RAJKUMAR AGRAWAL Vs. SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India, by a Contractor, dealing in purchase of Sal Seed/wherein he seeks the release of the Sal Seeds, which according to him, had been illegally seized by the respondent.

(2.) THE petitioner had purchased the Sal Seeds from the forest area, which was under a lease to him. The respondent sealed his godowns on 3-10-1973. Thereafter the petitioner waited for quite good time. Subsequently, the Sal Seeds stored by the petitioner from 1-2-1974 to 9-2-1974, in all 9605 bags, were seized. Thereafter the petitioner moved this Court for a writ on 13-3-1974. It was after the admission of the present writ petition that the respondent filed an application before the Magistrate 1st Class for passing an order under Section 523 of the Code of Criminal Procedure in respect of the seized property.

(3.) THE instant question had been exhaustively considered by us in Ram Kumar Agrawal v. State of M. P. Misc. Petn. No. 112 of 1974, D/23-4-74 (MP) wherein we had relied on the Supreme Court case of Wazir Chand v. The State of Himachal Pradesh AIR 1954 SC 415 : 1954 Cri LJ 1029. In that case it was laid down by their Lordships of the Supreme Court that even though the property may be produced before a Magistrate, Section 523 of the Code of Criminal Procedure would be inapplicable and the Magistrate would have no jurisdiction to order return of the goods, but as fundamental rights of the petitioner would be infringed as guaranteed by Articles 19 and 31 of the Constitution of India, the petitioner was entitled to be granted relief in exercise of the prerogative powers under Article 226 of the Constitution of India. It would, therefore, be clear that if prima facie it is established that the seizure is illegal and under no authority of law, the High, Court in exercise of prerogative powers would certainly be able to grant the relief to a petitioner irrespective of the fact that the property may have been produced before a Magistrate, who might be able to exercise the powers under Section 523, Criminal P. C, We may observe that the line of distinction will be this. If prima facie it is established that the seizure is without any authority of law, the High Court would certainly exercise its prerogative powers. On the other hand, if prima facie it appears to the High Court that the requirements of Sections 550 and 523, Criminal P. C, are fulfilled, the High Court will stay its hands and will leave the matter to the discretion of the Magistrate before whom the property may be produced.