IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16594 of 2008 M/s Kisan Tractors, a Proprietary Concern having its place of business at Dewana Industrial Area within Barauni Industrial Estate, P.S.: Barauni Refinery, District- Begusarai through its Proprietor, Ram Naresh Singh, S/o- Late Nirsu Singh, resident of Singhaul Pokhar, P.O.: Ulao, P.S.: Singhaul, District- Begusarai. ……….. Petitioner. VERSUS 1. The State of Bihar through District Agriculture Officer, Begusarai. 2. The District Agriculture Officer, Begusarai. 3. The Superintendent of Police, Begusarai. 4. The Officer In-charge, Phulwaria Police Station, Begusarai. 5. Chitranjan Singh, S/o- Rajendra Singh, resident of Vill.: Ramdiri, P.S.: Matihani, District- Begusarai. 6. Sanjay Kumar, S/o- Shri Ram Narayan Kunwar, resident of Kumharso, P.S.: Garpura, District- Begusarai. ……….. Respondents. ----------- Advocate for the Petitioner : Mr. S.D. Sanjay. Mr. Gautam Kejriwal. Advocate for the Respondents: G.A.-6 Mr. Kumar Anil ------------- 03 17.12.2008 This case shows complete lack of application of mind to the facts by the Police, who act on pre conceived notion in flagrant disregard to the rights of the parties. There is much more than what meets the eyes. Counter affidavit and rejoinder have been filed. With consent of parties, the writ application is being disposed of at the stage of admission itself. Petitioner has taken on lease from BISCOMAUN its mixture of fertilizer manufacturing unit. Petitioner is a duly registered manufacturer of NPK mixture of fertilizer under the Fertilizer Control Order, 1985. Fertilizer of different nature and variety are first purchased by the petitioner in open market. They are then brought to the factory premises, where they are physically mixed in various proportions to 2 produce NPK mixture of fertilizer, which are then packed in bags and sold inter alia under brand name Hara Bahar. It appears that the Director of Agriculture, Government of Bihar first restrained such manufacturers of fertilizer from purchasing fertilizer from the open market for manufacturing mixture, this brought to complete stand still the manufacturing activity of such manufacturers including the petitioner. This was challenged before this Court by some of such manufacturers of mixture of fertilizer and this Court held that no such direction could be issued and it was in flagrant violation of the provision of the Fertilizer Control Order. This Court set aside the order of the State Authorities and permitted the manufacturers to purchase fertilizer as its raw material from open market. This apparently did not go well with the authorities and was the beginning of more trouble to come. On 29.10.2008 the local police got active and from the Baruni Railway Junction, inter ali seized a consignment of large number of new printed bags of Hara Bahar fertilizer. The newly printed bags had been consigned from Kolkata to Baruni having been printed there for use at petitioner’s factory. On the very day i.e. on 29.10.2008 seizure list was prepared in respect of the said, but obviously as there was no case registered at all. The seizure list makes no mention of it nor does it disclose the ground of seizure. Later this is used to throw a suspicion about the genuineness of business itself. Then starts the police activities from the next day onwards, even without lodging a formal F.I.R. Ultimately a report was 3 drawn up allegedly on 31.10.2008 and F.I.R. was registered on 01.11.2008 being Phulwaria Police Station Case No. 144 of 2008 under various sections of Indian Penal Code and Section 7 of the Essential Commodities Act. A mere reading of the very lengthy exhaustive F.I.R. shows that it is not merely an F.I.R. but it passes value judgment as well. It is alleged in the F.I.R. that on 29.10.2008 a confidential information was received that petitioner was manufacturing inferior quality of fertilizer and used to import bags printed at Kolkata for the purpose of selling it, which laid to the seizure of new bags at Baruni Railway Station on 29.10.2008. Thereafter, on 30th and 31st October, 2008 police visit the factory premises and find sub standard/inferior quality of fertilizers of various brand being stored and being manufactured for sale without there being proper facility for mixing and weighing etc. It is thus alleged that the factory was being to run manufacture inferior quality of fertilizer. Admittedly, the police officials were not expert nor was anything tested but in a bizard manner sweeping allegations are made in the F.I.R. After having lodged the F.I.R., the police then on various days visit the factory again. In the night of 03.11.2008 when police visit the factory then alleged that the owner of the factory seeing the police rushed away and as such there being no one, the police hands over the factory to the custody of the relation of the owner of the factory on a plain and simple Jimmenama (Annexure-6). They again visit the factory in the afternoon of 05.11.2008 when they find three trucks in the factory premises, which again abandoned and as such they are again handed over to the safe 4 custody of a relation of the owner of the factory (Annexure-6/A). Terrorized by the manner in which police was proceeding the present writ application was filed with a prayer to release the factory and the three trucks. In the counter affidavit filed a sordid picture is sought to be painted about the whole operation of the petitioner and sought of sentencing the petitioner. Everything is said about calendstine business of manufacturing allegedly inferior quality of fertilizer. Even though, admittedly, there is not a chit of paper to substantiate the allegations which at best make out an allegation that there appeared to be allegedly a preparation to attempt to commit some offence. What is most bizard is, in the counter affidavit, it is stated that the factory was never seized nor petitioner prevented from running the factory. It is not disputed that even the trucks were not seized, as would be apparent from the custody paper prepared (Annexure-6/A). It is also alleged that police was not all alone but the Commercial Taxes Department and the Income Tax Department also swooped down at the same time. Though without finally adjudicating about the legality of the actions taken by the police, all that this Court can gather is that the police suspected that some offence was likely to be committed or may have been committed or could have been committed and the police was up to fishing in this matter. I can refer here is the case of Malkiat Singh and Another Vs. The State of Punjab since reported in AIR 1970 Supreme Court 713, the case under Essential Commodities Act, 5 wherein the Apex Court has fairly held that mere preparation for attempt to commit an offence is not an offence. Now the question is, what is the effect of the two Jimmenamas (Annexures 6 and 6/A). The first relates to the factory with contents therein and the second with regard to the three trucks therein, as noticed above in the counter affidavit itself. The police admit that they have not seized the factory premises, thus, the Jimmenamas as per submission stated itself is a mere entrustment of abandoned property to another, but certainly was not a seizure. Thus, in my view, so far as the factory and the three trucks found therein are concerned they are not subject matter seized in the case by the police and the petitioner is entitled to deal with them as if he feels fit and proper without any hindrance from the police. So far as the new bags of fertilizers which were seized from Baruni Railway Station, admittedly, the consignment was coming from Kolkata, it is not unusual to get packing material made and printed elsewhere. I fail to understand how this could be starting point of investigation of a criminal offence and what purpose would it serve by the police retaining the new bags. I, therefore, direct the police to release them at best, one such bag can be retained whatever use the police may deem fit and proper. With the aforesaid observations and directions, the writ application is allowed. Trivedi/ (Navaniti Prasad Singh, J.)