Patna High Court
Brajesh Kumar Srivastava vs The State Of Bihar on 3 May, 2016
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.54731 of 2015
Arising Out of PS.Case No. -206 Year- 2015 Thana -CHAKIA District- EAST CHAMPARAN
(MOTIHARI)
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1. Brajesh Kumar Srivastava, S/o Surendra Prasad Srivastava, resident of village-
Jamsari, P.S.- Uchkawa Gaon, District- Gopalganj, Branch Manager, Bettiah
Branch, UAE Exchange and Financial Services Limited.
.... .... Petitioner/s
Versus
1. The State of Bihar
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ansul, Adv.
Mr. Anuj Kumar, Adv.
Mr. Archit Rajpal, Adv.
Mr. Shreyanshu Kumar, Adv.
For the Opposite Party/s : Dr. Mayanand Jha, APP
===========================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 03-05-2016
This is an application invoking the inherent jurisdiction
of this Court under Section 482 of the Code of Criminal Procedure
(for short ‗CrPC') for quashing the order dated November 04, 2015
passed by the learned Chief Judicial Magistrate, Motihari in Chakia
P.S.Case No. 206 of 2015 by which the learned Chief Judicial
Magistrate has dismissed the application dated September 28, 2015,
wherein it was prayed that the office premises of UAE Exchange and
Financial Services Limited (for short ‗the Company'), Motihari, East
Champaran, which was sealed by the police in connection with the
aforesaid police case registered under Sections 420, 120-B, 467, 468,
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471, 406/34 of the Indian Penal Code (for short ‗IPC') and Sections 3,
4 and 13 of the Foreign Exchange Management Act, 1999 (for short
‗FEMA') on the report of one Roshan Kumar, be unsealed and the
Company be allowed to restore the business of the said Branch as it
was incurring heavy loss due to the said sealing.
2. The facts concerning the instant case in brief are that the
informant Raushan Kumar lodged a written information with Chakia
Police Station at about 7.00 p.m. on September 23, 2015 alleging
therein that in the year 2014 he had given his Voter ID Card and PAN
Card to one Yogesh Mishra, travel staff of the Company to prepare a
passport. He received his passport in one and a half months but the
Xerox of the Voter ID Card and PAN Card were not returned and the
same were kept by the aforesaid Yogesh Mishra. He went to Malaysia
on that passport and after remaining there for five days, came back.
On September 23, 2015, he came to know that on September 17, 2015
at about 11.00 a.m., by making his forged signature, Manjeet Kumar,
Ankit Pandey, Chandramohan Chaudhary and Vikas Kumar
Srivastava, all staff of the Company and Indradeo Sah, the Guard of
the Company have defalcated Rs. 65,840/-. Similarly, they have also
defalcated Rs.23,781/- by making signature of Indradeo Sah. The
informant further alleged that these people defalcated the foreign
currency. He also alleged that the employees of the Company also get
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the passports prepared and they also deal with foreign currency.
While preparing the passport, they return the original Voter ID Card
and PAN Card and retain the Xerox copy of those documents, which
are misused by the aforesaid employees of the Company by forging
signatures of bonafide holders of those identity cards. When he came
to know that foreign currency worth Rs.39 lakhs of the Company has
been seized by the police near Chakia Toll Plaza, then he informed
the police.
3. Consequent upon lodging of the First Information Report
(for short ‗FIR'), the police sealed the premises of the Company
office at Motihari, East Champaran. They also seized currency and
registers of the money transactions.
4. Thereafter, petitioner no.1 filed an application in the
court of Chief Judicial Magistrate, Motihari on September 28, 2015
for unsealing the office premises of the Company and allowing the
Company to restore the business of the said Branch as it was
incurring heavy loss due to the said sealing. The aforesaid application
of petitioner no.1 was rejected by the learned Chief Judicial
Magistrate, Motihari, vide order dated November 04, 2015, which
being relevant is reproduced below :-
―4/11/2015 - The applicant, an employee of U.A.E.
