JUDGMENT Poonam Srivastav, J.
1. Heard Sri Yashwant Verma, learned Counsel for the petitioner and learned A.G.A. for the State.
2. The petitioner company is engaged in the business of manufacture and sale of machine rolled cigarettes under various brand names. 450 cartons of cigarette bearing brand name "Gold Flake Kings" (hereinafter referred as the seized goods) were being transported by vehicle bearing registration No. UP16B-4525. A first information report was registered after the seized goods were stolen at police station Thana Bhawan, District Muzaffarnagar and the same was registered at case Crime No. 783 of 2005. The police recovered 327 cartons and the same are presently in possession of the police of the concerned police station. The petitioner, who is rightful owner of the seized goods, moved an application on 27.1.2006 under Section 451 Cr.PC. The application was accompanied with the documents to establish its ownership of the seized goods. Another application was moved on 3.2 2006 seeking permission to sell the seized goods in the event it is released. The Judicial Magistrate, Muzaffarnagar vide order dated 21.2.2006 directed to release of the goods in favour of the authorized representative of the company subject to certain terms and conditions but the application for sale of the seized goods was rejected. The petitioner preferred a criminal revision before the learned Sessions Judge, Muzaffarnagar which was numbered as Criminal Revision No. 128 of 2006. The petitioner was permitted to take custody of the goods and sell the same However, the condition of furnishing an undertaking that the petitioner would deposit sale proceeds of the seized goods so released was struck off. The learned Sessions Judge however directed the petitioner to furnish personal bond of Rs. 55 lacs along with surety of the same amount and further an undertaking that it would indemnify the cost of the seized goods in case it was not found to be the owner. The petitioner moved an application on 31.3.2006 for a direction that the seized goods may be destroyed after preparing an inventory as the goods may not be misused. This application was rejected by means of the impugned order.
3. Learned Counsel for the petitioner has brought to my notice that the seized goods are perishable in nature and have very short shelf life. Temperature, variations, humidity, dust, improper handling and delay in consumption causes deterioration in the standard of the goods as the policy of the company is as an internal management that beyond the period of three months from the date of manufacture, the stocked goods are not marketed. Since the time when the petitioner was granted permission to sell the goods, the aforesaid period of three months had lapsed and consequently the goods were rendered unmarketable. In the circumstances, it is submitted that by virtue of the impugned orders, the petitioner is required to furnish a personal bond and security of Rs. 55 lacs in the event it is released therefore, the company will have to furnish the aforesaid amount only because the goods are to be destroyed after it is released. It is in these circumstances, a request was made that the police may destroy the goods itself after preparing an inventory if necessary retain one sample for the purposes of evidence during the trial.
4. I have heard the learned Counsel for the parties. Reliance has been placed by the counsel for the petitioner on a decision of this Court in the case of Kishan Lal and Anr. v. State of U.P. and Anr. 2005(53) ACC, 604. In the aforesaid case, the courts have refused to release the goods on the ground of non payment of trade tax. Since there was no allegation for non payment of trade tax but the goods were seized in a case which was triable under the provisions of Indian Penal Code. The Court could not impose condition for payment of trade tax and the goods were released. The Apex Court has also ruled in the case of Sunder Bhai Ambalal Desai v. State of Gujrat 2003 (46) ACC, 223, where it was laid down that the object and scheme of the provisions of Criminal Procedure Code appear to be that where the property, which is subject matter of an evidence is seized by the police, it ought not to be retained in the custody of the court or the police for any time longer than what is absolutely necessary. The seizure of the property amounts to an entrustment of the property, the purpose of the provisions is that the property should be restored to the original owner after necessity to retain it seizes. It is manifest that there may be two stages when the property may be returned to the actual owner. In the first place during the inquiry or trial specially when the property is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. In the instant case, the seized goods were stolen by some one else and the petitioner company is the actual owner of the property. It was also brought to the notice of the courts below that the period of consumption of the seized goods had already expired and in the event it is sold in the open market, it will spoil the goodwill of the company. The courts below completely lost sight of the fact that the petitioner was not an accused. On one hand he had lost his property and on the other, in the event the property is not released and permitted to sell within the period when it was good for its use, there was quality deterioration than the request to retain one sample of the goods and thereafter to destroy the goods after preparing an inventory could not be refused. The Apex Court had laid down in the case of Sunder Bhai Ambalal Desai (Supra) in paragraph 6 which is quoted below:
(1) Owner of the articles would not suffer because of its remaining unused or by its misappropriation;
(2) Court or the police would not be required to keep the articles in safe custody;
(3) If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the course of trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and (4) This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
5. The courts below failed to take any of these factors into consideration and continuously insisted the petitioner to give an undertaking, sureties, personal bond etc. Such conditions specially where the petitioner was the owner of the property, imposed by the court below is uncalled for.
6. In the circumstances, what has been discussed above, I am of the view that the order dated 31.3.2006 rejecting the application for destroying the seized goods is liable to be quashed. The order passed by the learned Magistrate is only a mechanical order without taking into consideration the entire circumstances of the instant case. The petitioner is not to gain anything by release of the property but the apprehension that the seized goods may be marketed for sale which is no more good for human consumption is fully justified. In the circumstances, the order dated 31.3.2006 is quashed. The police of the concerned police station is directed to prepare an inventory of the goods and retain sample of the and the entire goods shall be deoboyed forthwith seized goods for producing it in the court. The police shall ensure that the detailed description of the goods shall be reduced in writing. This inventory shall be prepared in the presence of the Judicial Magistrate concerned. The documents shall be signed by the concerned police authority, the Magistrate and one representative of the company and copies be given to each of them for the purpose of trial. This exercise shall be completed within a period of four weeks from the date a certified copy of this order is produced before him.
7. With these observations, this writ petition is finally disposed off.