Venkatesh Das Mullick vs Kishore Mohan Saha

The Petitioner lodged a first information report before the Police stating that his firm, namely, M/s Santosh Kr. Mullick & Sons (Private) Ltd. had been cheated by using letter-head of the Calcutta University, purported to be issued by the University for placing an order for 7350 kgs. of M.S. iron rods worth of Rs. 10,000 and by giving a cheque, and that they being so deceived delivered 7350 kgs. of M.S. iron rods to a lorry which unloaded the stock at the shop of M/s Gorakh Nath Singh, 23 Deshapran Sashmal Road instead of to the University, and the letter-head and the cheque had later been found to be false. On his complaint a case being No. 103 dated April 23, 1971, under Sections 120B, 420, 467 and 471 of the Indian Penal Code was started. Police took up investigation. In the course of investigation the Police on the statement of the lorry driver searched the shop of M/s Gorakh Nath Singh and seized from there 7350 kgs. of M.S. iron rods and obtaining Magistrate''s order kept those at Tollygunge P.S. compound. The Petitioner applied before'' the Magistrate on April 27,1971, for the custody of the seized goods. The Magistrate obtained a report from the Police and by his order dated May 3,1971, allowed his prayer subject to his furnishing a bond of Rs. 10,000 on usual terms. The Petitioner furnished a bond. The Police delivered the seized goods to him for the custody. On May 10, 1971, the opposite party No. 1, Kishore Mohan Saha, describing himself as the Manager of M/s Gorakh Nath Singh filed a petition before the Magistrate claiming custody of the seized goods. The learned Magistrate again called .for report from the Police. The learned Magistrate by his order dated August 11, 1971, directed the Petitioner to produce the seized goods at the Thana for being kept in custody there pending his investigation as to the claim of the opposite party No. 1. He also directed a notice of the petition of the opposite party No. 1 to be served upon the Petitioner. The Petitioner, therefore, objected to the claim of the opposite party No. 1 by a petition dated August 21, 1971, and did not produce the seized goods as directed. The learned Chief Presidency Magistrate heard the parties on August 28,1971, and fixed September 4, 1971, for orders. On that date he made this order in these terms:

V.D. Mullick is called upon to make over the custody of the seized iron rods to the Police so that these can he handed over to the person, namely, the firm Messrs. Gorakh Nath Singh represented by the Manager, Kishbre Mohan Saha, from whom these were seized. This must be done within seven days from the date of this order, in default, the bond furnished by V.D. Mullick will stand forfeited and he will deposit the entire amount of Rs. 10,000 in Court within a week from date.

The Petitioner has moved this Court against this order of the Magistrate dated September 4, 1971. His petition has given rise to Cr. Rev. Case No. 652 of 1971,

Mr. A.K. Dutta, learned Advocate, with Mr. Biswanath Sanyal, Advocate, appearing for the Petitioner, submitted that the order of the Magistrate directing him to make over the custody of the seized goods to the Police, forfeiting his bond in default and asking him to deposit the entire amount of the bond, is wrong. It appears from the order that the Magistrate has directed the Petitioner to make over the seized iron rods to the Police to enable them to make over the same to the opposite party No. 1. When the opposite party No. 1 applied on May 10, 1971, claiming the seized goods, the Magistrate decided by his order dated August 11, 1971, that he would investigate his claim and directed notice on the Petitioner. He heard the parties on August 28,1971, but in his order dated September 4,1971, he had not made any clear finding that he was satisfied on a consideration of the Police report or of documents produced before him by the parties and/or on hearing them that the opposite party No. 1 was ''entitled to possession'' of these seized iron rods. He does not appear to have considered any document relating to the opposite party No. l''s claim. The. only ground on which he appears to have proceeded was that the seized goods were taken into custody by the Police from the shop of M/s Gorakh Nath Singh of which the opposite party is the Manager and that the Police had not till then made him an accused in the case and that his claim was, therefore, to be granted. The Police did not state that the opposite party No. 1 was not wanted in the case or that there was no case against him. What the Police stated in their report on May 21, 1971, was that--

Kishore Mohan Saha is not wanted as an accused person in the above noted case at this stage. His complicity in the case is still a subject-matter of investigation.

The Police further stated on June 8, 1971,

that enquiries were made regarding the bona fide or otherwise of the Petitioner''s (the opposite party No. 1) claim of the seized goods and books of account as produced by the co-Petitioner Bejoy Singh were scrutinized. The Petitioner could not single out the vouchers or even could not show the relevant entries in the books of account and prove his claim of the seized goods.... In other words, the Petitioner failed to produce relevant papers therefore. Further investigation into the case is in progress.