Exchange and Financial Services Ltd. has filed this
application dated 28/9/2015 by which he has urged that
the concerned authority had valid licence from R.B.I. in
this regard up till 31st August, 2014, later on before one
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month from the date of expiry of the licence according to
the provision of Reserve Bank of India had applied for its
renewal and according to the provision contained by
R.B.I. his licence for this purpose is in existence unless
cancelled. According to the applicant his transaction is fair
and in accordance with the law and the police has sealed
the said exchange centre restraining from its business and
it is incurring very loss to the authority and its customers
so kindly the said office be de-sealed so that business
transaction may be performed.
The learned D.P.O. has appeared on behalf of
State and has submitted that there is the record of valid
licence up till 31 August, 2014 and the letter also to renew
it so kindly appropriate order be passed.
Heard and perused the record. From perusal of
the record and after hearing to the learned counsel it is
evident that up till now there is no record which could
clear that licence has been renewed and is up to date and
in between the period there is serious allegation of
committing of the offences as of 406/420/120B/467/468
of I.P.C. against the employees of the authority so in my
view, if the office is allowed to its work after opening the
seal the evidence regarding the offences might be
destroyed so in my view, the application is not fit and
accordingly it is rejected.‖
(emphasis supplied)
5. The aforesaid order dated November 04, 2015 is under
challenge in the present application.
6. Mr. Ansul, learned counsel appearing for the petitioners
has submitted that the petitioner no.1 is the Branch Manager of the
Company at Motihari, incorporated under the provision of Indian
Companies Act, 1956 having its head office at Kochi, Kerala,
whereas the petitioner no.2 is the Company being represented by
Brajesh Kumar Srivastava (petitioner no.1), who has been appointed
and authorized to represent the Company in the cases relating to its
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Motihari Branch. He has submitted that the Company deals in foreign
currency on the basis of license issued by the Reserve Bank of India
under Section 10 of the FEMA as authorized dealer in AD Category-
II. The Company is also licensed to assist passengers in getting their
passport made and is accredited by International Air Transport
Association. The work of the Company involves collecting foreign
currency from the intending sellers and pays them back in Indian
currency. The foreign currency so collected is initially deposited at
different branches of the Company from where it is sent to Patna
Head Office and then to Delhi Head Office by Air Cargo. All these
legitimate business is carried by and under the authority of law.
7. Mr. Ansul, learned counsel, has further submitted that as
it happened on September 22, 2015, the staff of the Company was
carrying the foreign currency equivalent to Rs.39 lakhs collected by
Motihari and Bettiah Branch. None of it was Indian currency.
Moreover, it was accompanied by the register showing details of the
payments so made. While checking of the vehicles for cash transfer in
election time, the vehicle of the Company was caught and the police
seized the same. He has further submitted that thereafter the
informant was grabbed by the police and was made to lodge flimsy
and false FIR. The informant has unnecessarily mentioned one
withdrawal by the Guard Indradeo Sah with which he is totally
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unconnected. He has submitted that the transaction by Indradeo Sah is
a genuine transaction with genuine document. Furthermore, the
informant has alleged that Rs.65,840/- was defalcated by forging his
signature, but it is not indicated as to when and where he had
deposited the equivalent foreign currency.
8. He has submitted that the Company is an authorized person
to deal in foreign exchange or in foreign securities, as an authorized dealer
vide its AD Category-II License No. 01/2006 dated August 21, 2013 issued
by the Reserve Bank of India (for short ‗RBI') under Section 10 of the
FEMA and it had applied for renewal of its license on August 25,
2014 with the RBI in time and in pursuance of it the RBI issued letter
bearing No.FE.CHN.FMID535/55.81.001/2014-15 dated August 29,
2014, wherein it was explicitly mentioned that when an application
for renewal of money changer's license is submitted to the RBI, the
license shall continue in force until the date on which the license is
renewed or the application is rejected as the case may be.
9. He has further submitted that in pursuance of the
aforesaid letter, the RBI, in exercise of its power under Section 10 of
the FEMA renewed the license of the Company as an authorized
dealer AD Category-II License No.01/2006 on January 04, 2016,
which was valid until August 31, 2016 and will expire on September
1, 2016 unless an application for the renewal of license would be
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made at least one month before the date of expiry and no rejection of
the same would be communicated by the RBI. He has submitted that
as the operations of Branch have been completely stopped, its
customers are suffering heavy losses. A few of the customers served
upon the petitioners legal notices demanding return of the mortgaged
articles or jewellery. The Branch is sealed and the customers are
agitated and confused as to how and where they can repay the loan
installments and recover their mortgaged items.
