IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.10.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.7840 of 2009 N.Rajagopal ... Petitioner Vs. The Inspector of Police C.B.C.I.D.(Organised Crime Unit II) Alandur, Guindy, Chennai 600 016 ... Respondent This Criminal Original Petition has been filed under Section 482 Cr.P.C to direct the respondent police to remove the seal and lock from the petitioner factory premises situated at G31, Industrial Estate, Ambattur, Chennai – 600 058 immediately with regard to Cr.No.1 of 2009 of the file of the respondent. For Petitioner : Mr.K.Sellathurai For Respondent : Mr.I.Paul Nobel Devakumar, Govt. Advocate (Crl.Side) O R D E R The petitioner herein is the proprietor of M/s.Ennor Muds & Chemicals functioning at No.G31, Industrial Estate, Ambattur, Chennai-600 058 manufacturing oil drill well chemicals. He is the father of one Kishore Nagarur, who has been arrayed as the third accused in Cr.No.1 of 2009 on the file of CBCID (Organised Crime Unit-II), Alandur, Guindy, Chennai. 2. The above said case was registered against 1) Thiru.A.Natarajan, a wholesale fertilizer dealer having his business at Pudukottai, 2) Thiru.Nageswaran, owner of Srikanth & Nagesh firm, Chennai, 3) Thiru.Kishore Nagarur (son of the petitioner herein), owner of Sri Chemicals, Anna Nagar, Chennai, 4) Joint Director of Agriculture, Pudukottai and 5) Assistant Director of Agriculture (QC), Pudukottai. Apart from the said five named accused persons, the case has been registered against others also without specifying the number of such persons, for alleged offences punishable under Sections 406 and 420 IPC along with an offence https://hcservices.ecourts.gov.in/hcservices/ punishable under Section 7 r/w Section 3 of the Essential Commodities Act, 1955 r/w Clause 3 of Fertilizer (Movement Control) Order 1973 and Clause 25 of the Fertilizer (Control) Order 1985. The case was originally registered on the file of CBCID, Pudukottai and was later on transferred to the file of CBCID (Organized Crime Unit-II), Alandur, Guindy, Chennai. During the course of investigation, the respondent herein (the present Investigating Officer) conducted rides in the house of the petitioner bearing Door No.98, 'A' Block, 3rd Street, Anna Nagar East, Chennai-600 012 and the office of the above said Kishore Nagarur at No.182/3, Kurinji Colony, Anna Nagar West, Chennai on 08.04.2009. The Investigating Officer also conducted a search in the factory premises of M/s.Ennor Muds and Chemicals at No.G31, Industrial Estate, Ambattur, Chennai on 09.04.2009. One Obula Reddy, Manager of the said factory was arrested on 09.04.2009. He was released on bail on 17.04.2009 by the II Metropolitan Magistrate, Chennai. On the very same day, namely on 17.04.2009, the respondent/Investigating officer sealed the factory premises of the petitioner. As the request of the petitioner to remove the seal was refused by the respondent, the petitioner has come forward with the present petition under Section 482 Cr.P.C for a direction to the respondent to remove the seal. 3. The respondent submitted a counter affidavit on 12.05.2009 contending that the factory was sealed in the presence of the above said Obula Reddy as the said Obula Reddy, arrested by the respondent, had to be produced again before the learned II Metropolitan Magistrate on 17.04.2009 and the machineries used in the crime were heavy and fitted to the ground. Again on 18.06.2009, the respondent filed another counter affidavit containing the very same averments. On 26.06.2009, the respondent filed additional counter affidavit in the form of a written representation stating that the machineries used in the commission of crime identified by Obula Reddy were heavy, large and fitted to the ground and hence could not be moved easily; that the same were to be produced as exhibits in the trial court; that since there was no place either in the court or in the Organized Crime Unit-II of CBCID to keep them in safe custody, the factory premises were locked on 17.04.2009 in the presence of the said Obula Reddy and other witnesses and that the keys were kept in the police custody as per the orders of the learned II Metropolitan Magistrate, Egmore. 4. The point that arises for consideration in this petition is, "whether the petitioner is entitled to an order directing the respondent to remove the seal provided by the respondent to the factory premises of the petitioner at No.G31, Industrial Estate, Ambattur, Chennai-58?." 5. The submissions made by Mr.K.Sellathurai, learned counsel for the petitioner and by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) representing the respondent were https://hcservices.ecourts.gov.in/hcservices/ heard. The petition, affidavit filed in support of the petition, counter affidavit, typed set of papers and the documents produced by the respondent in the form of case diary file were also perused. 