HEMODHAR GOGOI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal is directed against the order dated 16.12.1998 passed by the learned Single Judge in Civil Rule No. 6360/98, dismissing the writ petition filed by the petitioner/appellant with an observation that the petitioner/appellant may approach the learned civil court, having competent jurisdiction, to prove negligence of the respondents and to claim damages.

(2.) THE facts leading to the filing of the present appeal is that, a writ petition being Civil Rule No. 6360/98 was filed by the petitioner/appellant praying for directing the respondents to refund an amount of Rs. 9,53,500 belonging to him with interest at the rate of 18% per annum, alleging that the petitioner/appellant who is a licensee of Indian made Foreign Liquor under the Government of Assam and running the said shop at Duliajan was picked up by the Army Personnel from Duliajan Army Camp led by Major Mohendra, respondent No. 4, without any rhyme or reason and tortured him inhumanely in the Army Camp, that Major Mohendra and his personnel demanded cash from the petitioner/appellant alleging that a sum of Rs. 70,00,000 belongs to the United Liberation Front of Assam (ULFA) lying with the petitioner that Major asked the petitioner/appellant to deposit all his personal cash if he wanted to be released. The petitioner appellant having no other alternative, through his wife initially paid Rs. 3,00,000 to Major Mohendra from out of his sale proceeds of the liquor and that the said Major was not satisfied with the amount and ultimately compelled the petitioner/appellant, who was in custody of Army to sign a cheque of Rs. 12,05,000 brought by his wife and get the said amount collected thought his wife, which was also given to Major Mohendra. Apart from that the petitioner was also compelled to pay a further sum of Rs. 2,90,000 to said Major Mohendra. On 6.11.1991 when the petitioner/appellant approached the Deputy Commissioner, Dibrugarh to lodge complaint he came to know that Major Mohendra has deposited a sum of Rs. 5,00,000 out of the total amount taken from him and thereafter deposited the balance amount of Rs. 10,05,000 in Duliajan P.S. stating that the said mount has been recovered from the bank of Dehing river. As the army authority in spite of the payment of the amount continued to torture the petitioner/appellant as well as the family members, a writ petition being C.R.(H.C) 224/91 was filed before this Court wherein, an order was passed directing the authority to keep the money under lock and key in the Dibrugarh Treasury and not to harass the petitioner/appellant and his family members. A C.B.I. enquiry was also directed to be conducted by this Court in respect of the said allegations, but the report of the C.B.I, was not accepted by this Court. This Court upon hearing the parties directed to hold an enquiry by the District Judge, Dibrugarh, by order dated 28.2.1994 passed in the said writ petition and the undisputed amount of Rs. 5,00,000 was directed to be handed over to the petitioner/appellant, as the Army has admitted that the said amount was taken from the petitioner/appellant's house and further directing that the remaining amount of Rs. 10,05,000 is to be kept in the Treasury directing the District Judge to hold an enquiry whether the said amount was recovered by the army from the family members of the appellant after it was withdrawn from bank account or from his other personal sources or whether it was recovered from any place outside the house of the petitioner/appellant as claimed by said Major respondent No. 4. The learned District Judge, Dibrugarh upon conduct of the enquiry submitted his report to this Court in C.R. (H.C.) 224/91 by holding that the amount of Rs. 10,05,000 belonged to the petitioner/appellant and the said money was taken from him by the Army authority as the appellant's story regarding taking of the said money from the petitioner/appellant by the said Army authority was found to be true. A Division Bench of this Court thereafter vide judgment and order dated 2.5.1997 disposed of the said writ petition being C.R.(H.C) 224/91 after accepting the report submitted by the learned District Judge, Dibrugarh and on the basis of the submission of the learned Additional Advocate General, appearing for the State respondent, that the State respondent has no objection to return the said amount of Rs. 10,05,000 to the petitioner/appellant, directed the Deputy Commissioner/Treasury Officer, Dibrugarh, Assam to refund the said amount to the petitioner/ appellant within a week as the money was kept in the Dibrugarh Treasury under the order of the court. The petitioner/appellant when went to the Deputy Commissioner, Dibrugarh to receive the said amount from the Treasury, it was found upon opening of the box containing the money that only a sum of Rs. 51,500 was in good condition and the remaining amount was in a mutilated condition. The Treasury Officer thereafter directed the Officer -in -charge at Duliajan Police Station to approach the Reserve Bank of India, departmentally through the Superintendent of Police, Dibrugarh for exchange of the remaining mutilated currency.

(3.) MR . Dutta, learned senior Counsel appearing on behalf of the petitioner/appellant, challenging the order dated 16.12.1998 passed by the learned Single Judge dismissing the writ petition with the observation that the petitioner/appellant may approach the learned civil court, has submitted that, in the enquiry conducted by the learned District Judge, Dibrugarh, on the basis of the order passed by the High Court in C.R.(H.C) 224/91, it was found that the amount of Rs. 10,05,000 belonging to the petitioner/appellant was taken by the Army official and as the High Court by accepting the said report directed the respondents to refund the said amount, which was kept in safe custody in Dibrugarh Treasury under the order of this Court, the said amount has to be refunded to the petitioner/appellant as it was the duty of the Dibrugarh Treasury to keep the amount in deposit in such a condition that it can be refunded, if so ordered by the court. According to the learned Senior Counsel, the position of the Treasury Officer of the Dibrugarh Treasury is like a bailiff of the court and all possible care has to be taken by the Treasury for safe custody of the amount in deposit. According to the learned Senior Counsel, as the money has been kept in Dibrugarh Treasury under the order of the court, the petitioner/appellant cannot be deprived of from the said property on the ground that the money in the custody of the Dibrugarh Treasury was damaged while kept in a seal cover under the order of the court, as the order of the court should prejudice none. Mr. Dutta has further submitted that the State cannot take the stand that it is immune from liability as the money has been damaged while in custody of the Dibrugarh Treasury in a seal box, as at best it would be a tortious acts committed by the Officer -in -charge of the Treasury. According to Mr. Dutta because of the failure of Treasury to keep the said money in good condition, the State will definitely be responsible and hence, the petitioner/appellant is entitled to get those money back as the respondent never at any time objected to the acceptance of the report submitted by the learned District Judge, Dibrugarh. Mr. Dutta has further submitted that the order passed by the learned Single Judge rejecting the petition by holding that it was, the duty of the petitioner/appellant to take all necessary steps and to obtain order from the court from time to time, so that money kept in sealed cover in Dibrugarh Treasury was in a good condition liable to be interfered with as the petitioner/appellant cannot have any access to the Treasury and the duty was on the Officer -in -charge of the Treasury, who is the servant of the State, to keep the money in good conditions as his position is like a bailiff of the court. Mr. Dutta, in support of his contention has placed relianced in Mis. Kasturi Lal Ralia Ram Jain v. The Stale of Uttar Pradesh reported in : (1966)IILLJ583SC , in the State of Gujarat v. Memon Mahomed Haji Hasam DeadXby his legal Representatives reported in AIR 1967 SC 1885, in Wazir Chand and Anr. v. The State of Himachal Pradesh and Ors. reported in : 1954CriLJ1029 and in Kerala State Electricity Board v. M.R.F. Ltd. reported in : (1996)1SCC597 . Mr. Dutta referring to the decision of the Apex Court in Kasturi Lal Ralia Ram Jain (supra) has submitted that the said decision of the Apex Court is not applicable in the instant case, as the facts and circumstances of the case was different.