10. Advancing his argument, he has further submitted that
the sealing of the premises has been done with an ill motive and is
completely illegal and unjust for the reason that the Company met all
statutory requirements and followed all rules and regulations laid
down in that regard and the action of the police in sealing the
premises is a glaring example of executive arbitrariness and police
high-handedness.
11. Per contra, Dr. Mayanand Jha, learned counsel appearing
for the State has contended that during the period of Bihar Assembly
Election, in exercise of powers under different election laws and rules
thereon and for the purpose of maintaining peace and tranquility and
also prevention of economic offences leading to affect the election
processes, by the order of the District Magistrate, several teams were
constituted headed by the Magistrates duly appointed and these teams
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were deployed for conducting raids on different check-posts of the
Motihari District. Simultaneously, police team was also working for
checking at different posts under the control of the Magistrate
concerned.
12. He has further contended that on September 22, 2015 at
12.35 p.m. the police team headed by the Circle Inspector, Chakia
was engaged in checking process at Toll Plaza located at Persauni
Khem, Chakia within the jurisdiction of Chakia Police Station. In the
meantime, a Bolero car, bearing Registration No.BR-05H 4303
stopped at the Toll Plaza. In the process of checking, it was found that
two sealed plastic packets having reference no. 025 were kept inside
the vehicle in suspicious situation. In presence of the Circle Officer,
Chakia, who was present there in the capacity of the Magistrate-in-
Charge, one of the packets containing foreign currency of Quibati
Dinar, Saudi Rial, US Dollar, UAE Dirham etc. amounting to
Rs.703070,96/- in terms of Indian valuation and the another packet
containing foreign currency amounting to Rs.3209,031,17/- in terms
of the Indian valuation were seized.
13. Dr. Jha, learned counsel, has further contended that on
September 23, 2015, on a written complaint of the informant Raushan
Kumar with the Chakia Police Station complaining forgery,
preparation of false documents and criminal conspiracy by the office
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bearers of the Company, an FIR was drawn in the Police Station and
the police team raided the Motihari Branch of the Company and
during raid, several objectionable documents were recovered, which
created obvious ground in the mind of the Magistrate for taking quick
and safe steps for preventing further interpolation in the documents
by the accused persons and consequent thereupon on the decision of
the Magistrate, the premises was locked and sealed and memo of seal
was prepared in presence of witnesses and the Magistrate concerned
in exercise of power under Section 102(1) of the CrPC.
14. However, Dr. Jha, learned counsel, has fairly conceded
that on query by the raiding team, the office bearers of the Company
showed the license for the foreign currency exchange business which
was to expire on September 01, 2014, but on further query they did
not show any paper to establish the claim that they had applied for
further extension of license so that a reasonable inference could have
been drawn that the license was valid on date of raid. He, however,
admits that later on a registered letter was received by the
Investigating Officer of the case on April 24, 2016 containing letters
showing that the license of the Company had been extended till
September 1, 2016. In view of the above submissions, Dr. Jha,
learned counsel appearing for the State has submitted that the sealing
of the premises cannot be held to be bad.
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15. In reply, learned counsel for the petitioner has submitted
that the counter affidavit filed on behalf of the Opposite Party No.2,
which has duly been sworn by the Superintendent of Police, East
Champaran, Motihari, it has been admitted in Paragraph No.6 that the
license of the Company has been renewed and extended till
September 01, 2016. Referring to Paragraph No.7 of the aforesaid
counter affidavit, it has been submitted that the Superintendent of
Police, Motihari has admitted that the police have no power to seal a
company office premises and the police cannot close any company
office carrying on business in foreign exchange vide valid license
from RBI.
16. I have heard learned counsel for the parties and perused
the materials available on the record.
17. Be it noted first that from the pleading of the parties, it
would be evident that the Company was having valid license to deal
in foreign currency on the basis of license issued by the RBI on the
date of sealing of the premises.
18. There is no dispute to the fact that the license of the
Company as an authorized dealer is valid until August 31, 2016.
