drums and a new Atlas cycle saying that this entire property was being taken to Rajpura Police Station. According to the recovery memo Annexure P/2 issued by Gurbachan Singh, Assistant Sub-Inspector, Police Station, Rajpura 39 drums full of bitumen were said to have been recovered as case property in connection with First Information Report Annexure P/1 and 260 drums full of bitumen along with an Atlas cycle (new) had been taken possession of under Section 102 of the Code. The petitioners state that the remaining drums full of bitumen out of 387 had wrongfully not been accounted for and were forcibly removed from its premises. After these goods were removed from the premises of the petitioners its partners were threatened with arrest and other dire consequences if they did not vacate the aforesaid premises. Apprehending their arrest they applied for anticipatory bail under Section 438 of the Code which was granted to them by the learned Sessions Judge, Chandigarh on 4-9-1981. They also filed Civil Writ Petition No. 3932 of 1977 in this Court on 9-12-1977 for a direction to respondents Nos. 1 and 2 to proceed according to law and to refrain from pressurising the petitioners from vacating the premises as tenants under respondent No. 3. They also sought issuance of a writ of certiorari holding that the search of their premises on 3-12-1977 was illegal and void besides a direction to the respondents to hand over the goods illegally carried away from the aforesaid premises of the petitioners. This writ petition was later treated as a petition under Section 482 of the Code and was eventually dismissed by K. S. Tiwana, J. (as he then was) vide order dated 6-5-1980 Annexure P/4 requiring the petitioners to avail of the remedy available to them under the ordinary law.
2. It is further averred by the petitioners that they filed about a dozen applications from time to time in the Court of the Judicial Magistrate, Rajpura for, the return of the seized goods. Each such application was sent to respondent No. 2 for report. It was only on the last three or four applications that vague reports were made by him and the property was not produced. They contend that no further proceedings on the First Information Report Annexure P/1 have been taken since the Year 1977. They point out that the period of limitation prescribed for taking cognizance of an offence under Sections 379/411 Indian Penal Code was three years as prescribed by Clause (c) of Section 468(2) of the Code. Hence 'no prosecution can now be launched on the basis of the First Information Report Annexure P/1. They further submit that Annexure P/l is a report regarding a theft of 35 drums of bitumen. So there was no justification whatsoever for respondent No. 2 either to have been taken into custody or keep with him the remaining drums full of bitumen which belong to the petitioners. It is further stated that even with regard to 35 drums of bitumen it was a false case cooked up against the petitioners at the instance of respondent No. 3 and that is why the prosecution dragged its feet at a later stage and did not launch the prosecution. They, therefore, seek issuance of a writ of certiorari through the present writ petition for quashing the First Information Report Annexure P/1 as prosecution on its basis is barred by limitation under the provisions of Sections 468 and 469 of the Code and a direction to respondents Nos. 1 and 2 to return to the petitioners 299 drums full of bitumen as mentioned in the recovery memo Annexure P/2 and the new Atlas cycle removed from the possession of the petitioners from the aforesaid premises.
3. Two separate written statements have been filed by respondents Nos. 2 and 3. Respondent No. 2 has filed the written statement on behalf of himself and respondent No. 1. In his written statement respondent No. 2 has, inter alia, admitted that 299 drums of bitumen and one new Atlas cycle were taken into possession from the premises of the petitioners but states that out of them 260 drums full of bitumen and the cycle were taken into possession under Section 102 of the Code. Out of the remaining 39 drums, 35 drums pertained to the First Information Report Annexure P/1 and 4 drums were stated to have been stolen from Government store at Ghanru. However, no document whatsoever has been produced with regard to the alleged theft of four drums of bitumen last mentioned. It is further stated that the delay in the investigation was caused firstly because it remained stayed from 20th Jan. 1978 to 6th May, 1980 under the orders of this Court and that later the petitioners did not co-operate with the investigating agency, they failed to produce their partnership deed. It is then averred that the case is pending investigation and no final report has been prepared as yet. It is claimed that since there is sufficient evidence on the record to connect the accused with the case the Government would be moved to put up the challan against them even after expiry of the period of limitation. It has not been disputed that even accounting for the period when the investigation remained stayed under the orders of this Court in accordance with the provisions of Sub-section (2) of Section 470 of the Code, the period of limitation prescribed by Section 468 ibid, has since expired.
4. Respondent No. 3 in his written statement has disowned any connection with the search and seizure of the goods of the petitioners from the above premises. He admits that he filed proceedings for ejectment of the petitioners from the premises in dispute but denies any conspiracy between him and respondents Nos. 2 and 4 to raid the premises of the petitioners and to seize the goods. He claims that he has been unnecessarily involved in this dispute.
5. I have heard the learned Counsel for the parties. It is not at all necessary for me to decide the disputed question of fact as to whether or not out of the drums full of bitumen seized and taken away by respondent No. 2 from the premises of the petitioners, 35 drums were stolen property connected with the First Information Report Annexure P/1 but I must observe here that no material whatsoever has been brought on the record to justify the seizure of the remaining 264 drums full of bitumen from the premises of the petitioners. Section 102 of the Code no dount empowers respondent No. 2 to seize any property which may be alleged or suspected to have been stolen or which may be found under the circumstances which create a suspicion of the commission of any offence. However, it is not disputed that the petitioners is a firm dealing in purchase and sale of bitumen. Its headquarter is at Delhi and has branches in different parts of the country. In the premises above mentioned at Chandigarh one of its branches was located. Even after lapse of more than ten years no material has been placed before me which might have justified the seizure of 260 drums under Section 102 of the Code. I have, therefore, no hesitation to hold that the seizure of these 260 drums was wholly illegal and in fact an abuse of the power by respondent No. 2. Likewise in respect of four drums full of bitumen all that has been stated in the written statement is that these were seized in connection with the theft in another case but again no record has been shown to me which might have justified the seizure of these four drums also.
6. Now coming to the First Information Report Annexure P/1 in connection with which 35 drums full of bitumen were seized by respondent No. 2, it has not been disputed by him that the prescribed period of limitation for the Court to take cognizance of the offence under Section 379/411 Indian Penal Code and under Clause (C) of Section 468(2) of the Code has since expired. What he, however, states is that Government shall be approached to grant permission to institute prosecution against the petitioners even after expiry of the period of limitation. Chapter XXXVI of the Code which adumbrates the provisions for period of limitation regarding the taking of cognizance of an offence nowhere vests the Government with the power to allow institution of prosecution after expiry of the statutory period of limitation. In fact cognizance of the offence is to be taken by the Court. Any proposed permission of the Government to launch prosecution is irrelevant. The Court has to decide while taking cognizance of an offence whether the prosecution instituted is within limitation. Obviously no prosecution on the basis of First Information Report annexure P/1 can now be launched or can be taken cognizance of by the Court. It is not necessary to consider the defence taken by respondent No. 3.1 am not required to determine his complicity in the raid and seizure of the goods.
7. In view of the above discussion I hold that the offence constituted on the facts which find mention in the First Information Report Annexure P/1 cannot be taken cognizance of by a Court of law because of the statutory bar of limitation provided by Section 468(2)(c) of the Code. I, therefore, direct respondents Nos. 1 and 2 to release from seizure 299 drums full of bitumen and one Atlas Cycle (new) as mentioned in the recovery memo annexure P/2 and deliver back their possession to the petitioners at their premises, show-room No. 13-A, Sector 7-C, Chandigarh, within two months from today. The petitioners shall also be entitled to recover costs of this writ petition from respondents Nos. 1 and 2 and the same are assessed at Rs. 500/-.