6. Huge quantity of Muriate of Potash measuring 3500 Metric Tonnes was imported by one Mr.Natarajan, a wholesale fertilizer dealer of Pudukottai, availing subsidy granted by the Central Government, for agricultural purpose stating that the same was to be used only as fertilizer. The said wholesale fertilizer dealer, according to the prosecution case, sold it to the second accused Mr.Nageswaran, Proprietor of Srikanth & Nagesh Firm. From Srikanth & Nagesh Firm (a wholesale dealer of fertilizers), Mr.Obula Reddy, Manager of the petitioner's factory by name M/s.Ennor Muds & Chemicals purchased 20 Metric Tonnes of Muriate of Potash and used the same for production of Potassium Lignite, which was later on sold for oil drilling purpose. According to the respondent (Investigating Officer), a search conducted in the above said factory on 09.04.2009 revealed the same pursuant to which, the Manager of the factory Mr.Obula Reddy was taken into custody and pursuant to the confessional statement of the said Obula Reddy, the factory premises was sealed in the presence of the said Obula Reddy and other witnesses on 17.04.2009. The said fact was also informed to the learned II Metropolitan Magistrate. 7. It is an admitted fact that the respondent, during the course of investigation in Cr.No.1/2009 pending on the file of CBCID (Organized Crime Unit-II), Alandur, Guindy, Chennai conducted a search in the factory premies of the petitioner bearing the name M/s.Ennor Muds & Chemicals at No.G31, Industrial Estate, Ambattur, Chennai-58 and seized certain documents and arrested one Obula Reddy, the Manager of the said factory. The respondent has not chosen to seize any one of the machineries or materials found in the said factory, to be produced before the Magistrate as a material object, under any Seizure Mahazar. On the other hand, he was content with taking the factory Manager Obula Reddy into custody and getting him remanded in the above said case. As per the contention of the respondent, the said Obula Reddy gave a confession statement on 10.04.2009 which revealed the use of the machineries found in the said factory for the illegal purpose of converting the Muriate of Potash as Potassium Lignite. However, the respondent did not act immediately to seize the machineries. On the other hand, he waited till 17.04.2009 and chose to lock and seal the factory premises on 17.04.2009. 8. The learned counsel for the petitioner submitted that the Investigating Officer, in order to harass the petitioner and cripple the business of the petitioner, chose to lock the factory premises and seal it on the day when the factory Manager was released on bail. It is not in dispute that the above said Obula Reddy, Manager of the factory owned by the petitioner, was released on bail by the II Metropolitan Magistrate on 17.04.2009. Though the said Obula Reddy is said to have given a confession statement https://hcservices.ecourts.gov.in/hcservices/ on 10.04.2009 itself, the respondent locked and sealed the factory premises only on 17.04.2009. The respondent is not in a position to give any explanation as to why he waited till 17.04.2009, the date on which the factory Manager was released on bail. Therefore, this court has to accept the contention of the learned counsel for the petitioner that the respondent, who is exepcted to conduct an impartial investigation, has involved in taking vindictive measures by locking and sealing the factory premises, perhaps after the factory Manager was released on bail. 9. It is not in dispute that the factory premises of the petitioner was locked and sealed by the respondent (Investigating Officer) on 17.04.2009 and till date it remains in the same condition. The only contention raised by the respondent to justify his act of locking and sealing the factory premises and thereby depriving a number of workers employed therein of their livelihood, is that the factory premises and the machineries were used by the petitioner for converting Muriate of Potash imported for agricultural purposes on subsidy into Potassium Lignite for commercial purpose and hence the machineries are liable to be seized and produced before the trial court as material objects. In this case, the respondent, in his counter has stated that the machineries were to be produced before the trial court as records. It shows the ignorance of the Investigating Officer as to the fact that the machineries have to be produced only as material objects and not as records. From the contents of the counter affidavit, this court is able to infer that the gist of the contention raised by the respondent is that the machineries found in the factory premises of the petitioner are liable to be seized and produced before the trial court as the means used for the commission of the offences for which the case has been registered. 