There is also no dispute to the fact that the premises in question has
been sealed in connection with Chakia P.S.Case No. 206 of 2015
registered under Sections 420, 120-B, 467, 468, 471 and 406/34 of
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the IPC as also Sections 3, 4 and 13 of the FEMA. It has to be seen in
the context of the allegations made in the FIR as to whether the police
or for that matter the Magistrate had any authority in law to seal the
premises in question.
19. In order to examine this issue, the first question which
would arise for consideration is whether the police have got any
power either to inspect or to enquire or to carry out any search and
seizure in respect of contravention of any of the provisions of the
FEMA.
20. The FEMA replaces the Foreign Exchange Regulation
Act, 1973 (for short ‗FERA'). FERA was introduced in 1974 to
consolidate and amend the then existing law relating to foreign
exchange. FERA was amended in 1993 to bring about certain
changes, as a result of introduction of economic reforms and
liberalization of Indian economy. FEMA has come into force with
effect from June 1, 2000. As a matter of fact, any offence under the
FERA was a criminal offence punishable with imprisonment as per
the CrPC, but under the FEMA, the contravention is considered to be
a civil offence only punishable with some amount of money as
penalty.
21. A reading of Section 10 of the FEMA would make it
evident that the RBI may, on an application made to it in this behalf,
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authorize any person to be known as authorized person to deal in
foreign exchange or in foreign securities, as an authorized dealer,
money changer or off-shore banking unit. For such authorization
application has to be made to the RBI and the authorization shall be
in writing and shall be subject to the conditions laid down therein.
22. Section 12 of the FEMA gives power to the RBI to cause
an inspection to be made by any officer of the RBI specially
authorized in writing by it in this behalf of the business of any
authorized person as may appear to it to be necessary or expedient for
the purpose of -
(a) verifying the correctness of any statement, information
or particulars furnished to the RBI;
(b) obtaining any information or particulars which such
authorized person has failed to furnish on being called
upon to do so; or
(c) security compliance with the provisions of this Act or of
any rules, regulations, directions or orders made
thereunder.
23. Under Chapter IV of the FEMA, Section 13 deals with
contravention and penalties. It prescribes that if any person
contravenes any provision of this Act, or contravenes any condition
subject to which an authorization is issued by the RBI, he shall, upon
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adjudication, be liable to a penalty up to thrice the sum involved in
such contravention where such amount is quantifiable, or up to two
lakh rupees where the amount is not quantifiable, and where such
contravention is a continuing one, further penalty which may extend
to five thousand rupees for every day after the first day during which
the contravention continues.
24. Section 14 of the FEMA gives power to the adjudicating
authority to enforce the orders passed for contravention of any of the
provisions of the Act punishable under Section 13. Sub-section (1) of
Section 14 prescribes that subject to the provisions of sub-section (2)
of section 19, if any person fails to make full payment of the penalty
imposed on him under section 13 within a period of ninety days from
the date on which the notice for payment of such penalty is served on
him, he shall be liable to civil imprisonment under this section. Sub-
Section (2) of Section 14 further prescribes that no order for the arrest
and detention in civil prison of a defaulter shall be made unless the
Adjudication Authority has issued and served a notice upon the
defaulter calling upon him to appear before him on the date specified
in the notice and to show cause why he should not be committed to
the civil prison, and unless the Adjudicating Authority, for reasons in
writing, is satisfied-
(a) that the defaulter, with the object or effect of obstructing
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the recovery of penalty, has after the issue of notice by
the Adjudicating Authority, dishonestly transferred,
concealed, or removed any part of his property, or
(b) that the defaulter has, or has had since the issuing of
notice by the Adjudicating Authority, the means to pay
the arrears or some substantial part thereof and refuses
or neglects or has refused or neglected to pay the same.
25. Section 15 of the FEMA provides for compounding of
the contravention under Section 13.
