Allowed

Mohd. Rizwan v. State of U.P. and 2 Ors.

Allahabad HC17 Sept 2019CRLR/1747/2019

Case brief

AI extract

What is this about?

Criminal revisionist sought release of sealed rooms under Section 457 Cr.P.C. The High Court set aside the order rejecting the application and remitted the matter to the Special Judge for fresh consideration.

What did the court decide?

The challenged order dated 16.3.2019 was set aside and the matter remitted to the Special Judge to reconsider the release application afresh within three months.

Mohd. Rizwan Vs State of U.P. and 2 Ors. — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 69

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Case :- CRIMINAL REVISION No. - 1747 of 2019

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Revisionist :- Mohd. Rizwan Opposite Party :- State Of U.P. And 2 Ors. Counsel for Revisionist :- Zafar Abbas Counsel for Opposite Party :- G.A.

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Hon'ble Vivek Kumar Singh,J.

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Heard Sri Zafar Abbas, learned counsel for the revisionist and Sri Abhinav Prasa, learned AGA for the State and also perused the record.

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The instant revision has been filed with the prayer to set aside the impugned judgement and order dated 16.3.2019 passed by Special Judge (The Drugs and Cosmetics Act)/ 7th Additional Sessions Judge, Moradabad in case crime no.37 of 2018( (State Vs. Rakesh Kumar Dhal), under sections 274, 275, 276, 419, 420 IPC and Sec.18/27, The Drugs and Cosmetics Act,1940, Police Station Gulshaeed, District Moradabad,whereby the third release application of the revisionist was rejected in respect of the two rooms of a building in question.It is further prayed that the concerned authorities may be directed to open the lock of the rooms of the revisionist and hand over the same to him.

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The facts of the case in brief are that one Rakesh Ku,ar Dhal, who was the owner of the house in question executed a sale deed on 12.3.2015 in favour of the revisionist and the name of revisionist was mutated in Nagar Nigam, Moradabad. Prior to selling of the house, Rakesh Kumar Dhal was carrying out the work of preparing the medicine in two rooms.At the time of selling the house,Rakesh Kumar Dhal had promised to the revisionist to vacate the said two rooms having installed some machines which remained closed. The rooms were not given on rent. There is no dispute with regard to the ownership of the house.

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On 16.02.2018 the first information report was registered by the police against other co-accused persons in connection with the raid conducted by it, in which it had recovered 25 illegally prepared drugs/ medicines from different sags which were being prepared/manufactured by installed machines, in two rooms of the building in question.Those who were in possession of two rooms and owned the machines, used for preparing/manufacturing medicines, were made accused in the first information report. The release application was filed by the revisionist claiming to be the owner of the building as he claimed to be a bona fide purchaser and registered owner of the house in question including the rooms sealed by the police. He claimed to have purchased the house in the month of the March, 2015 and the F.I.R. having been lodged only on 16.02.2018 in connection with case crime no. 0037 of 2018 wherein the revisionist is not an accused in the present case and he has not committed any offence. Nothing has been recovered from the possession of the revisionist and so he is totally innocent. It is next countered that the revisionist moved an application before the court below for release of the sealed rooms under Section 457 of the Code of Criminal Procedure, 1973. Is is next contended that the Court below illegally rejected the application moved by the revisionist vde order dated 16.3.2019.

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Submission of the learned counsel for the revisionist is that the court below has not properly considered section 457 Cr.P.C. and has illegally passed the impugned order holding that that the order of this Court was produced after a delay of three days for which no explanation has been given by the revisionist to which learned counsel for the revisionist submitted that sufficient explanation was given, but the same was not properly considered by the court below.It is further contended that the revisionist is not an accused in Case Crime No.37 of 2018 and as such he has no concern in this case and he is also not named in the FIR. Therefore.it is not his responsibility to produce the order passed by this Court before the court below. it is also held by the court below illegally that while the release application was filed before the Court below, the correct facts regarding the proceeding of stay granted by this Court were not brought to its notice.Further submission is that it was the duty of police personnel to take the possession of the machines in question and keep the same at the police station or any other place, but this aspect of the matter has not been considered by the court below. It is next contended that this Court vide its order dated 5.2.2019 passed in Criminal Misc.Application under section 482 Cr.P.C. No.269 of 2019 had remanded back the mater to the court below to reconsider the release application of the revisionist, but the court below instead of considering the release application of the revisionist has only considered the order of this court in respect of the accused of this case. There is no liability of the revisionist to file the order of this court passed in the case of accused in the present case as the revisionist has noting to do with the case of accused. The revisionist has produced all the relevant documents before the court below.

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In view of the above, the revisions is, allowed and consequently the impugned order dated 16.3.2019 is also set aside.

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However, having heard the counsel for the parties and their arguments raised across the bar and the pleadings raised in the affidavit filed in support of the revision and also having carefully examined the order impugned dated 16.3.2019 passed by Special Judge (The Drugs and Cosmetics Act)/ 7th Additional Sessions Judge, Moradabad in case crime no.37 of 2018( (State Vs. Rakesh Kumar Dhal), under sections 274, 275, 276, 419, 420 IPC and Sec.18/27, The Drugs and Cosmetics Act,1940, Police Station Gulshaeed, District Moradabad,the matter is remitted back to the concerned Magistrate to consider and decide the releases application afresh in accordance with law preferably within a period of three months from the date of production of certified copy of this order before it.

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With the above observation the revision is finally disposed off.

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Order Date :- 17.9.2019

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Mohd. Rizwan v. State of U.P. and 2 Ors.

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Mohd. Rizwan v. State of U.P. and 2 Ors.

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