They reported again on July 29, 1971,

the documents were produced by the Petitioner (Kishore Mohan Saha) on a plea of innocence and also to show his bona fide possession Of the goods. On scrutiny of the documents it is found that the Petitioner''s contention is not correct. He, however, did not produce other documents to prove his claim nor any books of account were found in his shop during search.

On these documents the Magistrate was not justified in concluding that the opposite party No. 1 is not wanted in the case or would not be made an accused in the case, on completion of investigation, at a later stage. The Magistrate did not consider the documents for himself. He did not advert to the Police reports or misread those and thus had made a wrong conclusion. The Magistrate''s order dated September 4, 1971, directing the Petitioner to make over the seized goods to the Police to enable the Police to make over the same to the opposite party No. 1 is wrong and cannot stand. The other part of the Magistrate''s order forfeiting in default the bond and directing deposit of Rs. 10,000 on such forfeiture is also consequently bad. That order shall also be vacated.

Mr. Dutta next contended that the learned Magistrate was wrong in his order as he had made it without hearing the Petitioner and because he was not entitled in law to review, alter or vary his own order dated May 3, 1971, which he made presumably u/s 523 of the Code of Criminal Procedure. His contention is that the order made by the learned Magistrate on May 3, 1971, was an order made u/s 523, Code of Criminal Procedure, that the order was not an interim order and that his order, therefore, could only be altered or revised by his superior Court. The goods were seized by the Police in course of a search during investigation u/s 165, Code of Criminal Procedure. The investigating Police officer reported on November 25, 19.71, the fact of seizure to the jurisdictional Magistrate, here the Additional Chief Presidency Magistrate, with a prayer for giving the Police the custody of the seized goods. The learned Magistrate obviously granted that prayer u/s 523, Code of Criminal Procedure. We may in this connection refer to the decision in the case of Ajoy Raj Singh Vs. Baj Bahadur Singh and Others, where R. N. Dutt J. delivering the judgment of the Bench observed as follows:

We hold that Section 523(1) is attracted with seizure made by the Police u/s 165 of the Code.

u/s 523, Code of Criminal Procedure, the Magistrate can take one of the three courses--(i) He has the discretion to pass any order if he thinks fit for the disposal of the property, (ii) to deliver it to the person entitled to it subject to such condition, if any, that he may impose, or (iii) if there is no such person, pass an order for its custody and production. It was submitted that an order passed u/s 523, Code of Criminal Procedure, is not an interim order and reliance was placed on the case of AIR 1945 Lahore 47 and the case of Muneshwar Bux Singh Vs. State, . These two cases do not apply and are distinguishable on facts from this case. In both these cases the order was final, being one for disposal and was passed after the investigation in course of which the search and seizure were made had ended. Here the investigation is going on and the order is only for the custody and, as such, not final. If a Magistrate makes an order as to custody and production of seized goods and does not make an order for ''disposal or delivery to a person entitled to possession'', he can and should have to make orders about the custody and/ or production of those from time to time during investigation or trial or enquiry till he makes an order for disposal or delivery to person entitled to possession of it. The learned Magistrate in this case by his order No. 2 dated May 3, 1971, directed that the Petitioner may take delivery of the goods (keeping some samples as suggested by the I.O.) on furnishing a bond of Rs. 10,000 with usual terms. This order was made on the basis of the report of the Police to the effect--

we may have no objection in making over the seized goods to the Petitioner after keeping samples on a proper bond with direction to produce the goods before your Honour whenever called for.

The report was for giving the custody to the Petitioner upon a clear ''direction to produce those as and when asked to do so''. The learned Magistrate directed delivery on that report and necessarily directed that the Petitioner should have the custody of the seized goods on condition of producing these before him as and when called for. In these circumstances, there appears to be no bar in the way of the Magistrate considering the petition of the opposite party No. 1 praying for the custody of the seized goods to him. It may be pointed out that the Magistrate on the prayer of the Police after seizure ordered on April 25, 1971, that the Police should have the custody'' of the seized goods. The Magistrate on the prayer of the Petitioner altered his order of April 25, 1971, relating to the custody of the goods and directed that the custody should go from the Police to the Petitioner. If the contention of the Petitioner is sustained, the second order of the Magistrate dated May 3, 1971, directing that the goods should be made over to the Petitioner from the Police custody will also be bad and will have to be set aside. The first objection of the Petitioner that the Magistrate cannot consider the prayer of Kishore Saha, the opposite party No. 1, has been rightly rejected by the learned Magistrate though for reasons different from those of the Magistrate. The learned Magistrate relied on the case of Ramlal Hazarilal v. Hiralal Ramlal and Anr. AIR 1953 M.B. 241 to hold that he can order return of the goods given under his order to the Petitioner. In that case the Police seizing the goods did not produce those before the Magistrate, and did, not obtain his orders but made those over to a party. In those circumstances, it was held in the case that the Magistrate was certainly entitled to require the Police to produce the property and to recall the order of the Police. Here the goods were delivered under the Court''s order. That case has no application as wrongly held by the learned Magistrate.