10. Section 451 of Cr.P.C deals with an order for custody and disposal of property pending trial when such property is produced before a criminal court during any inquiry or trial. Section 452 of Cr.P.C deals with the disposal of the property at the conclusion of trial. Section 457 of Cr.P.C alone deals with an order for the custody of the property seized by the police but not produced before a criminal court during inquiry or trial. 11. In this case, since the property was not seized and produced before the court, the petitioner is deprived of his right to move an application under Section 451 Cr.P.C. for interim custody of the same. It is also not the case of the prosecution that the machineries were seized by preparing a Seizure Mahazar and kept in the factory premises for safe custody. On the other hand, admittedly no seizure mahazar was prepared by the respondent (Investigating Officer) so far. The list of machineries, which are sought to be seized for production before the court has not yet been prepared. On the other hand, the respondent seems to have locked the factory premises and put a seal to it stating that the machineries available therein were to be produced before the trial https://hcservices.ecourts.gov.in/hcservices/ court as material objects used for the commission of offences. Till date, no document has been produced to show that the factory was locked and sealed on the orders of the Metropolitan Magistrate concerned. It is pertinent to note that the respondent initially took a stand that the keys of the factory, after locking it and sealing it, were produced before the learned II Metropolitan Magistrate. When the petitioner approached learned II Metropolitan Magistrate, he was informed that the keys of the premises were not produced in the said court. Pursuant to the said development alone, the respondent has chosen to take a different stand to the effect that the keys of the factory are kept in the custody of the respondent with the permission of the court. But, so far the respondent is not in a position to produce even a scrap of paper to show that any such order granting such permission was passed by the learned II Metropolitan Magistrate, Egmore, Chennai. 12. The procedure adopted by the respondent (Investigating Officer) in this case is not in accordance with the provisions of the Criminal Procedure Code. It is also not a reasonable one. If at all the scene of occurrence is to be protected to ensure that the evidence of the crime does not disappear, the Investigating Officer, after locking and sealing the scene of crime shall take only minimum time to open it and make an inventory. He cannot keep the premises locked for a longer period than what is absolutely necessary and thereby violate the rights of the owner or occupier of the premises unreasonably. If at all the respondent was of the view that the machineries found in the factory were the materials used for the commission of the offences alleged and hence the same were to be seized and produced before the court, he should have done it either immediately or within a reasonable time. If the machineries were so heavy and fixed to the ground, which will make it impossible to remove them to be produced physically before the court, then he should have at least made a record of seizure of those machineries and produced such Seizure Mahazar before the court so that the court could have decided as to what should be done pending investigation or pending trial of the case. In other words, such a procedure would have enabled the jurisdictional court to pass an order for the interim custody of the machineries. Without doing so, the respondent/Investigating Officer has simply chosen to keep the premises locked for more than five months, thereby depriving the petitioner of his business and the employees of their livelihood. 