26. Under Chapter V, Section 16 of the FEMA gives power
to the Central Government to appoint Adjudicating Authority for the
purpose of adjudication under Section 13. It prescribes that for the
purpose of adjudication under Section 13, the Central Government
may, by an order published in the Official Gazette, appoint as many
officers of the Central Government as it may think fit, as the
Adjudicating Authorities for holding an inquiry in the manner
prescribed after giving the person alleged to have committed
contravention under section 13, against whom a complaint has been
made under sub-section (3) a reasonable opportunity of being heard
for the purpose of imposing any penalty. Sub-section (2) of Section
16 prescribes that the Central Government shall, while appointing the
Adjudicating Authorities under sub-section (1), also specify in the
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order published in the Official Gazette, their respective jurisdictions.
Sub-section (3) of Section 16 mandates that no Adjudicating
Authority shall hold an enquiry under sub-section (1) except upon a
complaint in writing made by any officer authorized by a general or
special order by the Central Government.
27. In view of the provisions of the FEMA discussed
hereinabove, it would be evident that the contravention of any of the
provisions of the Act does not constitute any criminal offence.
Further, the police officers have not been given any authority either to
institute a complaint or register an FIR on a complaint or to
investigate the same for contravention of the provisions of the FEMA.
The violation of the provisions of the FEMA can only be considered
as civil offence punishable with some amount of money as penalty
and in failure of compliance with the order passed by the
Adjudicating Authority duly appointed under the Act by the Central
Government, a person may be liable to civil imprisonment.
28. Thus, there is no doubt in the mind of this Court that the
police or the Magistrate had no authority to carry out any inspection,
search, seizure or confiscation of any property for violation of any of
the provisions of the FEMA.
29. The next question which would be relevant for
consideration is whether the police had any authority to seal the
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premises of the Company in question and stop its business
transaction. In this regard, it would be relevant to look to the
averments made in the counter affidavit filed on behalf of the
Superintendent of Police, East Champaran, Motihari (Opposite Party
No.2). In the said counter affidavit, he has admitted that the police
had no power to seal a company office premises and they cannot
close any company office carrying on business in foreign exchange.
The relevant portions of the counter affidavit are reproduced as
under :
―6. That it is also worthwhile to mention here that in
course of investigation by the team, the office bearers
of the company office showed the required license for
the foreign currency exchange business, which was to
expire on 01.09.2014 and on enquiry they did not
show any paper to show that they have applied for
further extension of license to the authority authorized
or that so that a reasonable inference can be drawn
that his license is valid till the date, the application for
renewal is rejected. Later on a registered letter speed
post was received by the I.O. of this case on
24.04.2016containing letters showing that the license of the aforesaid business concerned has bee extended till September, 2016.
7. That, so far as the points required for clarification, it is submitted as follows :
i. The police have got no power to seal a company office premises.
ii. The police can't close any company office carrying on Business in foreign exchange vide valid license from RBI.
iii. That on the very point of time when the investigation was conducted, the office bearers of the company did not show any paper showing Patna High Court Cr.Misc. No.54731 of 2015 dt.03-05-2016 17/25 that company office has filed an application before the authority for renewal license so that a reasonable inference can be drawn by the Magistrate concerned that the company had a deemed license. The office was sealed at the decision of the Magistrate on the compelling situation mentioned above.‖
30. Though the Opposite Party No.2 has virtually conceded that the police had no authority to either seal the business premises or close the business transaction of the Company, it is deemed necessary to examine the issue further as the learned counsel for the State has tried to justify the action of the police.
31. Apart from FEMA, the only other provision under which the offences are alleged to have been committed in the FIR is IPC, which is the primary penal law of India and the procedure for trial of the offences under the IPC is governed by the CrPC. The CrPC is a comprehensive and exhaustive procedural law for collection of evidence, examination of witnesses, interrogation of accused, arrests, search and seizure, safeguards and procedures to be adopted by police and courts, bail, process of criminal trial, method of conviction and the rights of the accused for a fair trial. The procedure for a criminal trial is primarily, except as otherwise provided, governed by the CrPC.
32. Section 102 of the CrPC defines the power of a police officer to seize certain property especially where commission of an Patna High Court Cr.Misc. No.54731 of 2015 dt.03-05-2016 18/25 offence is alleged. The police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under the circumstances which create suspicion of commission of any offence. For better appreciation of the issue involved in this case, Section 102 is reproduced as under :
―102. Power of police officer to seize certain property.-- (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same :
Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale‖. Patna High Court Cr.Misc. No.54731 of 2015 dt.03-05-2016 19/25
33. As already noted above, the police have no role in examining the contravention of any provision under FEMA, the primary question, which would be relevant now in the present case is whether or not the police have power to seal or seize an immovable property under Section 102(1) of the CrPC.
