Gauhati High Court
Om Prakash Sharma vs The State Of Assam on 27 May, 2020
Page No.# 1/8
GAHC010035002020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 58/2020
1:OM PRAKASH SHARMA
S/O LATE BASUDEV SHARMA, R/O C/O PREMA LAPANG, AMGAK,
BYRNIHAT, 16TH MILE, P.O.-NONGPOH, MEGHALAYA AND CARRIES OF
BUSINESS UNDER THE NAME AND STYLE OF SHARMA COAL TRADERS
AT BYRNIHAT, 16TH MILE (NH37), SONAPUR, DIST-KAMRUP, ASSAM
VERSUS
1:THE STATE OF ASSAM
(NOTICE THROUGH THE PUBLIC PROSECUTOR, ASSAM)
Advocate for the Petitioner : MR. A K MAHESWARI
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.Rev.P. 67/2020
1:RAKESH KUMAR BANSAL
S/O- SHRI BABU RAM BANSAL
R/O- BYE LANE 14
DUTI RAM GARO
NH 37 BELTOLA
GHY
DIST.- KAMRUP (M)
ASSAM AND CARRIES OF BUSINESS UNDER THE NAME AND STYLE OF
JAGADAMBA COAL TRADERS AT 15TH MILE
BYRNIHAT
SONAPUR IN THE DIST. OF KAMRUP (M) ASSAM
VERSUS
Page No.# 2/8
1:THE STATE OF ASSAM
REP. BY P.P. ASSAM
Advocate for the Petitioner : MR. A K MAHANTA
Advocate for the Respondent : PP ASSAM
Linked Case : Crl.Rev.P. 71/2020
1:PRAVIN JHA
S/O SHRI ARUN JHA
R/O 15TH MILE
ABHISEK KATA P.O.-BYRNIHAT
P.S.-SONAPUR DIST-KAMRUP(M)
ASSAM
AND CARRIES OF BUSINESS UNDER THE NAME AND STYLE OF SHREE
KHATU NARESH ENTERPRISE AT 15TH MILE
BYRNIHAT SONAPUR
DIST-KAMRUP(M) ASSAM
VERSUS
1:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM
Advocate for the Petitioner : MR. A K MAHESWARI
Advocate for the Respondent : PP ASSAM
Linked Case : Crl.Rev.P. 70/2020
1:PANKAJ KUMAR CHACHAN
S/O- NARENDRA KUMAR CHACHAN
R/O- KHANAPARA
NEAR ASSAM WEIGH BRIDGE
P.O- KHANAPARA
GUWAHATI
DIST- KAMRUP (M)
ASSAM AND CARRIES OF BUSSINESS UNDER THE NAME AND STYLE OF
BBR TRADING COMPANY AT 15TH MILE
BYRNIHAT SONAPUR
DIST- KAMRUP (M) ASSAM
VERSUS
Page No.# 3/8
1:THE STATE OF ASSAM
REP. BY THE PP ASSAM
Advocate for the Petitioner : MR. A K MAHESWARI
Advocate for the Respondent : PP ASSAM
Linked Case : Crl.Rev.P. 66/2020
1:SUBHAM JAIN
S/O SHRI SUDESH JAIN
R/O BYE LANE NO. 14
NH-37
BELTOLA
P.O. AND P.S.-BASISTHA
DIST-KAMRUP(M)
AND CARRIES OF BUSINESS UNDER THE NAME AND STYLE OF BAHUBALI
ENTERPRISES AT 15TH MILE
BYRNIHAT SONAPUR
DIST-KAMRUP(M)
ASSAM
VERSUS
1:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM
Advocate for the Petitioner : MR. A K MAHESWARI
Advocate for the Respondent : PP ASSAM
Linked Case : Crl.Rev.P. 69/2020
1:MARDIBOR LAMURONG
S/O MR. KENEDI NONGRUM
R/O 150
SATUNGAPOHSKUL
P.O. AND P.S.-SUTNGA
DIST-JAINTIA HILLS
MEGHALAYA AND CARRIES OF BUSINESS UNDER THE NAME AND STYLE
OF MARDIBOR LUMURONG COAL ENTERPRISE AT 15TH MILE
BYRNIHAT SONAPUR
DIST-KAMRUP (M)
ASSAM
Page No.# 4/8
VERSUS
1:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM
Advocate for the Petitioner : MR. A K MAHESWARI
Advocate for the Respondent : PP ASSAM
Linked Case : Crl.Rev.P. 68/2020
1:NASIM ARZOO
S/O. MD. SAMIM
R/O. PATHER KUCHI GALI
MAKONI BYE LANE
NH 37 BELTOLA
P.S. BASISTHA
DIST. KAMRUP (M)
ASSAM AND CARRIES OF BUSINESS UNDER THE NAME AND STYLE OF K.
