MUKESH KUMAR SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This petition under Sec. 482 Cr.P.C. by accused of an offence under the N.D.P.S. Act has been filed seeking direction to the respondent State Government to appoint special officer to take possession of the goods and handover the same to the Excise Department for disposing of the same immediately.

(2.) The short facts of the case are these-Petitioner was granted licence for collection, sale and distribution of L.P.H. (Lanced Poppy Heads) in the year 1996-97 in consideration for Rs. 33,11,000/- and he had placed the L.P.H. in a bounded warehouse which was locked as per Rules; one key of which was with the Excise Department and the other with him. On 10.6.1996 the S.H.O., PS. Chanderiya came to know that there was a grinder in a room in which the L.RH. was pwdered. He therefore took possession of the entire goods lying in the petitioner's bonded warehouse. The police affixed seals over the bonded warehouse. The petitioner challenged the action of the police by filing writ petition no. 468/96 in this Court which is pending. On 17.3.1997 the petitioner moved an application under Sec. 457 Cr. P.C. before the Court of Special Judge, N.D.P.S. cases, Chittorgarh pointing out that LPH was the natural product requested that it should be sold in the market otherwise it would go waste. This application remained pending for considerable period. The petitioner therefore moved this Court by filing a misc. petition wherein this Court passed an order that the application of the petitioner be disposed of within a period of five weeks. The Trial Court decided the .application of the petiioner vide order date. 6.2.1999 directing the police to hand over all the goods seized in case no. 228/96 to the District Excise Officer, Chittorgarh, after taking sample by the Judicial Magistrate, Chittorgarh. The Judicial Magistrate, Chittorgarh inspected the site on 1.3.1999. He noticed that the bonded warehouse was having two gates but there was no lock on the shutter of one gate and 'Doda Post' was lying scattered and some of the 'Doda Post' was also lying in front of godown. He noticed that there was no seal affixed on the lock of the godown. He recorded these facts in his inspection note. Be that as it may, the police did not handover the goods to the Excise Department as ordered by the Special Judge in his order date 6.2.1999. The petitioner thereafter made applications to the higher authorities of the police department for complying with the order but in vain. The petitioner's case is that there is wide spread rumour that the police had sold the goods lying in the petitioner's godown and as the goods falls short the police is delaying its delivery to the Excise Department and is waiting for the arrival of the crop in April to make up the deficiency. In the petition it is stated that the petitioner is the owner of the goods and he will suffer if the same is not disposed of before the arrival of the new crop of L.P.H. and on assuming that the petitioner is not likely to get the goods or its price, the exchequer will be put to a loss of Rs. 80 lacs to one crore. It has been prayed that the goods be directed to be handed over to the Excise Department who should dispose of the same immediately.

(3.) Mr. Kalla learned counsel for the petitioner contended that though no offence has been committed by the petitioner yet assuming the prosecution case to be true, goods should be directed to be delivered to the Excise Department who should dispose it of before the arrival of the new crop, so that adequate sale price of the goods may be received; and if the petitioner is found innocent he may not suffer loss. He submitted that if the prosecution succeeds in its case and the goods is forfeited, the benefit of its price will go to the exchequer, and therefore, it should be sold before the arrival of the new crop. Mr. Kalla pointed out that the circumstances indicate that there was pilferage of the goods by the police and immediate action is required in the case as on the arrival of the crop when there will be throw away price of the LPH the police will make up the deficiency in order to cover up the crime.