The Petitioner next submitted that the order dated August 11, 1971, directing him to produce the seized goods at the Thana and the order dated September 4, 1971, for restoring them to Kishore Saha was bad as it was rendered, without giving him a hearing, or behind his back. There is not much force in this. Firstly, the learned Magistrate, as had been pointed out before, had not yet made any clear definite order for restoring the goods to Kishore Saha. Secondly, that order dated September 4, 1971, was made after hearing the Petitioner and considering his written objection filed on August 28, 1971, as recorded in the order of that date. Nextly, the order dated August 11, 1971, was made on the basis of the Police report and was restricted only to production from custody. This objection has also no force.

The Petitioner next submitted that the learned Magistrate not having laid down the terms specifically when giving the custody of the goods to him is not entitled to ask him to produce the goods. This objection has no force. The prayer of the Petitioner made before the Magistrate on April 27, 1971, was

to call for a report from the Officer-in-charge, Cheating Section, Detective Department, Calcutta, and on a perusal of the same to make over the goods seized by the Police to him on a proper bond after keeping some sample of the goods if necessary.

His prayer was for taking a bond from him. The term of the bond was indicated by the Police in his report dated April 28, 1971. The term was that the direction should be given for production of the goods as and when called for. Subject to that direction the Magistrate made the order. The Petitioner took delivery of the goods subject to that condition. This objection is not therefore tenable.

The last submission of the Petitioner was that the Magistrate should have refused the prayer of the opposite party No. 1 on merits as he had failed to prove his entitlement to the possession of the goods either before the Magistrate or before the Police and as the complicity or otherwise of the opposite party was still under investigation by the Police. We do not think it proper to go into this question as the learned Magistrate has not yet considered as to whether the opposite party No. 1 was entitled to possession of the seized goods. It will be for him to consider and decide that. Ordinarily, any property recovered from a person by the Police in course of a search may be handed over to him if he admits that the same has been recovered from him and if it appears that its possession has not been acquired by him in a dishonest or unlawful manner. It appears that the goods were seized from opposite party No. l''s address on the identification of the lorry driver who delivered the goods there and on the identification of the coolies working at that place. The Police are still investigating as to whether or not the seized properties were dishonestly taken possession of by the opposite party or his master M/s. Gorakh Nath Singh and others. The Magistrate will consider this aspect of the matter when he will consider the opposite party''s petition filed before him on May 10, 1971.

Before parting with the case we have to refer to another matter. Mr. A. K. Dutta, the learned Advocate for the Petitioner, in course of his argument drew our attention to certain observations of the learned Magistrate about the conduct of the Police and the Investigating Officer commenting that these are not based on facts and submitted that being so prejudiced, the learned Magistrate led himself into an error. There is force in this contention. Mr. Prasun Chandra Ghosh, the learned Advocate for the State, also submitted that the remarks about the Investigating Officer in the Magistrate''s order dated September 4, 1971, were rather unfortunate and quite unnecessary for disposal of the case. The remarks made about the conduct of the Police and the Investigating Officer in the order dated September 4, 1971, were not at all necessary to dispose of the petition that was before the Magistrate, and the learned Magistrate in making them overlooked the earlier Police reports before him and his own order made on the basis of those reports. In view of the conclusion arrived at already we need not say anything more on this matter.

The learned Magistrate oh receipt of the record shall fix another date for production of the goods by the Petitioner before, the Court or the Thana in compliance with his order dated August 11, 1971. He shall also dispose of the petition of the opposite party No. 1 dated May 11, 1971, in the light of the observations in this judgment and in accordance with law. Investigation by the Police or the trial, in case of a charge-sheet, should not in any way be delayed on account of this. Rule disposed of accordingly.

Ajay K. Basu, J.

I agree.