ENTERPRISES AT 45
SHANTI PATH
GUWAHATI DIST. KAMRUP (M)
ASSAM.
VERSUS
1:STATE OF ASSAM
REP. BY PP ASSAM.
Advocate for the Petitioner : MR. A K MAHESWARI
Advocate for the Respondent : PP ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
Date : 27-05-2020 Heard Mr. A.K. Maheswari, learned counsel for the petitioners and Mr. R. Saikia, learned Addl. P.P., Assam.
Page No.# 5/8 All these seven revision petitions having arisen out of the common order passed by the learned Special Judge, Guwahati on 18.01.2020 in CID P.S. Case No. 06/2018 are taken up for disposal by this common order. By the order impugned, the applications filed by the present petitioners under Section 451 CrPC seeking interim custody of the seized article (coal) was rejected by the learned trial court.
Police seized 120 MT of coal belonging to Mardibor Lamurong, proprietor of Mardibor Lumurong Coal Enterprise; 300 MT of coal belonging to Pravin Jha, proprietor of M/S Khatu Naresh Enterprise; 75 MT of coal belonging to Pankaj Kr. Chachan, proprietor of M/S B.B.R. Trading Co.; 300 MT of coal belonging to Shubham Jain, proprietor of M/S Bahubali Enterprise; 600 MT of coal belonging to Nasim Arzoo, proprietor of M/S K. Enterprise; 200 MT of coal belonging to Rakesh Kr. Bansal, proprietor of M/S Jagadamba Coal Traders; 250 MT of coal belonging to Om Prakash Sarmah, proprietor of M/S Sharma Coal Traders on 04.11.2019 and 30.11.2019 respectively from a campus located at 16th Mile, Byrnihat, Sonapur near J.K. Cement Factory in presence of the Circle Officer and other officials of Legal Metrology department.
It appears from the report and the seizure list that at the time of seizure of the coals, which were stocked at the premises as indicated above, the petitioners to whom the coals belong, were not present.
It is submitted by Mr. A.K. Maheswari, learned counsel for the petitioner that the seizure of coal was only symbolic, as the coals were still in the premises, where the same were stored by the petitioners. The contention of the learned counsel for the petitioners is that the petitioners are traders dealing in coal and they have purchased the coal with valid documents and stored in the rented premises and they have also produced the relevant documents to the police, which were not taken care of and hence the petitioners have preferred an application under Section 451 CrPC seeking interim custody of the seized coal which stood rejected. From the petition, it appears that the petitioner Pravin Jha sought for custody of 469 MT of coal, Rakesh Kr. Bansal sought for custody of 125 MT of coal, Mardibor Lamurong sought for custody of 122 MT of coal, Nasim Arzoo sought for custody of 616.575 MT of coal, Om Prakash Sharma sought for custody of 250 MT of coal, Pankaj Kr. Chachan sought for custody of 118 MT of coal and Subham Jain sought for custody of 561 MT of coal. It is also Page No.# 6/8 reflected in the report that seizure was made symbolically and production before court was also symbolic and because of huge quantity of coal, police could not measure or weigh the coal before or after the seizure.
From the seizure list and the petition filed by the petitioners, it appears that according to police, 300 MT of coal belonging to Shubham Jain was seized from the aforesaid premises, whereas, Shubham Jain sought custody for 561 MT of coal. The police allegedly seized 75 MT of coal belonging to Pankaj Kr. Chachan, whereas he has sought for custody of 118 MT of coal. Pravin Jha sought for custody of 469 MT of coal whereas, according to police, 300 MT of coal was seized. Mardibor Lamurong sought for custody of 125 MT of coal, whereas police allegedly seized 120 MT of coal, Nasim Arzoo sought for custody of 616 MT of coal, whereas, police allegedly seized 600 MT of coal.
