HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (C) No.1559 of 2018
Nisar Hussain, S/o Shri Sadiq Hussain, aged about 33 years,
Proprietor, Nisar Traders, Maharana Pratap Chjowk, In front of
Ambika Trading, Bilaspur and R/o Main Road, Bhartiya Nagar,Bilaspur, Distt. Bilaspur (C.G.) —- Petitioner
1. State of Chhattisgarh, by a Secretary, Ministry of Home,
Capital Complex, Mahanadi Bhawan, Naya Raipur, District Raipur (C.G.)
2. The Superintendent of Police, District Bilaspur.
3. The Additional Superintendent of Police, District Bilaspur.
4. The Station House Officer, Police Station Chakarbhata, District Bilaspur.—- Respondents
For Petitioner: Mr. B.P. Sharma and Mr. Hari Agrawal, Advocates. For Respondents/State: Mr. Ratan Pusty, Govt. Advocate.
Hon’ble Shri Justice Sanjay K. Agrawal Order On Board 06/07/2018
1. The office of this Court underneath Article 226 of a Constitution of India has been invoked by a postulant herein saying inter alia that a postulant is a throw play using his business in a name and character of Nisar Traders and his emporium situated during Hirri Mines, Parsada, District Bilaspur has been hermetic and hermetic by respondent No.4 though office and though management of law, it might be destined to be unblocked by distribution of suitable command or direction.
2. This Court has destined a State to record confirmation on 5-7-2018 and confirmation has been filed by a State relying on a supplies contained in Section 102 of a Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) saying inter alia that emporium of a postulant has been hermetic for a reason that a properties stored in a emporium in propinquity to that there existed guess of some cognizable corruption carrying been committed in propinquity thereto, could not be conveniently ecstatic to some other place or given of a problems in securing correct accommodation for a control thereof. The postulant has suppressed a fact that he has been served with notice underneath Section 91 of a CrPC.
3. Mr. B.P. Sharma, schooled warn appearing for a petitioner, submits that underneath Section 102 of a CrPC, determined skill can't be hermetic by a Station House Officer in practice of energy underneath Section 102 as such, a sequence of sealing is though office and though management of law.
4. Mr. Ratan Pusty, schooled Government Advocate appearing for a State/respondents, submits that given a skill kept in a emporium in doubt to that there is confinement of carrying been committed cognizable offence, could not be conveniently ecstatic to some other place, therefore, a emporium itself has been seized.
5. we have listened schooled warn for a parties and deliberate their opposition submissions finished herein-above and left by a record with pinnacle circumspection.
6. In oder to conclude a indicate in dispute, Section 102 of a CrPC is extracted herein-below: –
“102. Power of military officer to seize certain property.–(1) Any military officer might seize any skill that might be purported or suspected to have been stolen, or that might be found underneath resources that emanate guess of a elect of any offence.
(2) Such military officer, if subordinate to a officer in assign of a military station, shall forthwith news a seizure to that officer.
(3) Every military officer behaving underneath sub-section (1) shall forthwith news a seizure to a Magistrate carrying office and where a skill seized is such that it can't be conveniently ecstatic to a Court or where there is problem in securing correct accommodation for a control of such property, or where a continued influence of a skill in military control might not be deliberate compulsory for a purpose of investigation, he might give control thereof to any chairman on his executing a bond endeavour to furnish a skill before a Court as and when compulsory and to give outcome to a serve orders of a Court as to a ordering of a same.
Provided that where a skill seized underneath sub-section (7) is theme to rapid and healthy spoil and if a chairman entitled to a possession of such skill is different or absent and a value of such skill is reduction than 5 hundred rupees, it might forthwith be sole by auction underneath a orders of a Superintendent of Police and a supplies of Sections 457 and 458 shall, as scarcely as might be practicable, request to a net deduction of such sale.”
7. The doubt for care would be, either in practice of energy underneath Section 102 of a CrPC, a military officer is empowered to sign a emporium of a postulant (immovable skill of a petitioner)?
8. In a matter of Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood by a Power of Attorney Holder Mr. Rajesh Baxi Chetna Properties Pvt. Ltd. v. The State of Maharashtra 1, a Full Bench of a Bombay High Court reason that a military officer in practice of energy underneath Section 102 of a CrPC 1 MANU/MH/1561/2010 can't insert determined skill and a anxiety was answered as under: –
“86. To sum up, we answer a anxiety thus:
Q.(a) Whether a difference “any property” used in Sub- territory (1) of Section 102 of a Code of Criminal Procedure, 1973 would meant to embody “immovable property”?
Ans. We, therefore, reason that a countenance “any property” used in Sub-section (1) of Section 102 of a Code does not embody determined property. Question
(a), is, therefore, answered in a negative.
Q.(b) Whether a military officer can take control of any determined skill that might be found underneath resources that emanate guess of a elect of any offence?
9. The pronounced Full Bench visualisation of a Bombay High Court has been followed with capitulation by a Patna High Court in a matter of Brajesh Kumar Srivastava v. The State of Bihar 2 holding that a military officer has no energy to sign a determined skill and a word seize underneath Section 102 of a CrPC would meant usually tangible holding possession of mobile property.
10. Not usually this, a Jharkhand High Court in a matter of Bishwanath Paul v. State of Jharkhand 3 also struck a identical tender and reason that for a purpose of facilitating a investigation, a military underneath Section 102 of a CrPC has no energy to put sign on a determined property.
11.Keeping in mind a ambit and range of Section 102 of a CrPC and a ratio laid down by a Full Bench of a Bombay High Court in Sudhir Vasant Karnataki Mohideen Mohammed Sheik 2 2016 SCC OnLine Pat 2900 3 2016 JLJR (1) 443 Dawood (supra), this Court is also of a deliberate opinion that underneath Section 102(1) of a CrPC a military have no energy to sign a determined skill and a word seize underneath Section 102 of a CrPC used underneath Section 102 of a CrPC would meant usually tangible holding possession of a mobile property. we find myself in finish agreement with a ratio laid down by a Full Bench of a Bombay High Court in a aforementioned preference with courtesy to a powers of a military officer to insert determined skill underneath Section 102(1) of a CrPC.
12. Reverting to a contribution of a benefaction case, it is utterly transparent that, in a benefaction case, in practice of energy underneath Section 102 of a CrPC, a military has seized 3 trucks of iron angles and other objects weighing about 40 tonnes and has given a same to a possession of a employees of a petitioner, though thereafter, proceeded to sign a shop/immovable skill held/owned by a petitioner. Following a beliefs of law laid down in Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood (supra), it can't be reason that a military officer has any such energy to sign a determined skill of a petitioner. Accordingly, a Station House Officer, Police Station Chakarbhata is destined to mislay a sign on a determined skill of a postulant and empty a premises of a postulant after creation register of a articles that are fibbing on a shop. The pronounced officer is also destined to make sustenance for gripping of a articles so seized for a prolongation before a justice as and when required. The pronounced practice shall be finished within 10 days from a date of receipt of a duplicate of this order. The postulant will be entitled for empty possession of a pronounced premises.
13. It is finished transparent that this Court has not voiced any opinion on a matter so distant as seizure of element and other articles is concerned.
14. The command petition is authorised to a border indicated herein-above withdrawal a parties to bear their possess costs.
(Sanjay K. Agrawal) Judge Soma
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (C) No.1559 of 2018
Nisar Hussain Versus State of Chhattisgarh and others
Head Note Station House Officer of a military hire has no energy and office to sign a determined skill of a citizen