VISHNURAM AGRAWAL Vs. SOUTH EASTERN COAL FIELDS LTD

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 20 -7 -1998 passed by Additional Sessions Judge, Surajpur in Criminal Appeal No. 188/91 directing that the seized coal, which was seized from the brickkiln area of the petitioner as far back as 3 -12 -1998 in connection with investigation of Criminal Case No. 295/89 which was tried before the Judicial Magistrate First Class, Surajpur be released to respondent No. 1. It was seized on 3 -12 -1988 on allegations by Security Officer of respondent No. 1 South Eastern Coal Fields Limited (SECL) that it was stolen from the colliery of SECL at Bishrampur which the present petitioner (the accused) was storing illegally. This petitioner was tried as an accused on charge under section 411, Indian Penal Code, but, in the aforesaid criminal case, the Judicial Magistrate First Class vide his judgment dated 30 -11 -1991, acquitted him holding that there was no definite evidence beyond doubt that he had kept this coal knowing it to be stolen property belonging to the complainant. The coal was about 180 tons, carried in 18 trucks at the time of seizure vide memo Ex. P/2.

(2.) THE accused, present petitioner, applied for release of this coal to him after his acquittal as acquittal had remained unchallenged. This application was moved on 12 -12 -1988 and decided in favour of the present petitioner by the Magistrate vide order dated 30 -11 -1991. The respondent No. 1 SECL directed appeal before the Sessions Court which was filed as Cr. Appeal No. 188/91 and decided on 20 -7 -1998 by Additional Sessions Judge, Surguja. The appeal was allowed and the coal was directed to be given to SECL. The petitioner has felt aggrieved and approaches this Court in present revision petition. The main contention of counsel for the petitioners is that the trial Court which was trying the charge under section 411, Indian Penal Code, about this coal, did not find it to be stolen property. No finding is given that the coal belonged actually to SECL. The only finding is that it was not established that the coal was in possession of the accused as stolen property knowing it to be so. The argument is that, in view of this the person who was in possession of the coal at the time of seizure was entitled to its restoration and it is further urged that the trial Magistrate, while passing the order of giving possession to the petitioner accused has given various reasons also that the coal belonged to petitioner or could belong to him or that it was not established that the coal belonged to SECL. It is urged that the approach of the appellate Court is mainly based on the evidence of General Manager of the Company who appeared as PW -8 and evidence of a chemical Analyst of the Company who had analysed a sample of about 5 kg. of coal and reached a conclusion that it was B grade coal which is also not a steam coal. The seized coal was also described as B grade coal at the time of seizure vide seizure memo Ex. P/2. Even accused case was that he had purchased 500 tons D grade coal as far back as during the period 1986 -1987 and out of which he could consume 257MT of the coal for preparing bricks and rest of the coal remained in stock and that coal had been taken away by the police on the complaint of officer of SECL. The appellate Court found that since the accused according to his own case had purchased only D grade coal which is also known as stag and which is mostly in form of powder, while the seized coal was found in lumps at least 70% and was described as a B grade coal by the General Manager on examination also by the expert analyst, it could not be coal purchased by accused, it was something else and so it belonged to petitioner company, and hence the appeal was allowed and possession was ordered to be given to the company.

(3.) FROM a perusal of the judgment of the appellate Court, it becomes clear that the appellate Court has proceeded as if it was deciding the title of the coal. This coal was produced before the Court as subject of theft. A first information report Ex. P/11 had been made by a Security Staff of the Company on 3 -12 -1988 that 7 cyclists were noticed taking 7 bags of coal from the stock of the Company and when followed they went to kiln of this accused and threw the coal there and escaped. A stack of coal of B grade was noticed which the security officer found to be of B grade, hence, the report was made that all the stack was the stock of the Company's stolen coal, with the accused. The stress of evidence, during the trial on behalf of the prosecution, was that this coal was B grade and so it belonged to the Company. The accused had led evidence of purchase of D grade coal to the extent of 500 tons. The purchase confirmation voucher is from Ketka Colliery. The company's colliery is at Bishrampur wherefrom this coal was allegedly stolen. The law about release or possession of property which is seized as stolen property under section 452, Criminal Procedure Code is that the Court may make such order as it thinks fit for the disposal or deliver to any person claiming to be entitled to possession of the property produced before the Court or regarding which an offence appears to have been committed. This order is to be passed on conclusion of the trial. The most relevant words are "delivery to any person claiming to be entitled to possession thereof' for deciding whether the person is entitled to delivery of such property about which offence of receiving it as stolen property is tried. The Court has to proceed on prima facie evidence and not to act as Civil Court deciding question of title. When property is seized from a person who is in possession, ordinarily it will be released back to him if the offence is found not established in respect of the property and no finding is given that although property belonged to the complainant the accused did not know that it was stolen. If the finding is of the later type, then, of course, the complainant would be entitled to possession of the property. In the present case that finding had not been reached and the property was seized from the premises of the accused. This leads to the question whether on the basis of evidence regarding grading of the coal, it could be said that the Company respondent No. 1 was entitled to release of the coal in his favour as against the person from whose possession it was seized.