Karnataka High Court
M/S Attica Gold Pvt Ltd vs The State Of Karnataka on 13 October, 2023
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NC: 2023:KHC:37590
WP No. 33184 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 33184 OF 2017 (GM-RES)
BETWEEN:
M/S ATTICA GOLD PVT. LTD.
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 2013
HAVING ITS REGISTERED OFFICE AT
11/4, SUVARNA BHAVAN,
QUEENS ROAD,
BANGALORE - 560052
REPRESENTED BY ITS DIRECTOR
MRS. URMILA SATYANARAYAN,
W/O MR. S.S. SRINIVAS
AGED ABOUT 42 YEARS
...PETITIONER
(BY SRI. HARISH V.S., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
Digitally SECRETARY TO GOVERNMENT
signed by HOME DEPARTMENT,
SUMA (LAW AND ORDER)
Location: VIDHANA SOUDHA,
HIGH
COURT OF DR. B.R. AMBEDKAR VEEDHI
KARNATAKA BANGALORE-560001.
2. THE DIRECTOR GENERAL AND
INSPECTOR GENERAL OF POLICE,
KARNATAKA STATE,
NRUPATHUNGA ROAD,
BANGALORE-560001.
3. THE COMMISSIONER OF POLICE
BANGALORE CITY,
INFANTRY ROAD,
BENGALURU - 560001
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NC: 2023:KHC:37590
WP No. 33184 of 2017
4. THE DEPUTY COMMISSINER OF POLICE
WEST DIVISION, UPPARPET,
BENGALURU - 560053
5. THE ASSISTANT COMMISSIONER OF POLICE
VIJAYANAGAR SUB-DIVISION,
BASAVESHWARANAGAR POLICE
STATION COMPOUND,
WOC ROAD, 1ST STAGE,
BENGALURU - 560079
6. THE POLICE INSPECTOR
VIJAYANAGAR POLICE STATION,
VIJAYANAGAR,
BENGALURU-560040.
...RESPONDENTS
(BY SRI. RAJAT SUBRAMANYAM, HIGH COURT GOVERNMENT
PLEADER FOR RESPONDENT NOS.1 TO 6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE
CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO DECLARE THE
SEARCH AND SEIZURE CONDUCTED BY 6TH RESPONDENT IN THE
PREMISES OF THE PETITIONER IN CRIME NO. 116/2017 ON
04.07.2017 AT ANNEXURE-P AS ILLEGAL, UNJUST AND ARBITRARY
AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the search and seizure conducted by the respondent No.6 on 04.07.2017 in its premises.
2. A case in Crime No.116/2017 was registered by the respondent No.6 for the offences punishable under Sections -3- NC: 2023:KHC:37590 WP No. 33184 of 2017 380, 454 of IPC. The complainant alleged that gold ornaments were stolen from his house on 03.03.2017. Based on the confession statement of the accused No.1 that he had sold the stolen gold articles to the petitioner - company, the respondent No.6 made a request for issuance of a search warrant. The Trial Court in terms of an order dated 22.06.2017 granted an order of search and seizure to seize the "gold articles" from the shops situated at various places at Bengaluru and Nidhi Gold Company. This warrant was in force till 01.07.2017. When things stood thus, the respondent No.6 issued a notice dated 28.06.2017 under Section 91 of Cr.P.C. calling upon the petitioner to produce the documents relating to the sale of the gold articles by accused No.1. In the meanwhile, the search warrant was renewed on 01.07.2017 which was in force upto 10.07.2017. The respondent No.6 again issued a notice dated 04.07.2017 under Section 91 of Cr.P.C. calling upon the petitioner to produce the documents relating to the sale of gold articles in the name of the accused No.1. The respondent No.6 searched the shop of the petitioner on 04.07.2017 at 3.45 p.m. but did not unearth the stolen gold ornaments. However, the -4- NC: 2023:KHC:37590 WP No. 33184 of 2017 respondent No.6 without a proper search warrant, seized the following articles namely,
1) 4 DVRs and 2 CPUs,
2) Hard Disc,
3) 1 CPU 18 Hard Discs,
4) 13 Hard Discs and one DVR.
3. A mahazar was drawn on the same day recording the seizure of the following articles:-
Server room
1) One CPU of Lenovo Company
2) One CPU of I Ball Company
3) One DVR
4) One DVR
5) One DVR
6) One DVR Cash room
1) One Hard Disc Cyber room
1) One CPU of I Ball Company
2) One Hard Disc
3) One Hard Disc
4) One Hard Disc
5) One Hard Disc
6) One Hard Disc
7) One Hard Disc
8) One Hard Disc
9) One Hard Disc
10) One Hard Disc
11) One Hard Disc
12) One Hard Disc
13) One Hard Disc
14) One Hard Disc -5- NC: 2023:KHC:37590 WP No. 33184 of 2017
15) One Hard Disc
16) One Hard Disc
17) One Hard Disc
18) One Hard Disc
19) One Hard Disc Boss room (M.D.)
