CR.MA/2304/1995 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2304 of 1995 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ====================================== == 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== == SANTOSH C SAINANI Versus STATE OF GUJARAT & ANOTHER ====================================== == Appearance : MR RD DAVE for the Applicant MR MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent No.1 MR HARIN P RAVAL for Respondent(s) : 2, MRS SHILPA R SHAH for Respondent(s) : 2, ====================================== == CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 30/07/2008 CR.MA/2304/1995 2/8 JUDGMENT ORAL JUDGMENT 1. By this application under section 482 of the Code of Criminal Procedure, 1973 (the Code), the applicant has prayed to quash the First Information Report being Junagadh Police Station, I-C.R. No. 48/85 as well as further proceedings of Criminal Case No.1103/87 pending in the Court of the learned Chief Judicial Magistrate, Junagadh in respect of the present applicant. 2. The facts of the present case are more or less similar to the facts of Criminal Miscellaneous Application No.711/94, which has been disposed of by an order of even date today. The facts of the said case have been elaborately set out in the said order. Hence, the same are not repeated herein. Insofar as the present applicant is concerned, he comes into the picture at the stage when the applicants of Criminal Miscellaneous Application No.711/94 make an exit. Insofar as the present applicant is concerned, the raid on the premises of Shri Laxmandas Vishandas Trilokani had been conducted under the instructions of the present applicant and the sealed packet containing the seized goods had been handed over to him. 3. According to the applicant who was working as Superintendent of Central Excise (Prevention) Branch at Junagadh at the relevant time, on 11th January, 1984 in the evening, the seized goods were brought to Junagadh and the sealed box was handed over to Cashier M.N. Solanki working in the, office of Assistant Collector of Customs and Excise at Junagadh who kept it in the shelf meant for storing valuables. CR.MA/2304/1995 3/8 JUDGMENT The applicant was originally not named as an accused in the First Information Report but subsequently, at the time of filing the charge sheet, the applicant has been arraigned as the accused No.6 in the charge sheet. It is in the background of the aforesaid facts that the applicant has preferred the present application seeking to quash the proceedings insofar as he is concerned. 4. Heard Mr. R.D. Dave, learned advocate for the applicant, Mr. M.R. Mengdey, learned Additional Public Prosecutor for respondent No.1 and Ms. Shilpa R. Shah, learned Additional Standing Counsel for the Central Government on behalf of the respondent No.2. 5. Mr. R.D. Dave, learned advocate for the applicant has submitted that except for giving the orders for conducting the raid to the Inspectors, the applicant was not involved in the present case, because the remaining procedural aspects are required to be followed by the Assessing Officer and the Custodian as per the instructions given by the Board of the Central Excise and Customs. 6. It is further pointed out that the raid was carried out on 11th January, 1984 and the seizure was affected through Shri J.H. Trivedi, Inspector and three other Inspectors, who came back to the office of the Assistant Collector of Customs with the packet of seized goods and handed it over to the Cashier on the same day to keep the same in the Government Treasury (Safe), who is also a “Custodian” within the meaning of the instructions/ guidelines of the Board. The statement of the Cashier recorded during the course of investigation reveals CR.MA/2304/1995 4/8 JUDGMENT that on receipt of packet of seized goods, he passed a receipt to the Inspector Shri J.H. Trivedi. Thereafter, Shri J.H. Trivedi had taken delivery of the said packet of seized goods from the Cashier by giving back the receipt so as to keep the said packet in the locker of the bank and the Cashier thereafter, destroyed the receipt. It is pointed out that the locker in the Bank was operated by the Range Superintendent of Central Excise, who is also the Custodian within the meaning of the instructions/guidelines of the Board. Thus, during the course of the entire transaction, the applicant does not come into the picture at any point of time. It is submitted that when the applicant has not handled the packet in question at any point of time, it is amply clear that he is in no manner involved with the offence in question. It is submitted that there is no material on record which connects the applicant with the offence in question, hence, the impugned complaint as well as the criminal proceedings are required to be quashed and set aside. 7. On the other hand, Ms Shilpa R. Shah, learned Additional Central Government Standing Counsel has submitted that the entire procedure had been followed in accordance with the instructions issued by the Board and the seized goods had been sealed in a packet and had been duly handed over to the applicant. It was submitted that it was the applicant who had retained the packet in question from 11th January, 1984 to 22nd February, 1984 in contravention of the provisions of Preventive and Intelligence Departmental Manual and accordingly, it cannot be said that the applicant is not involved in the offence in question. Pointing out the discrepancies in the panchnama made at the time when the goods were seized and the panchnama made at the time when open delivery was given to CR.MA/2304/1995 5/8 JUDGMENT said Shri Laxmandas, it was submitted that in these circumstances, the applicant who had retained the seized packet for a period of more than one month, is certainly the person who could have tampered with the packet in question. It was submitted that it was only during that period, that the packet in question could have been tampered with, hence, the say of the applicant that he had not handled the packet in question at any point of time cannot be accepted and no intervention is warranted at the hands of this Court. 