34. In this regard, it would be relevant to note that the question whether the police have power to seize immoveable property under Section 102 of the CrPC came up for consideration before a Division Bench of the Bombay High Court. However, in view of conflicting judgments of two Division Benches of the High Court, the matter was referred to the Full Bench. The Full Bench of the Bombay High Court considered the matter in detail in Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood through its Power of Attorney Holder Mr.Rajesh Baxi Chetna Properties Pvt.
Ltd. Vs. The State of Maharashtra [MANU/MH/1561/2010], wherein, an elaborate analysis of the powers of the police under Section 102 Cr.P.C. was made. The Bench gave a split judgment with the majority observing that police cannot attach immovable property under Section 102 of the CrPC. The reference was answered as under:
"86. To sum up, we answer the reference thus:
Q.(a) Whether the words "any property" used in Sub- section (1) of Section 102 of the Code of Criminal Patna High Court Cr.Misc. No.54731 of 2015 dt.03-05-2016 20/25 Procedure, 1973 would mean to include "immovable property"?
Ans. We, therefore, hold that the expression "any property" used in Sub-section (1) of Section 102 of the Code does not include immovable property. Question
(a) is, therefore, answered in the negative.
Q. (b) Whether a police officer can take control of any immovable property which may be found under circumstances which create suspicion of the commission of any offence?
Ans. No."
35. The judgment of the Full Bench makes it clear that the police cannot exercise its authority in attaching or sealing properties in criminal cases in exercise of power under Section 102 of the CrPC. The Bombay High Court has held that under Section 102 of the CrPC, the term property which the police can attach is only moveable.
36. The Full Bench of the Bombay High Court refused to extend the law laid down by the Supreme Court in the State of Maharashtra Vs. Tapas D. Neogy [(1999) 7 SCC 685] to immovable properties in order to bring them within the purview of Section 102, Cr.P.C. In paragraph no.66 of the judgment, the Full Bench has held as follows:
"66. If it is taken for a while that Section 102 of the Code provided for seizure of immovable property for the purpose of ensuring the offenders do not derive benefits from the property which they got as a result of crime as well, then it would have been unnecessary for the Legislature to provide for attachment and, Patna High Court Cr.Misc. No.54731 of 2015 dt.03-05-2016 21/25 eventually, forfeiture of such property under the Criminal Law (Amendment) Ordinance, as also the provisions of Section 105-A to 105-L of the Code and Section 68-C to F of the Narcotic Drugs and Psychotropic Substances Act. It became necessary for the Legislature to provide for attachment and forfeiture of such property which the offenders had got as a result of crime, because Section 102 did not and could not have provided for attachment of such property."
37. Similar issue had arisen before the Kerala High Court in Kuriachan Chacko Vs. State of Kerala in W.P.(C) No.12275 of 2012 dated 26.07.2012 and it has been held in paragraph 14 as under :
"14. Section 102, by no stretch of imagination, can apply in a situation like this. Even though the words "any property" are there in Section 102, it is clear from a reading of sub-sections (1) to (3) together, that what is involved is not the seizure of immovable property. As already noticed, Section 83 contains a provision for attachment of immovable property and the power is conferred on the court itself. Under Section 102, the power of seizure is on the police officer and it has never envisaged a situation like the one herein, where a police officer can direct attachment of immovable property. Therefore, in the absence of a specific conferment of power on the Police officer, the steps for attachment made by the Sub Registrar herein, relying upon the request made by the Police officer, cannot hold good. The said letter, even going by the wordings therein, cannot amount to an order of attachment also. Therefore, merely because there is a power for the Police officer to conduct investigation and collect details of properties of the accused or others involved in that process, it can never be treated as an order of attachment for enabling the Sub Registrar to put an endorsement in the registers."
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38. Recently, in M.T. ENRICA LEXIE & Anr. VS.
