IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.W.J.C. No.261 of 2011 Shamsher Alam, son of Md. Alim, resident of Farsara, Ward No.9, P.S. Karamdighhi, District Dalkola, West Bengal. ---Petitioner Versus 1. The State of Bihar, through the Superintendent of Police, District, Purnia, Bihar. 2. The Officer Incharge, P.S. Jalalgarh, District Purnia, Bihar. ---Respondents ----------- For the Petitioner : Mr. Prabhat Ranjan no.1, Advocate For the S t a t e : Mr. Girija Shankar Prasad, Government Pleader No.1 with Mr Prashant Kumar, A.C. to G.P. 1. ------------ 3. 23.6.2011 Heard learned counsel for the petitioner and the State. The prayer of the petitioner is for quashing the First Information Report vide Jalalgarh Police Station Case No.16 of 2010 registered on 26.3.2010 for the alleged offences under sections 413, 414/34 of the Penal Code and section 135 of the Customs Act, upon seizure of 496 Kgs. of betel nuts contained in 62 bags, pending in the court of the Special Judge, Economic Offences, Purnia. The further prayer is for directing the respondents to pay the cost for initiation of the aforesaid police case registered on the basis of inadmissible statement and also for restitution of the injury and pecuniary loss. Pending disposal of the writ application, the petitioner prays for release of the aforesaid betel nuts. A counter affidavit as also a supplementary counter affidavit has been filed on behalf of the State opposing the prayer of - 2 - the petitioner. Learned counsel appearing for the petitioner submits that the petitioner is the owner of the betel nuts in question and he, being the owner and consignor of the betel nuts, has no grievance against the Driver, Khalasi and the consignee of the goods. It is further submitted that the petitioner has not lodged any case of theft. As such in absence of any case registered for the theft, the case under section 413 or 414 of the Penal Code could not have been registered. Accordingly, the prayer is that since the petitioner is the owner, he is entitled to get back the seized betel nuts notwithstanding the pendency of the aforementioned criminal case. Learned counsel appearing on behalf of the State, on the other hand, submits that the police after investigation of the said case have submitted chargesheet for the offences under sections 413, 414/34 of the Penal Code and section 135 of the Customs Act. It is further submitted that as to whether the betel nut in question is a stolen property or not is the matter to be considered by the court below. It is also submitted that at the time of the seizure, no document with respect to the betel nuts was produced on being demanded by the police and as such, the seized items cannot be released to the petitioner. Before considering the rival submissions of the parties, it will be fruitful to quote sections 413 and 414 of the Penal Code : “413. Habitually dealing in stolen property.—Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished - 3 - with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 414. Assisting in concealment of stolen property.—Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” On perusal of the aforesaid provisions of law, it would appear that the paramount consideration is as to whether the seized item is a stolen property or not. Constituting the offence will depend on the finding arrived at on the basis of the evidence as to whether the seized item is a stolen property or not. This finding of facts has to be arrived at by the court below on the basis of the evidence and not in a Writ proceeding. A reference in this connection may be made to a decision of this Court in the case of Bishan Prasad v. State of Bihar, reported in 1968 Cri.L.J. 1670 as also in the case of Radha Poddar v. State of Bihar, reported in 1996(2) BLJ 310. I am unable to accept the submissions made on behalf of the petitioner that in absence of any case registered for the offence under section 379 of the Penal Code, the offence under sections 413 and 414 cannot stand. In my opinion, committing of theft is one thing and lodging a case by the person aggrieved is another thing and, as such, as claimed by the petitioner that no case has been - 4 - lodged by him for the theft, the offences under sections 413 and 414 of the Penal Code for which the case has been registered cannot sustain, is not acceptable in law. However, notwithstanding the pendency of the case, keeping the betel nuts in question under seizure for a long time may not be justified and no useful purpose will be served. In the above circumstances, in case the petitioner makes an application within a period of three weeks along with the certified copy of this order in the court of the Special Judge, Economic Offences, Purnia for release of the seized betel nuts in question in connection Jalalgarh Police Station Case No.16 of 2010, the same be considered in accordance with law expeditiously, preferably within a period of four weeks thereafter and on being prima facie satisfied with the claim of the petitioner with respect to the ownership over the betel nuts in question and also on furnishing adequate security, the seized articles be released in favour of petitioner, subject to the final outcome of the aforesaid Jalalgarh Police Station Case No.16 of 2010. The writ application stands disposed of with the above observations/directions. Let this order be communicated to the court of the Special Judge, Economic Offences, Purnia, in connection with Jalagarh Police Station Case No.16 of 2010 through fax on the cost being deposited by the petitioner. PNM (Shailesh Kumar Sinha, J.)