Bombay High Court
Dayabhai S/O. Panchabhai Patel vs State Of Maharashtra Thr. Police ... on 13 April, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION 170 OF 2018
Dayabhai s/o. Panchabhai Patel,
Aged about 54 years, Occ. Business,
R/o. 13, Bhagwat houe, Dhoblay layout,
Surya Nagar, Nagpur ...PETITIONER
...V E R S U S...
1 State of Maharashtra,
Through Police Station Officer,
Police Station Sadar, Nagpur
2 Shri Sheshpuri Goswami,
Assistant Director, Central Integrated
Paste Management Centre,
New Secretariat Building, East Wing,
2nd Floor, Civil Lines, Nagpur - 01
Also at CPWD Quarters, Type-IV, 125,
Seminary Hills, Nagpur ...RESPONDENTS
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Shri Amit Khare, counsel for petitioner.
Shri N.B. Jawade, Additional Public Prosecutor for respondent 1.
Smt. Nirja Choubey, counsel for respondent 2.
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CORAM: ROHIT B. DEO, J.
DATE: th
13
April, 2018.
ORAL JUDGMENT
Heard.
2 Rule. Rule made returnable forthwith with consent. ::: Uploaded on - 16/04/2018 ::: Downloaded on - 17/04/2018 01:43:40 ::: 2 3 Petitioner is assailing the order passed by the learned Judicial Magistrate First Class, Court 6, Nagpur in Miscellaneous Criminal Application 1775 of 2016 by and under which the prayer for release of the goods under section 451 of the Criminal Procedure Code, 1973 ("Code" for short) on Supratnama is rejected and the revisional order rendered by the Additional Sessions Judge, Nagpur in Criminal Revision 196 of 2016 dated 10.11.2017 which confirms the order of the learned Magistrate. 4 Petitioner is a businessman, interalia engaged in trading in timber. During the course of business, the petitioner placed an order with one Kappa International P.T.E. Limited, Singapure for supply of rough square teak logs to be sourced from the Union of Ghana. The quantity ordered was 118.453 cubic meters and the consignment was to be delivered at Nhava Sheva (JNPT Port), Mumbai. The order was placed on 18.7.2015 and the consignment was delivered at the said port. Contemporaneously with the delivery of the consignment, the requisite documents provided by the exporter interalia commercial invoice, certificate of origin, log measurement list / and packing list, Phytosanitary certificate and marine insurance certificate were forwarded to the bankers to facilitate issuance / extension of letter ::: Uploaded on - 16/04/2018 ::: Downloaded on - 17/04/2018 01:43:40 ::: 3 of credit.
5 The genesis of this petition lies in First Information Report dated 26.2.2016 lodged by Manojpuri Goswami at Sadar Police Station, Nagpur City for offence punishable under section 468 and 471 of the Indian Penal Code. The gist of the First Information Report is that Phytosanitary certificate forwarded by the exporter is a forged and fraudulent document. During the course of investigation, the timber logs which reached Inland Container Deport, Nagpur from the JNPT port were seized by respondent 2.
6 The petitioner moved the Judicial Magistrate First Class, Nagpur under section 451 of the Code seeking interim custody of the seized teak logs. The main plank of the submission before the learned Magistrate was that the Phytosanitary certificate which is alleged to be forged and fraudulent was neither prepared nor procured by the petitioner. The petitioner further submitted, that notwithstanding that he did not share any complicity in the issuance of the forged and fraudulent certificate, assuming the certificate to be forged and fraudulent, petitioner did exercise care and caution to fumigate the timber logs. This ::: Uploaded on - 16/04/2018 ::: Downloaded on - 17/04/2018 01:43:40 ::: 4 application was seriously opposed by respondent 2 herein, interalia relying on a judgment of the Delhi High Court in India Timber & Seasoning Plant (Prop. Jaikashi Trading Company Pvt. Ltd.) Vs.. Union of India and Others in Writ Petition 1708 of 2016. The respondent 2 pressed in service the provisions of the Plant Quarantine order to buttress the submission that the forged and fraudulent certificate, and axiomatically the indubitable position that the timber logs were not fumigated in the country of origin posses a serious risks to the flora, fauna and ecology of India. Impressed by these submissions, the learned Magistrate was pleased to reject the application for release of the timber logs on Supratnama. The petitioner assailed the said order before the revisional Court, and met the same fate.
7 The timber logs are lying at Inland Container Depot, Nagpur. A statement is made at the bar that till date, the demurrage payable to the said depot has spirraled to more than 20 lacs. Submission of the learned counsel for the petitioner Shri Amit Khare is that no purpose would be served by keeping the timber logs at the said depot for an indefinite period. The trial is, likely to consume substantial time. The demurrage has already exceeded the cost of the timber logs imported from Union of ::: Uploaded on - 16/04/2018 ::: Downloaded on - 17/04/2018 01:43:40 ::: 5 Ghana. The learned counsel, upon instructions, undertakes that the petitioner shall not use, alienate or otherwise part with custody or possession of the timber logs and the same shall be housed at an appropriate place in appropriate conditions to ensure that no threat is posed to the ecology. The learned counsel for the respondent 2 Smt. Choubey apposed the prayer for releasing the timber logs with some vehemence. Smt. Choubey relying on the judgment of the Delhi High Court and the relevant provisions of the Quarantine order would submit that the fumigation of the timber logs is a mandatory condition and the salutary object is to ensure that the flora, fauna and ecology of India is not put to jeopardy. The submission of the learned counsel Smt. Choubey, is unexceptionable. However, no purpose will be served by forcing the petitioner to continue to keep the teak logs at the Inland Container Depot.
8 The conscious of this Court is satisfied, that in view of the undertaking given by the petitioner, which is noted supra, the seized timber logs can be released on Supratnama. Needless to say, if the respondent 2 notices any infraction of the undertaking given to this Court, the respondent 2 shall always be at liberty to approach this Court seeking modification and / or cancellation of ::: Uploaded on - 16/04/2018 ::: Downloaded on - 17/04/2018 01:43:40 ::: 6 the order of releasing the timber logs on Supratnama. 9 The petitioner is directed to file on record of the learned trial Court an undertaking in terms of the assurance extended to this Court and noted in paragraph 7 supra. Subject to such undertaking being filed before the learned trial Court, the seized timber logs which are presently lying at the Inland Container Depot, Nagpur be released on Supratnama on such conditions as the learned Magistrate deems fit to impose. 10 Rule is made absolute in the aforestated terms.
JUDGE RS Belkhede, PA ::: Uploaded on - 16/04/2018 ::: Downloaded on - 17/04/2018 01:43:40 :::