Telangana High Court
Sri Dattasai Kisan Seva Kendra vs The State Of Telangana And 6 Others on 23 February, 2022
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.12859 of 2021
ORDER:
The petitioner herein seeks a writ of Mandamus declaring the indefinite seizure of the petitioner petrol and diesel dispensing unit since 05.09.2020 as illegal, arbitrary, unconstitutional, without jurisdiction and violative of Articles 14, 19 and 21 of the Constitution of India and consequently set aside the said seizure.
2. Heard Sri P.Shashi Kiran, learned counsel for the petitioner, learned Assistant Government Pleader for Home appearing for respondent Nos.1 to 3, learned Government Pleader for Civil Supplies appearing for respondent No.4, Sri Dominic Fernandez, learned Standing Counsel for Indian Oil Corporation Limited, for respondent Nos.5 to 7 and perused the record.
3. Learned counsel for the petitioner would submit that vide appointment letter, dated 28.02.2017, the petitioner was offered dealership of Petrol (Motor Spirit)/High Speed Diesel Oil Retail outlet in the name and style of 'M/s.Sri Datta Sai Kisan Seva Kendra' at Mootakondur Village and Mandal, Nalgonda District. While so, the police, Nandigama, registered FIR No.195 of 2020 against some persons for using fraudulent weight, possession of false weight and cheating the general public in dispensing fuel in some retail outlets. 2 Basing on the confessional statements made by the accused in that crime, the respondent police formed a SOT (Special Officers Team) for investigating into the irregularities at several petrol pumps across the State. The officials of SOT conducted a surprise check at the petitioner's unit on 05.09.2020 and seized the petitioner's unit alleging certain irregularities, which is illegal and arbitrary. No notice was issued to the petitioner before seizing his unit. The petitioner did not commit any offence as alleged. The seizure is not informed to the concerned jurisdictional Magistrate as required under Section 102(3) of Cr.P.C. Under the guise of seizure, the petitioner cannot be restrained from doing his business for an indefinite period. Due to the said seizure, the petitioner and its employees are put to mental agony besides financial loss and ultimately prayed to allow the writ petition as prayed for.
4. Respondent No.3/Station House Officer, Nandigama Police Station, filed counter. It is contended on behalf of respondent No.3 that a crime in Crime No.195 of 2020 was registered against some dealers of retail units for commission of certain irregularities in petrol pumps. A surprise inspection was conducted by the SOT officials at the petitioner's unit on 05.09.2020 and it was found that the petitioner committed certain irregularities in selling fuel. Investigation is in progress. It cannot be said that the petitioner is 3 innocent of the alleged offences. Further, the seizure has been reported to the concerned jurisdictional Magistrate. Further, the petitioner has an efficacious alternative remedy under Section 451 of Cr.P.C. Disputed questions of fact are involved in this matter, which cannot be adjudicated in this writ petition filed under Article 226 of the Constitution of India. The SOT officials followed the requisite procedure in seizing the petitioner's unit. The petitioner, instead of cooperating with the investigation, filed this writ petition and ultimately prayed to dismiss the writ petition.
5. Respondent Nos.5 to 7/Indian Oil Corporation Limited also filed counter. It is contended on their behalf that the Corporation came to know through news agencies that the SOT officials conducted a surprise inspection at the petitioner's unit and found suspicious additional fittings to the dispensing units and confiscated the Mother Board (Control Card)/suspicious additional fittings. However, the Corporation did not receive any official communication from the authorities concerned. Though the Corporation addressed a letter, dated 11.01.2021, to the District Collector, no reply has been received yet.
6. I have considered the rival contentions. The main grievance of the petitioner is that since the seizure of his retail petrol/diesel dispensing unit itself is illegal and not in consonance with the 4 procedure envisaged under Code of Criminal Procedure, this writ petition is maintainable and the seizure of his retail outlet is liable to be set aside.
7. The question with regard to the alleged non compliance of requirements under Section 102(3) of Cr.P.C. by the authorities concerned is not a jurisdictional fact/question, but it is purely an adjudicatory fact/question. Section 102(3) of Cr.P.C. mandates that every police officer, who seizes 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, shall forthwith report the seizure to the jurisdictional Magistrate. However, non compliance of Section 102(3) of Cr.P.C. by the authorities concerned may, at the most, amount to irregularity, but would not vitiate the whole seizure.
8. Further, it is apt to extract Section 451 of Cr.P.C., which reads as follows:
451. Order for custody and disposal of property pending trial in certain cases.--When any property is produced before any criminal court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy 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.
Explanation.--For the purposes of this section, "property" includes--
(a) property of any kind or document which is produced before the court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.5
9. Section 451 empowers the criminal Court to pass an order of proper custody of "any property" pending trial or inquiry. The criminal Court can also direct disposal of certain property in certain circumstances. Explanation to Section 451 of Cr.P.C. makes it clear that for the purpose of the said section, "property" includes property of any kind or document, which is produced before the Court or which is in its custody or any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. Section 451 of Cr.P.C. applies during/pending trial or inquiry. The executive authority can only intimate about the seizure of 'any property' to the Court under Section 102 of Cr.P.C., and the jurisdictional Magistrate has the power to grant interim custody of the property so seized, under Section 451 of Cr.P.C.
10. Further, Section 457 of Cr.P.C., reads as follows:
457. Procedure by police upon seizure of property.--(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a criminal court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
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11. Section 457 of Cr.P.C. applies when a property has been seized by any police officer and is reported to a Magistrate under the provisions of the Code, but such property is not produced before a criminal Court during the course of inquiry or trial. The expression "not produced before a criminal Court" used in Section 457 of the Code is significant. Thus, this provision applies to the property seized under Section 102 of the Code, but not produced during the trial or inquiry. In common parlance, the word "produced" is an expression used to signify actual or physical production, which would apply to movable property. Immovable property cannot be "produced" in a Court.
12. In the instant case, a reading of the counter affidavit filed by the respondent No.3 would go to show that disputed questions of fact exist, which cannot be adjudicated in writ jurisdiction. Further, the petitioner has an efficacious alternative remedy under Sections 451 and 457 of Cr.P.C. before the concerned criminal Court, wherein, he can raise all the contentions raised in this writ petition and the said criminal Court will be in a position to analyze the factual aspects.
13. In view of the above discussion, the petitioner is not entitled for the relief sought in this writ petition. It is left open to the petitioner to file an application under Section 451 or Section 457 of Cr.P.C., as the case may be, before the Court concerned seeking 7 appropriate relief, in accordance with the procedure established under law. On filing of such an application, the Court concerned shall dispose of the same, in accordance with law.
14. With the above observations, this writ petition is disposed of.
Miscellaneous petitions, if any, pending in this writ petition, shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J 23rd February, 2022 Bvv