1) One Hard Disc
2) One file named Attica International
3) Xerox copies of verification and software documents relating to Attica Gold company Accounts room
1) One Hard Disc
2) One Hard Disc
3) One Hard Disc
4) One Hard Disc
5) One Hard Disc
6) One Hard Disc
7) One Hard Disc
8) One Hard Disc
9) One Hard Disc
10) One Hard Disc
11) One Hard Disc
12) One Hard Disc
13) One Hard Disc
14) One DVR
4. Being aggrieved by such unauthorized search and seizure of the office equipments of the petitioner, this writ petition is filed.
5. The petitioner contends that the respondent No.6 had seized the office equipments without obtaining an -6- NC: 2023:KHC:37590 WP No. 33184 of 2017 appropriate warrant from the Court as provided under Section 93 of Cr.P.C. It is further contended that the respondent No.6 was authorized to search and seize the stolen "gold articles"
from the premises of the petitioner at various places at Bengaluru and nothing else and therefore, the search and seizure of the other equipments by the respondent No.6 was illegal and unauthorized.
6. The learned counsel for the petitioner reiterated the contentions urged in the writ petition and contended that the respondent No.6 after obtaining a search warrant on 22.06.2017, did not inspect the premises of the petitioner. However, on 28.06.2017, the respondent No.6 issued a notice under Section 91 of Cr.P.C. to produce certain documents and even before the documents could be produced, the respondent No.6 obtained a renewed search warrant and thereafter, searched the premises of the petitioner but did not find any stolen gold articles. However, the respondent No.6 seized the entire office equipments throwing the business out of gear. He therefore, contended that the action of the respondent No.6 is wholly illegal, highhanded and the same is liable to be set aside.-7-
NC: 2023:KHC:37590 WP No. 33184 of 2017
7. The learned High Court Government Pleader on the other hand submitted that the respondent No.6 is authorized to conduct a search and seize the stolen articles. He invited the attention of the Court to Section 165 of Cr.P.C. and contended that the police officer is entitled to search any premises. He also invited the attention of the Court to Section 102 of Cr.P.C and contended that the police officer is entitled to seize any property that may be alleged or suspected to have been stolen.
8. I have considered the submissions made by the learned counsel for the petitioner as well as the learned High Court Government Pleader for the respondents.
9. For the sake of easy reference, the procedure for issue of summons and search warrants is contained in Chapter VII of Cr.P.C. Part-B of Chapter VII deals with the procedure for issuance of search warrants. Section 93 of Cr.P.C., which is the relevant provision is extracted below:
"93. When search warrant may be issued (1) (a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-
section (1) of section 92 has been, or might -8- NC: 2023:KHC:37590 WP No. 33184 of 2017 be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or
(b) Where such document or thing is not known to the Court to be the possession of any person, or
(c) Where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code, will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.
(2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.
(3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority."
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10. The properties allegedly stolen are "gold ornaments" and not the ones mentioned in Section 94(2) of Cr.P.C. and therefore, Section 94 of Cr.P.C. is inapplicable. During the course of investigation, a police officer making the investigation may search any place within the limits of the police station of which he is in-charge or attached to, he may do so after recording in writing that the thing needed for investigation cannot be obtained if delayed and thereafter conduct the search himself or record reasons before deputing his subordinate to conduct such search.
11. A perusal of the search warrant issued by the Trial Court dated 22.06.2017 discloses that what was authorized by the trial court was to search for the stolen "gold articles" and nothing else. The respondent No.6 having once issued a notice under Section 91 of Cr.P.C. calling upon the petitioner to produce documents should have awaited the petitioner to do so. However, the respondent No.6 having thereafter getting the search warrant renewed to search for the stolen "gold articles", could not have done anything more than searching the premises of the petitioner for the "gold articles". If the respondent No.6 desired to search and seize the office
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NC: 2023:KHC:37590 WP No. 33184 of 2017 equipment to detect the stolen articles, the respondent No.6 ought to have obtained appropriate search warrant under Section 93 of Cr.P.C. The contention of the learned High Court Government Pleader that the police officer is entitled to search any premises during the course of investigation under Section 165 of Cr.P.C. is wholly misplaced as the respondent No. 6 did not follow the procedure under Section 165 of Cr.P.C. and did not record reasons for the search of the premises and did not even draw up a warrant to search the premises of the petitioner. In that view of the matter, the action of the respondent No.6 in searching the premises of the petitioner and seizing the office equipments is illegal, highhanded and is liable to be deprecated in the strongest terms possible.
12. In that view of the matter, this writ petition is allowed. The entire search proceedings conducted by the respondent No.6 and seizure of the office equipments from the premises of the petitioner is quashed. Consequently, the search proceeding conducted by the respondent No.6 on 04.07.2017 and the seizure of the equipments is also declared to be illegal, unjust and highhanded.
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NC: 2023:KHC:37590 WP No. 33184 of 2017
13. Consequently, the articles seized from the custody of the petitioner shall be released by the Trial Court on an application that may be filed by the petitioner, without imposing any conditions regarding preservation.
Sd/-
JUDGE PMR List No.: 1 Sl No.: 35