Jharkhand High Court
Bishwanath Paul vs The State Of Jharkhand on 3 November, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 277 of 2014
Bishwanath Paul
Son of Sri Shambhu Nath Paul, resident of village- Gopalpur, Tola- Dahigora,
PO & PS- Ghatsila, District- East Singhbhum .... ... Petitioner(s)
-V e r s u s-
State of Jharkhand .... ... Respondent
CORAM: - HON'BLE MR. JUSTICE RAVI NATH VERMA
For the Petitioner(s) : - M/s. P.A.S. Pati & Tarun Kumar Mahato, Advocates
For the State : - Mr. Ram Nivas Roy, G.P.III &
Mr. J.Rahman, Advocate
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C.A.V. ON: 07/08/2015 PRONOUNCED ON: 03/11/2015
Invoking the extra ordinary jurisdiction of this Court
under Article 226 of the Constitution of India, the petitioner has
prayed for a direction to the concerned respondent- Ghatsila Police to
immediately and forthwith remove the seal of the building standing
on Khata no. 363, plot no. 942 of Mouza- Gopalpur, P.S.- Ghatsila,
East Singhbhum, which has been sealed in connection with Ghatsila
P.S. Case No. 26 of 2013 instituted under Sections 420, 467, 468, 471,
472 and 120-B of the Indian Penal Code and Section 3/6 of the Prize
Chits and Money Circulation Scheme (Banning) Act, 1978 (hereinafter
referred to as "the Act").
2. Bereft of unnecessary details, the facts, which are
necessary to be stated, are that the petitioner is the owner of the
house situated at plot no. 942 of Khata no. 363 of Mouza Gopalpur,
Survey Thana no. 113, P.S.-Ghatsila, District- East Singhbhum and a
portion of the house in question was given on monthly tenancy to
one Company namely Mangalam Agro Products Ltd. and in lieu of
that an agreement for monthly tenancy was entered between the
petitioner and the Managing Director of the aforesaid company on
30th August, 2010 on payment of monthly rental of Rs.7,500/-. One of
the terms of the agreement was that the tenancy will terminate on
31.05.2013. On 30.04.2013, at the instance of the Block Development Officer, Ghatsila, the aforesaid case was lodged against the Officers 2 and other employees of Mangalam Agro Products Ltd. and also against other companies on the ground that the several chit fund companies are doing business and are trying to cheat the public at large by floating several schemes without taking any prior permission either from the Reserve Bank of India or SEBI. The informant along with police personnel after enquiry searched the premises of Mangalam Agro Products Ltd. and found that this company was also engaged in collecting money through recurring deposits and was cheating the public. Whereafter, the team including the informant seized several documents and seizure list was prepared. The Branch Manager of the said Company was arrested. Similarly, the premises of other companies were also searched. After completion of search, the premises wherein the financial institutions had their offices, were sealed by the police personnel on 30.04.2013 and since then the petitioner's premises is under seal.
3. Learned counsel Mr. Parthsarthi appearing for the petitioner submitted that the premise in question was given on monthly tenancy basis to the said company Mangalam Agro Products Ltd. but the police after search of the premise forcefully sealed the premise of the petitioner on 30.04.2013. It was also contended that the police has got no power to seal any premises in connection with any case under any of the provision of the Code of Criminal Procedure and that even if the said company had committed any wrong or financial irregularity or had not taken prior permission of competent authority to run business, for that the premise cannot be sealed. The tenancy agreement had expired long back and after expiry, the said company Mangalam Agro Products Ltd. is no more a tenant of the petitioner and knowingly, the police even after request refused to open the seal. Hence, the petitioner has prayed for removal of the seal from his house.
4. Learned counsel representing the State relying upon the counter affidavit already filed in W.P.(Cr.) no. 276 of 2014 at the instance of the Sub-Divisional Police Officer, Ghatsila submitted that 3 the said Mangalam Agro Products Ltd.was running office in the premises of the petitioner and had cheated several persons by floating different fixed deposit schemes and the petitioner had never given any information to the police regarding the illegal trading by the said company. It was also submitted that the premise of the petitioner is the place of occurrence and is an important evidence to establish the case against the accused persons and if the seal of the said premise is opened, there is every chance to change the nature of the place of occurrence and the investigation is pending.
5. The moot question, which arises for determination in this case, is whether the concerned police officer was competent in law to seal the house in question, which was given on a monthly tenancy to a company?
6. For better appreciation of the issue involved in this case, a reference of Section 102 of the Code of Criminal Procedure is necessary, which deals with the power of police officer to seize certain property, which reads as follows:
"Section 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."
7. So far as the right of the police to take property in its custody is concerned, the aforesaid provision empowers the police 4 officer to seize certain property but from mere perusal of the provision, it would appear that the 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. This Section undoubtedly empowers a police officer to seize the immovable property but admittedly the house in question was given on tenancy to the company and it was never a stolen property or has any nexus with the offence, which is under investigation by a police officer. Even during investigation, it has not come that the house in question was either object of crime or was suspected of commission of offence. In a case M.T. Enrica Lexie and another Vs. Doramma & others ; (2012) 6 SCC 760, the Hon'ble Supreme Court while dealing with the case of Italian Marines in the murder of two Indian Fishermen held that refusing permission to the ship to continue its voyage on the ground that it could be seized by police under Section 102 of the Code of Criminal Procedure was improper and the court allowed the ship to sell out after safeguarding the presence of sail crew members and marines as and when required by the court.
8. In the instant case, apparently, there is no dispute with regard to the title or possession of the house in question rather the dispute relates to an illegal act committed by the company and its personnel. So, it cannot be said that the house is either the stolen property or has any nexus with the offence committed by the personnel of the company. Further, no useful purpose is going to be served by sealing of the immovable property of the petitioner. Even, it cannot be inferred that for the purpose of facilitating the investigation, the police under Section 102 of the Code of Criminal Procedure has any power to put the seal on the immovable property.
9. In view of the above discussion, the respondent concerned, specially the Sub-Divisional Police Officer, Ghatsila and the informant are directed to remove the seal and vacate the premises of the petitioner after making the inventories of the articles, which are 5 lying in the portion of the house, which was given on tenancy to the said company Mangalam Agro Products Ltd. The respondent concerned is further directed to make provision for the safe keeping of the inventories at appropriate place for its production before the court as and when required. It is expected that the entire process shall be completed within a period of two weeks from today and the petitioner shall be handed over the vacant possession of the premise in question involved in this writ petition.
10. With the above directions, the writ petition stands disposed of.
(R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 3rd November, 2015 Ritesh/N.A.F.R.