IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.398 of 2008 SHARWAN AGRAWAL & ANR Versus THE STATE OF BIHAR & ORS ----------- 6. 12.01.2009. Heard learned counsel for the parties. 2. The petitioners prays for quashing of the criminal proceeding arising out of Purnea Sadar Police Station case no. 175 of 2008 dated 2.5.2008 under sections 420, 467, 468, 471, 472, 406, 379, 211 and 20 B of the I.P.C. The petitioner is engaged in business of purchase, sale of spices in the name and style of M/s Laddu Gopal Enterprises, Gulab Bagh, Purnea dealing in Betel Nuts, Dhania, Mangaraila etc. His case is that he purchases these items from Indian Market from Calcutta and Mangalore and sell it in the local market. He submits that spices particularly betel nuts have been seized without following the provisions of the Essential Commodities Act (E.C.Act) and various orders issued thereunder. 3. He alleges that police without any due authority and sanction under section 102 Cr.P.C. raided his premises and seized spices lying in his godown. He further submits that police gave a lame excuse that the items were of theft, though no case under section 379 I.P.C. was filed earlier in respect of the same. On the basis of the aforesaid seizure dated 27.4.2008, a case under sections 379 I.P.C. and 135 of the Customs Act was registered. He submits that it would appear from the seizure list and the FIR contained in annexures 1 and 1A that the spices were lying scattered in the godown. Some of the bags lay open, while some were packed. 4. Learned counsel submits that though the aforesaid seized items were allowed to remain in the premises of petitioner’s godown the same was - 2 - not entrusted to petitioner for its custody. The seizure list would show that seized items were entrusted to supervision or custody of an Executive Magistrate to be nominated. He further submits that the spices were not properly weighed and quantified rather the figures shown in the seizure list was on the basis of vague estimation. The petitioner submits that misery did not stop there. The police in course of supervision again came to his godown and alleged that he has removed certain bags of spices and as such filed another case on 2/5/2008 under sections 420,467,406,120B I.P.C. being Purnea Sadar Police Station case no 175 of 2008. Learned counsel assails the institution of this subsequent FIR and the consequent prosecution on the following grounds:- 5. The points raised by petitioner can be summarized as follows. There was no entrustment of the items seized vide annexure 1 to the petition. Secondly, the seized items were not weighed nor any specification mentioned. Thirdly, that instant case dated 2.5.2008 is fallout of first case, namely, Purnea Sadar Police Station case no. 166 of 2008 under sections 414 I.P.C. and 135 of the Customs Act, 1962. In support of his contention, learned counsel relied upon decisions rendered in case of Madan Pd Choudhary versus the State of Bihar, reported in 1984 PLJR 888, Nathmal Kabra and other Vs. The State of Bihar, reported in 1990 BBCJ 235 and Swarup Chand versus the State of Bihar, reported in 1995(1) PLJR 390. 6. Learned counsel for the State on the other hand stated that seizure list was prepared for 1446 bags. However, in course of supervision when the premises were searched many bags were missing. He submitted that since there was information that suspicious and contraband articles of foreign - 3 - origin were unloaded in godown, the police exercised the power under section 102 Cr.P.C. along with Executive Magistrate deputed for the purpose. He further submitted that the case is at the stags of investigation and the Apex court in case of State of Karnataka and another vs. Pastor P. Raju, reported in 2006(3) SCC (Cri) 179 as well as in case of A Geetha vs. State of Tamil Nadu and another, reported in 2006(3) SCC (Cri) 324 has observed that the courts should be circumspective while quashing prosecution at the stage of investigation. The instant case is for quashing of subsequent FIR, namely, Sadar Police Station case no. 175 of 2008 dated 2.5.2008 lodged under sections 420,467,468,406,379,201,120B I.P.C. The allegation leveled in the earlier case, namely, Sadar Police Station case no. 166 of 2008 registered under sections 414 I.P.C. and 135 of the Customs Act is not under scrutiny in this case. The allegation in the instant case i.e. Sadar Police Station case no. 175 of 2008 is that a number of bags of spices seized in the first case were subsequently removed from the godown. 7. The petitioner pleads innocence and seeks exemption from prosecution on the ground that the goods were not given to him Zimanamma rather the same was to be entrusted to the executive officer to be duly nominated. On the aforesaid plea, the prosecution cannot be quashed at the threshold, as the premises from where the goods have been removed, belonged to the petitioner himself. The other plea that the goods were not weighed in the scientific manner and as such the pilferage or the diverging of the goods seized cannot be quantified, is itself the subject of investigation. Pleas raised by petitioner are essentially the matter for investigation. The case - 4 - relied upon by the petitioner would not be applicable at this stage, as the same related to evidence appearing post submission of charge sheet and taking of cognizance. 8. In the facts and circumstances of the case, it will be open to the petitioner to put forth his point before the investigating agency through representation which would be duly considered by them before submitting final report. It will be open to the petitioner to pursue remedy available under law, if he is aggrieved by subsequent cause of action. 9. With the aforesaid observations, the interim protection granted to the petitioner vide order dated 19.05.2008, that no coercive step shall be taken against the petitioner in Purnea Sadar Police Station case no. 175 of 2008 is extended for further three weeks to enable him to put forth his points before the investigating agency. 10. It is expected that the investigating agency would conclude the investigation and submit the final report soon. 11. It is made clear that this Court has not expressed any opinion on the merits of the case. Shashi. (S.P.Singh,J).