What transpires from the seizure list and the custody petitions is that, there is gulf of difference and dispute as to the quantity of coal seized by police and the quantity of coal for which zimma has been sought for. Apparently, police did not measure or weigh the coals which were symbolically seized and still lying in the premises of the petitioners. The zimma petition was rejected by the learned trial court having noticed certain anomalies in the trade license produced by the petitioners. It appears from the record that three reports have been submitted by police and sum and substance of all the three reports were that there were violation of norms and guidelines notified by Pollution Control Board, violation of guidelines of storage and trading coal and there were discrepancies in the license etc. It is also in the reports that during verification some anomalies have been found with regard to date etc. in the trade license produced by the petitioners. However, all other documents, which were seized as back as on 30.11.2019 have not yet been verified and therefore, the investigating agency has been seeking for time again and again to verify them. I failed to understand when the documents were already produced/seized, why the same could not be verified with the official record of the issuing authorities during the last 6 months and similar reports are being submitted continuously since 19.12.2019. Admittedly, the coal seized in the instant case belongs to the petitioners, though allegation against them was that of violation of various legal provisions in respect of dealing with coal and investigation is being carried out for the last 6 months. However, surprisingly, the investigating agency has not been able even to verify the relevant Page No.# 7/8 documents which were seized nearly 6 months back.
Section 451 CrPC provides that when any property is produced before any criminal court during any inquiry or trial, the court may make such order as it thins fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speeding and natural decay, or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Thus, as per Section 451 CrPC, when any property is produced before criminal court physically or symbolically during inquiry or trial, court can pass order for interim custody of the property until conclusion of the inquiry or trial and in case of articles which were subject to speedy destruction, may pass necessary order for disposal. In the instant case, evidently, the applications were made under Section 451 CrPC for interim custody and the court is well within its jurisdiction to pass an appropriate order for interim custody of the seized goods. The two basic requirements for passing an order under Section 451 CrPC are that the police has seized the property and the same is produced before court during inquiry or trial i.e. inquiry or trial is pending in respect of such goods. The production may not necessarily be physical production, it may also be symbolic production. In the instant case, apparently investigation is pending on the basis of an FIR and a case was registered under Section 120B/379/420/468/471 IPC R/W Section 13(2) PC Act R/W Section 25/40/41 of Assam Forest Regulation added Section 118 IPC and therefore, when investigation is pending and the seized articles were also produced symbolically before trial court, the court in appropriate case may pass an order for interim custody or for disposal of the property, as the case may be, if considered necessary.
Apparently, the seizure in the instant case was symbolic and for all practical purposes, the property is still in possession of the petitioners, inasmuch as, coals were not removed by police from the place and as submitted by the learned counsel for the petitioners, they were only directed not to remove the coals from the place where it was stored. Since the investigation is still pending and for the last 6 months, the goods are kept in open place and the articles are also of huge quantity which even could not be measured, in my considered view, there was no reason for refusal of interim custody of the coal till conclusion of the inquiry or investigation of the case. However, what I notice in the instant case is that there is great anomaly and dispute in respect of quantity of the seized coal as indicated above and as such, unless a proper verification Page No.# 8/8 and measurement of the coal is made, perhaps, it may not be possible for the court to pass effective order for interim custody under Section 451 CrPC.
Thus, having considered the submissions made by the learned counsel for the petitioner and the learned Addl. P.P. and also the report submitted by police, which reflected that some more time will be required to verify the documents, in my considered view there is no difficulty in giving interim custody of the coal to the petitioners, when admittedly the coal were seized from their possession alleging violation of some legal provisions, and police could not remove them because of huge quantity.
In view of the above, these bunch of criminal revision petitions are disposed of with the following direction.
The investigating agency shall weigh/measure the coal in presence of the petitioners within one week and submit a report as to the exact quantity of the coal seized, to the learned Special Judge. Upon submission of the report, learned Special Judge shall pass an order allowing interim custody of the coal to the petitioners subject to furnishing adequate bond and sufficient surety as the learned trial judge deems proper, in order to ensure their production as and when required by court during trial.
With the above observation and direction, all the revision petitions stand disposed of.
Return the case diary.
JUDGE Comparing Assistant