Dhirendra Prasad Singh vs State of Bihar and Others

M.Y. Eqbal, J.—In this writ application, the petitioner seeks issuance of an appropriate writ directing the respondents to return forthwith the revolver bearing No. 127712-V-made-in U.S.A. which was seized by the police and in the alternative a prayer has been made for a direction to the respondents for payment of adequate price or compensation in case respondents are unable to return the revolver to the petitioner.

Undisputed facts of the case are that a First Information Report was lodged against the petitioner and others on 14.7.1980 on the basis of which a criminal case was instituted u/s 302/34 of the Indian Penal Code and Section 27 of the Arms Act bearing Darbhanga Sadar P.S. Case No. 28 of 1980. In connection with that case all the arms including aforementioned revolver were seized from his house in village Sinsura by the officer-in-charge of Darbhanga Sadar Police Station. The aforesaid case was ultimately committed to the Court of Sessions being S.T. No. 7 of 1982. The learned Sessions Judge disposed of the case in terms of the judgment dated 25.2.1984 and acquitted the petitioner and others holding that the charge u/s 302/34 of the Indian Penal Code and Section 27 of the Arms Act were not proved against the petitioner and others. Subsequent to the order of acquittal, the petitioner filed an application before the Sessions Court praying for release and delivery of the arms seized. The learned Session Court ordered for release of the arms including revolver to the petitioner as the petitioner was the owner of the revolver and it was seized from his possession. The petitioner''s case is that he has been renewing his licence regularly in respect of all the arms. Pursuant to the order of the learned Session Judge all the arms of the petitioner seized by the police have been delivered to him except the aforesaid revolver. Inspite of the order of the learned Session Court, the revolver was not delivered to the petitioner. The petitioner again on 2.8.1986 made an application before the Chief Judicial Magistrate, Darbhanga for issuing direction to the concerned authorities for returning his revolver and the learned Chief Judicial Magistrate sent a memo to Respondent Nos. 5 and 6 namely. Inspector General of Police, C.I.D., Patna, and the Deputy Inspector General of Police, Criminal Investigation Department, Patna, for return of the resolver to the petitioner without any delay. Copy of the order and memo sent by the Chief Judicial Magistrate have been annexed as Annexures 4, 5 and 6 to this writ petition. It is stated by the petitioner that on 2.9.1986 the then Director, Forensic Science Laboratory (Respondent No. 7) wrote a letter to the Respondent No. 12 for furnishing information so that the revolver be made available for delivery to the petitioner. The Director in his letter stated that the revolver was received In the Laboratory on 26.3.1981. He further stated that when the report along with exhibits were dispatched the revolver could not be found. It is further stated in the writ petition that on 18.10.1986, Respondent No. 7, Director Forensic Science Laboratory, lodged first Information report in Shastrinagar Police Station being Shastri Nagar P.S. Case No. 606 of 1986 u/s 409 I.P.C. alleging therein that the revolver was received in the Ballistic section for examination of which the then Assistant Director was incharge. The report of examination of the arm was sent under the signature of the then Assistant Director, Ballistic section. It further appears that on 29.11.1986 the Chief Judicial Magistrate issued show cause notice to the Deputy Inspector General of Police, Criminal Investigation Department, Patna and the Director of Forensic Science Laboratory for not delivering the revolver to the petitioner. Pursuant to that notice, Director, Forensic Science Laboratory filed show cause, wherein he admitted that the revolver was received in the Laboratory, it was examined also and the report was sent, but unfortunately the same is not being traced out. It further appears that on 27.4.1992, the Director, Forensic Science Laboratory wrote to the Deputy Inspector General of Police, Criminal Investigation Department, Patna stating therein that three persons, namely the then Assistant Director. Ballistic Section, Forensic Science and two technical Officers attached to it are responsible for the loss of the revolver. In the writ application, the petitioner has referred several correspondence made by and between the respondents shifting responsibility from one person to another person but the facts remain that the revolver was not returned to the petitioner.

