Remanded

Anil Kumar Agrawal v. The State Of Bihar

Patna HC29 Apr 2014CR. MISC./7456/2014

Case brief

AI extract

What is this about?

High Court quashed lower court order rejecting petition for release of seized medicines. Court directed lower court to release medicines found of standard quality after verifying ownership, keeping safety samples, and taking security, within one week.

What did the court decide?

Order dated 21.12.2013 set aside; lower court directed to release standard quality medicines within one week after ownership verification and security deposit.

Anil Kumar Agrawal Vs The State Of Bihar — Property and Title | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.7456 of 2014

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====================================================== Anil Kumar Agrawal .... .... Petitioner/s Versus The State of Bihar .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 6 29-04-2014 The present application has been filed for quashing of the order dated 21.12.2013 passed by learned Session Judge, Patna in Special Case No. 26 of 2013 arising out of Alamganj P.S. Case No. 120 of 2013 registered for the offences punishable under Sections 419, 420, 467, 468, 379, 274, 275, 276 and 120B of the IPC, Sections 27(b)(ii), 28(A), 28, 27(d)/18(1)(ii) of the Amendment Act, 2008 of Drug and Cosmetic Act, Section 27a/c, 36A(c) and 08/16 of the NDPS Act and Section 2 of D&C Act, 1940 whereby petitioner’s application for release of the seized medicines has been rejected.

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The prosecution case is that the firm of the petitioner was inspected by the Drug Inspector when the medicines were found on the ground floor of the house of one Sarita Kumari, wife of Navin Prasad whereas in the licence, the place of business was specified as 1^st floor of the said house. The medicines were stored at normal room temperature of 30^o C to 35^o C whereas it was required to be stored at a temperature of 2^o C to 8^o C. Huge

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Patna High Court Cr.Misc. No.7456 of 2014 (6) dt.29-04-2014

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quantity of Noscapine, a morphine derivative were seized, which are used as intoxicants after being smuggled in Nepal.

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It is submitted by learned counsel for the petitioner that total seizure is of five categories of medicine having twenty one different brands and one sample each of five categories were transmitted to Bihar Drug Control Laboratory for test, out of which four samples have been found to be of standard quality and with regard to one category, the report is still awaited. Hence, the petitioner claims for release of the medicines which were found to be of standard quality. It is further submitted that confiscation proceeding has not been initiated, as in such kind of cases confiscation proceeding can be initiated after conviction under Section 31 of the Drugs and Cosmetics Act, 1940. The prayer for release has been mechanically rejected by learned court below.

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It is submitted by learned counsel for the State that though medicines of 21 brands were seized but all belonged to five categories, hence only five samples were transmitted for test and out of five, four samples have been found to be of standard quality and with regard to one sample, the report is still awaited. Statement to that effect has been made in paragraph 10 of the counter affidavit. The counter affidavit and supplementary counter affidavit does not suggest in any manner that the prosecution is

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Patna High Court Cr.Misc. No.7456 of 2014 (6) dt.29-04-2014

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eager to conduct any further test of any sample. The learned counsel for the State, however, is not in favour of release of the medicines, since the seized medicines are material exhibits.

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It is well settled law that the question of release of the seized property should be decided by the Court judiciously and expeditiously. Sections 451 and 457 of the Code of Criminal Procedure deal with the power of the Court for order for the custody/disposal of the property pending trial in certain cases and the procedure by the police upon the seizure of the property which read as follows:-

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“Section 451 Cr. P.C.- When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of”.

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“Section 457 Cr. P.C.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the

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Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

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(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation”.

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Hence, Section 451 Cr. P.C. clearly empowers the court to pass appropriate order with regard to such property such as (i) for proper custody pending conclusion of the enquiry and trial (ii) to order it to be sold or otherwise disposed off after recording such evidence as it think necessary (iii) if the property is subject to speedy natural decay, to dispose off the same.

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The object and scheme of the various provisions of the Code concerning seizure of property by police has been dealt

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with by the Apex Court in the case of Basavva Kom Dyamangouda Patil Vs. State of Mysore and Another, reported in (1977)4 SCC 358 wherein it has been observed in paragraph no.4 as under :-

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“The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned 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. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles

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concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance.”

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The issue with regard to exercise of power under Section 451 Cr. P.C. for release of the seized articles was considered by the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002)10 SCC, 283 Paragraph 7 of the judgment elaborates the condition and the purpose of exercise of power under Section 451 Cr. P.C. which reads as follows:-

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“In our view, the powers under Section 451 CrPC should be exercised expeditiously and judiciously. It would serve various purposes, namely:

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1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. court or the police would not be required to keep

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the article in safe custody;

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3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

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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.”

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In view of the above discussion, this Court is of the view that the learned Sessions Judge has not considered the question of release of the seized medicine in true perspective. In the circumstances, order dated 21.12.2013 passed learned Sessions Judge, Patna in Special Case No. 26 of 2013 arising out of Alamganj P.S. Case No. 120 of 2013 is set aside.

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The learned court below is expected to consider the prayer of release of medicine afresh, in view of above discussions, after getting the ownership of the medicines verified, directing the Drug Inspector to keep one sample of all twenty one brands at prescribed temperature and pass appropriate order for release of all four categories of different brands of medicines which have been found to be of standard quality, except the expired medicines, within a period of one week of receipt/production of the copy of this order after taking adequate security.

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Let the order be transmitted to the learned court below

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Patna High Court Cr.Misc. No.7456 of 2014 (6) dt.29-04-2014

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through fax at the cost of the petitioner.

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Amrendra/-

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(Dinesh Kumar Singh, J)

Anil Kumar Agrawal v. The State Of Bihar

Case brief

What is this about?

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Anil Kumar Agrawal v. The State Of Bihar

Case brief

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