SHAHUD UL HAQUE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) -In this revisional petition the petitioner has challenged an order of the 5th Judicial Magistrate, Alipore rejecting his application for giving custody of certain seized articles. The petitioner's case is that be is a monthly tenant in respect of one flat on the 1st floor and one garage on the ground floor at premises no. 10, Sunny Park, P.S. Ballygunge, Calcutta, under Opposite Party No. 3. The petitioner claims to be in possession of the said tenanted premises on and from the 16th October, 1991. It is alleged that the men and agents of M/s. Superintendent Co. of India Pvt. Ltd. (of which opposite party No. 2 is a Director) (hereinafter referred to as the company) are harassing and humiliating the petitioner and his family members and trying to take forcible possession of his tenanted premises. As a result various criminal and civil proceedings were started against each other. On the 17th January, 1992, the petitioner filed a suit against the opposite party No. 3 inter alia for declaration and injunction and for other reliefs and in that suit the petitioner filed an application under Order 39, Rules (1) and (2) for an order of injunction restraining the defendants and their men and agents from interfering with his possession of the tenanted premises. The learned 2nd Court of Alipore in the said suit passed an order directing the parties to maintain the status quo. It has been alleged by the petitioner that the men and agents of the company are wrongfully and illegally pressurizing him to vacate the premises and to hand over possession of the same to the company. On the 15th February, 1992, opposite party No. 2 filed a petition of complaint before the Sub-Divisional Judicial Magistrate, Alipore, being Complaint Case No. C-373/1992 against the petitioner making allegations of offences punishable under sections 448/341/380/365/506/109 I.P.C. The Magistrate took cognizance of the case and issued process against the petitioner and others. On the 7th March, 1992, opposite party No. 2 obtained an order for search warrant and seizure in the aforesaid complaint case. As a result of the said search four tube fights and two cots were seized which were claimed by the opposite party No. 2 to be the property of the complainant. The petitioner filed an application under section 451 Cr. P.C. before the Magistrate for return of the seized articles. Both parties claimed ownership of the articles and the Magistrate after hearing both the parties rejected the prayer of the petitioner and passed as order giving the custody, of the articles to he complainant opposite party. Being aggrieved by the said order the petitioner has filed this revision petition for setting aside the said order and for handing over the articles to him on proper security.

(2.) The opposite party No. 2 contests the revisional application. His contention is that the seized articles belonged to the complainant and that they were rightly seized by the police on the complainant's showing. He also submits that the order passed by the Magistrate giving custody of the seized articles to the complainant is a correct one.

(3.) Mr. Pradip Ghosh speaking for the revision petitioner submits that the reasoning adopted by the Learned Magistrate for preferring the custody of the seized articles in favour of the complainant-O.P. is neither just not proper. In this case both the petitioner and the complainant prayed for custody of the seized articles-the petitioner on 17.3.92 and the OR on 3.4.92. The complainant's petition was supported by an affidavit but the petitioner's petition was not so supported. The Magistrate held that the petitioner had neither supported his petition by an affidavit nor filed any counter-affidavit against the complainant's petition dated 3.4.92 and that as such the complainant had an edge over the claim of the petitioner. This reasoning was applied and resorted to after both the parties had made abortive claims of ownership to the seized articles by producing xerox copies of cash memos from each side. The Magistrate refused to entertain xerox copies of receipts produced by both the parties but held the complainant to be a better claimant of custody on the articles on the ground mentioned above.