13. The petitioner has stated in his petition that as many as 60 workers are employed and they are left with no employment because of the act on the part of the respondent in locking and sealing the factory premises. For the said allegation, the respondent has come forward with a novel answer that the number of workers employed in the factory has been exaggerated in the affidavit of the petitioner and that according to him, there are only 25 workers employed in the factory. Even assuming that only 25 workers are employed in the factory, the families of 25 workers https://hcservices.ecourts.gov.in/hcservices/ have been made to starve because of the deprival of their livelihood. Above all, the production of the machineries before the court shall not improve the case of the prosecution. It shall not be absolutely necessary for the proof of the charges against the accused. It is not the case of the respondent/Investigating Officer that the machineries have to be scientifically examined by a forensic expert to find out whether the imported Muriate of Potash could have been used for production of Potassium Lignite. When that is not the case, the act of the respondent in locking the premises and putting a seal to it shall only satisfy the ego of the respondent/Investigating Officer to prevent the petitioner from doing his business. Even in an extreme case wherein such material shall be liable to be confiscated on proof of the commission of the offence, it shall not be prudent or justifiable to keep such machineries idle and thereby allow them to rust and get diminished in their utility value. 14. In Sunderbhai Ambalal Desai vs. State of Gujarat with C.M.Mudaliar vs. State of Gujarat reported in (2002) 10 SCC 283, clear guidelines have been issued by the Hon'ble Supreme Court that in all cases of seizure of jewels, machineries, vehicles etc., the interim custody of the same should be entrusted to the person entitled to it and that the production of panchanama containing their description before the court alone shall be sufficient. When such is the emphatic pronouncement of the Supreme Court regarding the custody of valuables, machineries and vehicles seized, the police officer conducting the investigation cannot be allowed to dilute the said direction by simply keeping the premises locked and sealed without preparing a seizure mahazar and submitting the same to the court. 15. If all these aspects are taken into consideration, the act on the part of the respondent/Investigating Officer can be viewed as one calculated to cause loss to the petitioner and to satisfy the respondent's sadistic pleasure. 16. In this case, the named accused persons have been granted anticipatory bail by this court. The petitioner is the father of the person who has been arrayed as the third accused. It is the case of the prosecution that 3500 Metric Tonnes of Muriate of Potash imported on subsidy for agricultural purpose was used for non-agricultural prupose, namely for the production of chemicals for non-agricultural purposes. The first accused was the wholesale dealer, who imported the commodity. He sold it to another wholesale dealer, namely the second accused. From the second accused, the third accused Kishore Nagarar (son of the petitioner herein) purchased the said fertilizer. According to the third accused, he did not use any portion of the fertilizer purchased from the second accused for any purpose other than agriculture and the entire consignment of fertilizer was used in the agricultural lands cultivated by him in the State of Andhra Pradesh. According to him, he used the fertilizer in an extent of 2500 hectares of https://hcservices.ecourts.gov.in/hcservices/ land belonging to him and his relatives. However, it was pointed out by the learned Government Advocate (Crl.Side) that the fertilizer was imported under a scheme for being used in Tamil Nadu alone and that the transport of the same to a place outside Tamil Nadu would be in violation of the rules governing the scheme, under which it was permitted to be imported. When such is the contention of the third accused, the locking and sealing of the factory premises of the petitioner herein, who is the father of the third accused, which will be more a punitive measure, shall not be justified. 17. For all the reasons stated above, this court comes to the conclusion that the prayer made in the petition seeking a direction to the respondent/Investigating officer to remove the seal and hand over the keys of the factory premises of the petitioner has got to be granted. 18. In the result, this petition is allowed and the respondent herein is directed to remove the seal, open the factory premises at No.G31, Industrial Estate, Ambattur, Chennai-58 and hand over the keys to the petitioner. At the time of handing over the keys, the respondent shall be at liberty to make an inventory of the machineries available in the factory, prepare a list and get the signature of the petitioner in such a list. The direction shall be complied with on production of a copy of this order within a week's time thereafter. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar asr/ To 1.The Inspector of Police C.B.C.I.D.(Organised Crime Unit II) Alandur, Guindy, Chennai 600 016 2.The Public Prosecutor High Court Madras-600 104 + One cc to Mr.K.Sellathurai, Advocate, SR 50748 ORDER in Crl.O.P.No.7840/2009 PUR (CO) RH (6.10.09) https://hcservices.ecourts.gov.in/hcservices/