Two sets of counter affidavits have been filed, one by Respondent No. 12 and another by Respondent Nos. 3, 7 and 10. In the counter affidavit field by Respondent No. 12, the then Technical Officer, Ballistic Govt. of Bihar, it is stated that the revolver was sent for examination and report to the Forensic Science Laboratory. At the relevant time he was continuing in the said department and thereafter he was relieved from Forensic Science Laboratory for joining in the Commission post. In the counter affidavit filed by Respondent Nos. 3, 7 and 10 it is stated that they are not in any way responsible for the loss or missing of the revolver, As a matter of fact, in both the counter affidavits, the answering respondents have tried to show that they are not in any way responsible for the loss or missing of the revolver.

I have heard Mr. Samrendra Pratap Singh, learned Counsel appearing on behalf of the petitioner and Mr. Kishun Chand Kumar Sinha for the respondents.

As noticed above, there is no dispute about the facts that in a criminal case arms belonging to the petitioner were seized and a seizure list was prepared. It is also not disputed that the petitioner and others were ultimately acquitted by the learned Sessions Judge in Session trial and the judgment became final. It is also admitted fact that the Sessions Judge passed an order directing the respondents for the return of the arms seized from the possession of the petitioner but pursuant to the direction the revolver has not been delivered to the petitioner. It is also admitted fact that since 1981 the petitioner has been moving from pillar to post and approached all the authorities for the return of the revolver but the respondents are unable to return the revolver to the petitioner. In the background of the aforementioned facts the only question falls for consideration is whether the respondents are bound under the law to return the revolver to the petitioner or to pay adequate price and compensation for the same.

At the very out set I may mention here that the respondents including the State of Bihar have not come with a case that the State or its Officers had taken due care and caution to protect and preserve the revolver so seized from the house of the petitioner and nor the respondents made out a case that despite due care and cautions the revolver was lost or is missing. As a matter of fact no counter affidavit has been filed on behalf of the State of Bihar. It is well settled that in a criminal case the police always acts under the direct control of the Court and has to take orders from it at every stage of an enquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance. In the case of Smt. Basava Kom Dyamogouda Patil Vs. State of Mysore and Another, , the Apex Court observed:

the object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases.

It is, therefore, clear that if the State or its Officers failed in the discharge of their duty and if because of their laches or negligence the seized property is stolen then the owner of the property is bound to be compensated adequately for the said loss of the property. As stated above there is no averment in the counter affidavit that the revolver which is now missing or stolen away shall be traced out and returned to the petitioner rather the respondents in their counter affidavit have pleaded that they are in no way responsible for the loss of the property. In the writ petition the petitioner has very specifically stated that the price of the revolver would be about Rs. 1,25,000/- and therefore, the petitioner claimed the price of the revolver and also a compensation of Rs. 1,00,000/- for the harassment since 12 years. The respondents in their counter affidavit have not disputed these averments made in the writ petition. Apart from the statements made by the petitioners at present the market value of the U.S.A. made revolver cannot and shall not be less than the price claimed by the petitioner. In these circumstances, therefore, it can be safely held that, the value of the revolver seized from the possession of the petitioner was not less than Rs. 1,25,000/-. As noticed above, no plea has been taken by the respondent-State that the revolver was lost inspite of due care and caution having been taken by it or due to circumstances beyond its control. In my opinion, therefore, the petitioner is entitled to receive atleast the price of the revolver amounting to Rs. 1,25,000/- which should be paid to the petitioner by the State of Bihar. However, in the circumstances of the case and in the ends of justice it would not be proper to make the State liable to pay compensation, it will be open for the State to make a full-fledged enquiry for fixing the responsibility on the officer for whose negligence or laches the revolver was stolen away and the State may also recover the amount from those officers.

The writ application is accordingly, allowed and mandamus be issued directing the respondent State to pay a sum of Rs. 1,25,000/- to the petitioner within two months from the date of receipt of a copy of this order. The petitioner shall serve a copy of this order to the Chief Secretary, State of Bihar.