Document Fragment View

Matching Fragments

36. Seizure must be effected in accordance with the procedure laid down therefor. It is also well settled that whenever a seizure is found to be illegal, the property seized should be directed to be returned forthwith. We may refer to the decision in BOARD OF REVENUE, MADRAS V. R.S. JHAVER, , wherein, it was observed:

We have already indicated that the High Court held that the warrant issued by the Magistrate for search of the residential accommodation was bad because it showed that the Magistrate had not applied his mind to the question of issuing it, inasmuch as there were portions which should have been struck out from the printed form and gaps which should have been filed in. But this was not done. That conclusion of the High Court has not been challenged before us. The High Court has further held that a proper and reasonable opportunity was not given to the persons concerned to show that the goods seized were not property accounted for in their account books, though this finding is not material now for we have held that Sub-section (4) falls in its entirety. It follows therefore that anything recovered form the search of the residential accommodation on the basis of this defective warrant must be returned. It also follows that anything confiscated must also be returned, as we have held that Sub-section (4) must fall. As to the accounts etc., said to have been seized, it appears to us that the safeguards provided under Section 165 of the Code of Criminal Procedure do not appear to have been followed when the search was made for the simple reason that everybody thought that that provision was not applicable to a search under Sub-section (2). Therefore, as the safeguards provided in Section 165 of the Code of Criminal Procedure were not followed, anything recovered on a defective search of this kind must be returned.

48. In the context of prayer for quashing charge sheet or F.I.R. as illegal, it is also appropriate to notice the ambit of powers of this Court under Article 226 of the Constitution, to quash criminal cases.

49. The Supreme Court in R.P. KAPUR v. STATE OF PUNJAB, , after referring to some illustrative categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised under Section 561 A of Code of Criminal Procedure, 1898 (now Section 482 Cr.P.C, 1973) laid down:

58. The learned counsel also referred to two judgments delivered by two learned Judges of this Court. In Pothuganti Venkateswarlu v. Circle Inspector, Suryapet in W.P. No. 26983 of 1998 dt. 12.10.1998 a learned Single Judge of this Court quashed F.I.R. after recording a finding that mere possession of jaggery and alum do not constitute any offence under the provisions of the Excise Act. It docs not appear from the judgment that the material seized therein was black jaggery. In yet another judgment, in Crl.P. No. 3137 of 1998 dt. 23.7.1998 learned Single Judge of this Court in exercise of powers under Section 482 Cr.P.C. quashed C.C. No. 1938 of 1997 on the file of Special Judicial Magistral of First Class on the ground that jaggery and alum are not prohibited and cannot be said to be contraband under the Excise Act This case has also no application to the facts on hand because what was seized was not black jaggery and the learned Single Judge was exercising discretion under Section 482 Cr.P.C. where circumstances are altogether different. Furthermore, a Division Bench of this Court in Crl.P. No. 1931 of 1996 and batch dated 10.10.1996 quashed the criminal proceedings only on the ground that the charge sheet did not record any connivance or conspiracy on the part of the accused neither purchasing jaggery or preparation of ID liquor. As already observed by us the Supreme Court in NASU SHEIKH'S case (supra) indicated that if F.I.R. records circumstances and ingredients of offence alleged, the Courts cannot midway interdict in the matter.

59. This brings us to the question of the relief. In W.P. No. 22705 of 2000 the petitioner prayed for a direction to the respondents to release the seized black jaggery to him without furnishing any security. Under Section 452(2) of Cr.P.C., pending trial of criminal offence, the criminal Court is competent to release any property subject to such person executing a bond. Be that as it may, when property is seized in connection with offence involving public health and other allied matters, the High Court should be slow to pass such orders. In DEPUTY COMMISSIONER (PROHIBITION AND EXCISE) v. SHOBALAL, (DB), dealing with a case of release of vehicle involved in excise offence a Division Bench of this Court held: