CR.MA/711/1994 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 711 of 1994 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 ? ======================================== JAGDISHCHANDRA H TRIVEDI & OTHERS Versus STATE OF GUJARAT & ANOTHER ======================================== Appearance : M/S TRIVEDI & GUPTA for Applicant(s) : 1 - 4. MR MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MRS SHILPA R SHAH for Respondent(s) : 2, ======================================== CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 30/07/2008 ORAL JUDGMENT 1. By this application under section 482 of the Code of Criminal Procedure, 1973 (the Code), the applicants have prayed to quash and set aside the complaint lodged by the respondent No.2 herein which CR.MA/711/1994 2/8 JUDGMENT came to be registered as a First Information Report vide 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 qua the present applicants. 2. The facts stated briefly are that all the four applicants were discharging duties as Inspectors of Central Excise at the relevant point of time. The Gold Control Act, 1968 (the Act) was in force at the relevant point of time. The dealers and Goldsmiths were required to take out a licence and a certificate as the case may be under the provisions of the Act. The Customs and Central Excise Officers had been declared as Gold Control Officers and as such were empowered to exercise all the powers, and functions of such officers as provided under the Gold Control Act and the Rules framed thereunder. Pursuant to instructions of Shri S.C. Sainani, Superintendent of Central Excise, Junagadh, the applicants went in a team to raid the business premises of one Shri Laxmandas Vishandas Trilokani. During the course of search, seven pieces of gold being 183.500 grams of the value of Rs.30,000/- was found unaccounted and hence, they were seized by the raiding party. 3. The applicants seized the aforesaid pieces of gold and a panchnama was recorded, wherein two panchas, namely Shri Jamanbhai Devjibhai Nandha and Shri Dolaram Trikamdas signed as panchas. The pieces of gold were placed in a plastic bag and packed in a card board box, which was wrapped over by a white paper and tied by a string with a single knot and was sealed with lakh by the seal of Assistant Collector, Central Excise, Junagadh. The said seized article was handed over on the same day to Shri S.C. Sainani. 4. Thereafter, proceedings were undertaken under the Act and by a final order dated 10th January, 1985, the Deputy Collector, Customs and Central Excise, Rajkot passed an order of confiscation with an option to CR.MA/711/1994 3/8 JUDGMENT pay a fine of Rs.3000/- to release the gold and penalty of Rs.500/- was imposed for contravening several provisions of the said Act. Shri Laxmandas exercised the option of redemption of gold. 5. Pursuant to the order dated 10th January, 1985, Shri Laxmandas paid necessary amount on 13th February, 1985 and went to the office of the Superintendent, Junagadh for receiving the delivery of the gold pieces seized on 11th January, 1984. Shri Laxmandas went to Junagadh along with two persons namely Shri Mohandas Rijumal Motwani and Naranji Nagji Vyas. In the presence of Superintendent H.J. Gohel, the seized packet was brought from the locker of the Bank of India, whereupon Shri Laxmandas expressed that from the sound of the packet, it appears that there is only one piece inside, whereas seven pieces of gold had been seized. He, therefore, on the pretext of doubt, asked for open delivery of the seized packet. On opening the seized packet, one brass weight belonging to Shri Laxmandas was found instead of the seven pieces of gold which had been seized at the relevant time. The sealed packet was opened in the presence of the panchas and the panchnama dated 14th February, 1985 was recorded. Pursuant to the aforesaid, Superintendent Shri H.J. Gohel filed a First Information Report against the applicants herein before the Junagadh Police Station on 15th February, 1985 for the offences punishable under sections 409, 420, 120-B and 114 of the Indian Penal Code. After investigation, the police submitted charge sheet before the Chief Judicial Magistrate, Junagadh, wherein the applicants along with Shri Laxmandas Vishandas Trilokani as well as Shri S.C. Sainani were arraigned as accused. The said case was registered as Criminal Case No.1103/87. 6. It is the aforesaid First Information Report as well as the Criminal Case, of which quashment is sought for by the present applicants. CR.MA/711/1994 4/8 JUDGMENT 7. Heard Mr. Abhishek Mehta, learned advocate for Messrs Trivedi and Gupta, learned advocate for the petitioners, Mr. M.R. Mengdey, learned Additional Public Prosecutor for respondent No.1 and Ms. Shilpa Shah, learned advocate for the respondent No.2. 8. At the outset, Mr. Mehta, learned advocate for the applicants has submitted that applicant No.1 Shri J.H. Trivedi and applicant No.4 Shri L.P. Trivedi have expired. In these circumstances, insofar as applicants No.1 and 4 are concerned, the application would abate. 9. Mr. Mehta, learned advocate for the applicants has submitted that under the Rules, while giving delivery of a seized packet, the presence of the Seizing Officers is required to be secured by the Custodian, however, no such procedure has been followed in the present case, causing immense prejudice to the applicants. 10. The learned advocate for the applicants has referred to the events as set out in para 3.27 of the memo of application to submit that the chain of events points out that it was not the applicants but somebody else who was responsible for replacement of the gold pieces by a brass weight. It was submitted that none of the prosecution witnesses have stated that the gold pieces had been replaced by the applicants herein. That the facts on record show that the applicants were out of the picture soon after they handed over the packet and panchnama on 11th January, 1984 to the Superintendent Shri S.C. Sainani. It is the case of the applicants that the seized packet was retained by Shri Sainani from 11th January, 1984 to 22nd February, 1984 in contravention of the Preventive and Intelligence Departmental Manual. According to the applicants, the allegations made in the First Information Report read with some of the statements recorded by the police, taken at their face value, did not disclose the particulars or essential ingredients of the offences which are alleged against the present applicants. It is CR.MA/711/1994 5/8 JUDGMENT submitted that there is nothing on record to point out commission of the alleged offence on the part of the applicants, much less the offence punishable under sections 407 and 420 of the Indian Penal Code. It is argued that a mere look at the First Information Report and statements recorded recorded by the police make it amply clear that the applicants have absolutely no connection with the offence alleged against them and as such the proceedings against them deserves to be quashed. It is urged that prolonged investigation followed by unexplicable delay in the conduct of the trial spreading over almost a decade starting from 15th February, 1985, has made the plight of the applicants very miserable. It is accordingly submitted that in the interest of justice, the First Information Report as well as the proceedings taken pursuant thereto deserve to be quashed. 11. On the other hand, Ms Shilpa Shah, learned advocate for the respondent No.2 has vehemently opposed the petition. It is submitted that the gold pieces in question had been seized by the applicants and had been sealed in the presence of panchas. However, subsequently, upon opening the packet, it was found that the gold pieces were missing and instead a brass weight had been kept in the packet. It was submitted that in the circumstances, it cannot be said that the applicants are not involved in the commission of the offence in question. 12. Mr. M.R. Mengdey, learned Additional Public Prosecutor has supported the stand of the respondent No.2. 13. A perusal of the First Information Report in question shows that after the raid was carried out on the premises of Shri Laxmandas, seven pieces of gold had been seized by the applicants and the same had been sealed in the presence of the panchas as well as the owner Shri Laxmandas. The sealed packet was handed over to the Superintendent for keeping the same in a locker. Therefore, insofar as the applicants CR.MA/711/1994 6/8 JUDGMENT are concerned, it appears that the gold pieces were placed in the packet and sealed and handed over to the Superintendent of Customs. Thereafter, subsequently after the culmination of the proceedings initiated pursuant to the raid on 13th February, 1985, the seized goods were to be returned to said Shri Laxmandas. On returning the box to Shri Laxmandas, he shook the box and suspected that there was only one piece in the box, hence he asked for open delivery of the seized goods. A perusal of the First Information Report shows that the seals on the said box were intact and upon opening the same, it was found that the box contained a brass weight weighing 100 grams. Surprisingly, the brass weight so found also belonged to the said Shri Laxmandas. It is on the basis of the aforesaid facts that the First Information Report came to be lodged against the present applicants. A perusal of the entire First Information Report shows that no specific allegations are made against any of the present applicants. 14. The Directorate of Preventive Operations Customs & Central Excise has issued “Instructions of Disposal of Confiscated Goods' which are meant for departmental use. The said Instructions provide for the procedure for receipt, storage and disposal of seized/detained and confiscated goods. Rule 3 thereof provides for disposal of inventory and sealing of goods. Rule 5 provides for storage of valuables. Rule 8 which provides for return of goods to the owners and is relevant to the facts of the present case, reads as under: “RETURN OF GOODS TO THE OWNER: Whenever seized or detained goods are ordered to be returned to the owner, the Custodian should after satisfying himself that all the moneys due to the Government have been paid by the owner, give delivery of the goods against the owner's endorsement on the duplicate copy of the inventory that the packages have been received by the owner with the seals intacts. In case the owner wishes to have open delivery, the Custodian should comply with the request but the presence of the Seizing or Detaining Officer should also, as far as possible be secured. If the seizing or detaining officer is not CR.MA/711/1994 7/8 JUDGMENT available, the presence of a Gazetted Officer should be secured.” It appears to be an admitted position that the applicants herein were available at the relevant time, when open delivery was sought for by the owner. Hence, in view of the provisions of Rule 8 of the Instructions, open delivery should have been given in the presence of the applicants. However, despite the applicants being available, the said procedure had not been followed, resulting in immense prejudice to the applicants. 15. On a perusal of the First Information Report as well as the record produced before this Court, it appears that no specific allegations have been levelled against any of the applicants. The First Information Report merely states that the applicants had seized the gold pieces in question and had sealed the same in the presence of the panchas as well as the owner and handed over the custody to the Superintendent of Customs. That upon giving open delivery to the owner, it was found that the brass weight had been placed instead of the gold pieces. It is not even the case of the respondents in the First Information Report that it is the applicants who are responsible for placing the brass weight in the box instead of the seven gold pieces. A perusal of the statements recorded by the police under section 161 of the Code as well as panchnama in question, which are placed before this Court shows that there is nothing whatsoever to point out the involvement of the applicants in the offence in question. In these circumstances 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, this Court is of the view that no fruitful purpose would be served by continuing the proceedings against the applicants. 16. In the result, the application succeeds and is accordingly allowed. The First Information Report being Junagadh Police Station, I – C.R. CR.MA/711/1994 8/8 JUDGMENT 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 qua the applicants No.2 and 3. Rule is made absolute accordingly. 17. In view of the fact that during the pendency of this application, the applicants No.1 and 4 have expired, the application stands abated insofar as the said applicants are concerned. (H.N.DEVANI, J.) shekhar/-