DORAMMA & Ors. [(2012) 6 SCC 760], the Supreme Court examined the provisions of Section 102 of the CrPC. In the said case, two Indian fishermen belonging to Kerala State were killed by firing emanating from an Italian vessel, M.T. Enrica Lexie which was en voyage from Singapore to Egypt and passing through the Arabian Sea. The vessel was intercepted and persons on board were brought to the coast by Kerala Police. Investigation revealed that firing was resorted to by two out of six Italian marines, who were responsible for protecting the vessel from pirates. The stand of the vessel owners was that the crew had no control over action of marines deputed by the Italian Government. The limited issue in that case was whether the vessel and the marine, against whom a criminal case was pending, could be allowed to leave India. The Single Judge of the High Court allowed the writ petition filed on behalf of the vessel and its owners. A Division Bench, however, reversed the decision by holding that the question regarding release of the vessel could be agitated before the Magistrate having necessary jurisdiction under Section 457 of the CrPC.
39. After hearing the parties, the Supreme Court observed in M.T. ENRICA LEXIE (Supra) that the police officer in course of investigation can seize any property under Section 102 of the CrPC if Patna High Court Cr.Misc. No.54731 of 2015 dt.03-05-2016 23/25 such property is alleged to be stolen or is suspected to be stolen or is the object of the crime under investigation or has direct link with the commission of offence for which the police officer is investigating into. A property not suspected of commission of the offence which is being investigated into by the police officer cannot be seized. Under Section 102 of the CrPC, the police officer can seize such property which is covered by Section 102(1) of the CrPC and no other.
40. Coming back to the facts of the present case, it would be evident that the office premises of the Company, which was sealed by the police in connection with the aforesaid police case, is neither a stolen property nor the object of the crime nor has any link with the commission of any offence. It is not a property which is covered by Section 102(1) of the CrPC. Hence, the sealing of the premises in exercise of power under Section 102(1) of the CrPC by the police was patently bad in the eyes of law in view of the decision of the Supreme Court in M.T. ENRICA LEXIE (Supra).
41. Keeping in mind the ambit and scope of Section 102 of the CrPC and the ratio laid down by the Full Bench of the Bombay High Court in Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood (Supra) and the Kerala High Court in Kuriachan Chacko (Supra), this Court is also of the considered opinion that under Section 102(1) of the CrPC the police have no power to seal the Patna High Court Cr.Misc. No.54731 of 2015 dt.03-05-2016 24/25 immoveable property and the word seize under Section 102 of the CrPC used under Section 102 of the CrPC would mean only actual taking possession of the moveable property. I find myself in complete agreement with the ratio laid down by the Full Bench of the Bombay High Court and the Kerala High Court in the aforementioned decisions with regard to the powers of the police officer to attach immoveable property under Section 102(1) of the CrPC.
42. Even otherwise, I find it a bit surprising as to how the learned Chief Judicial Magistrate could have passed the impugned order dated November 04, 2015 negating the prayer made by the petitioner for unsealing the premises.
43. It would be apparent from paragraph 2 of the impugned order, as quoted hereinabove, that the District Prosecution Officer appearing on behalf of the State had submitted that there is a valid license up till August 31, 2014 and the letter also to renew it. The learned Chief Judicial Magistrate completely ignored the submission made by the learned prosecutor and failed to apply his judicial mind to the facts of the case and the laws involved. The learned Chief Judicial Magistrate ought to have considered that the operation of the business being conducted by the Company under a valid license issued by the authorities competent to issue the same could not have been stopped due to any illegal act of any official of the Company. By Patna High Court Cr.Misc. No.54731 of 2015 dt.03-05-2016 25/25 passing the impugned order, the learned Chief Judicial Magistrate has virtually abdicated his duty and thus failed in exercising the jurisdiction vested in him.
44. Regard being had to the discussions made hereinabove, the impugned order dated November 04, 2015 passed by the learned Chief Judicial Magistrate, Motihari in Chakia P.S.Case No. 206 of 2015 is hereby quashed. The Superintendent of Police, Motihari is directed to unseal the premises of the Company in question forthwith and allow the Company to run its legally operated business of the said Branch.
45. With these observations and directions, the application is disposed of.
(Ashwani Kumar Singh, J) Pradeep/-
AFR U T