8. Mr. M.R. Mengdey, learned Additional Public Prosecutor has adopted the submissions made by the learned Additional Central Government Standing Counsel. 9. As can be seen from the First Information Report in question, the applicant herein was not arraigned as an accused in the First Information Report. Subsequently, it appears that during the course of investigation, the applicant's name has been revealed and accordingly he has been arraigned as accused No.6 in the charge sheet. A perusal of the charge sheet shows that no specific allegations have been made against the applicant and there are general allegations to the effect that the accused have conspired to commit the offence punishable under sections 409, 420 and 120-B Indian Penal Code. The learned advocate for the applicant had referred to the statements of witnesses as well as the panchnamas drawn by the Department. Referring to the First Information Report, it had been pointed out that it is stated therein that on 22nd February, 1984, the applicant had handed over the sealed packet to Shri S.N. Chudasama, Superintendent of Central Excise, Regional Office, Junagadh and the same had been kept CR.MA/2304/1995 6/8 JUDGMENT by him in the Bank of India's locker on the very same day. It is further recorded in the First Information Report that when the sealed packet was handed over to Shri Laxmandas, the seal on the box bore the signature of Shri J.H. Trivedi, the panchas at the relevant time as well as of Shri Laxmandas. The box was not torn at any place. The seals were intact. The panchnama dated 14.2.1985 made at the time of returning the seized goods clearly shows that all the signatures and seals are intact. That upon perusal of the packet and the seals there was no reason to suspect that the same had been opened. The packet was in a totally sealed condition. In the circumstances, it is not possible to state as to how the muddamal came to be changed from the gold pieces to the brass weight. Considering the fact that the brass weight belonged to Shri Laxmandas, it is he who should have been able to explain as to under what circumstances, a brass weight belonging to him had found its way into the sealed packet. However, insofar as the applicant is concerned, there is nothing to link him with the offence in question. Besides, it appears that when the packet was handed over to the Range Superintendent on 22.2.84 he did not find any difference in the description in the inventory and the physical condition of the packet before keeping it in his custody/in the locker of the bank. It also appears that except the Range Superintendent, no other officer was authorised to operate the bank locker. One glaring omission in the proceedings is that at the time of giving open delivery of the seized goods, the Custodian did not follow the provisions of the Manual and more particularly clause 8 of the “Procedure for Receipt, Storage and Disposal of Seized/ Detained and Confiscated Goods”, which provides that while giving open delivery the presence of the Seizing or Detaining Officer should CR.MA/2304/1995 7/8 JUDGMENT be secured. In the present case, despite the fact that some of the Seizing Officers were available, their presence was not secured. Not only that, no other Gazetted Officer was requested to remain present at the time of giving open delivery. Considering the fact that at the time when the seized goods were being returned to him, Shri Laxmandas had expressed suspicion that there was only one piece in the packet and had therefore, asked for open delivery, the Custodian ought to have strictly adhered the provisions of the Manual, more particularly as it was apparent that something was amiss. 10. It is the specific case of the applicant as stated on oath in the application that the Seizing Officer, Mr. Trivedi had handed over the packet to the Cashier on the day of the seizure, that is on 11.1.84 and that the Cashier is the Custodian within the meaning of Clause 5 of the “Procedure for receipt, storage and disposal of seized/detained and confiscated goods.” It is also averred that special treasury/safe is kept in the office of the Assistant Customs Collector, Junagadh to store Government cash and valuables, which can be operated only by the Administrative Officer and the Cashier jointly by applying their keys simultaneously, which are in their custody. The Cashier in his statement has stated that the packet was handed over to him on 11.1.84 in the evening by the applicant in the presence of another officer and that from 11.1.84 after he took custody of the packet, no officer had asked for the same till 22.2.84. That the applicant was neither responsible nor liable to maintain the seized goods in safe and proper condition. However, the said averments have not been controverted by the respondents. CR.MA/2304/1995 8/8 JUDGMENT 11. From the facts noted hereinabove, it is apparent that the provisions of the Manual, which provide for ample safeguards, have not been followed in the present case. In the circumstances, it would not be possible to pinpoint the exact stage at which the goods have been exchanged so as to saddle the liability on the applicant. It is also an admitted position that such negligence in following the provisions of the Manual is not on the part of the applicant. On an overall view of the matter, in the opinion of the Court looking to the nature of the offence alleged against the applicant and more particularly, in view of the fact that the first information report has been lodged on 15th February, 1985 and more than 20 years have elapsed thereafter, no fruitful purpose would be served by permitting the proceedings to continue qua the applicant. Besides, in view of the above discussion, the chances of an ultimately conviction are also bleak. 12. In the result, the application succeeds and is accordingly allowed. The First Information Report being Junagadh Police Station, I – C.R. No.48/85 as well as Criminal Case No.1103/87 pending in the Court of the learned Chief Judicial Magistrate, First Class, Junagadh, are hereby quashed. Rule is made absolute accordingly. (HARSHA DEVANI, J.) shekhar/-