(1.)The Petitioner lodged a first information report before the Police stating that his firm, namely, M/s Santosh Kr. Mullick & Sons (Private) Ltd. had been cheated by using letter -head of the Calcutta University, purported to be issued by the University for placing an order for 7350 kgs. of M.S. iron rods worth of Rs. 10,000 and by giving a cheque, and that they being so deceived delivered 7350 kgs. of M.S. iron rods to a lorry which unloaded the stock at the shop of M/s Gorakh Nath Singh, 23 Deshapran Sashmal Road instead of to the University, and the letter -head and the cheque had later been found to be false. On his complaint a case being No. 103 dated April 23, 1971, under Ss. 120B, 420, 467 and 471 of the Indian Penal Code was started. Police took up investigation. In the course of investigation the Police on the statement of the lorry driver searched the shop of M/s Gorakh Nath Singh and seized from there 7350 kgs. of M.S. iron rods and obtaining Magistrate's order kept those at Tollygunge P.S. compound. The Petitioner applied before' the Magistrate on April 27,1971, for the custody of the seized goods. The Magistrate obtained a report from the Police and by his order dated May 3,1971, allowed his prayer subject to his furnishing a bond of Rs. 10,000 on usual terms. The Petitioner furnished a bond. The Police delivered the seized goods to him for the custody. On May 10, 1971, the opposite party No. 1, Kishore Mohan Saha, describing himself as the Manager of M/s Gorakh Nath Singh filed a petition before the Magistrate claiming custody of the seized goods. The learned Magistrate again called .for report from the Police. The learned Magistrate by his order dated August 11, 1971, directed the Petitioner to produce the seized goods at the Thana for being kept in custody there pending his investigation as to the claim of the opposite party No. 1. He also directed a notice of the petition of the opposite party No. 1 to be served upon the Petitioner. The Petitioner, therefore, objected to the claim of the opposite party No. 1 by a petition dated August 21, 1971, and did not produce the seized goods as directed. The learned Chief Presidency Magistrate heard the parties on August 28,1971, and fixed September 4, 1971, for orders. On that date he made this order in these terms:
V.D. Mullick is called upon to make over the custody of the seized iron rods to the Police so that these can he handed over to the person, namely, the firm Messrs. Gorakh Nath Singh represented by the Manager, Kishbre Mohan Saha, from whom these were seized. This must be done within seven days from the date of this order, in default, the bond furnished by V.D. Mullick will stand forfeited and he will deposit the entire amount of Rs. 10,000 in Court within a week from date.
(2.)The Petitioner has moved this Court against this order of the Magistrate dated September 4, 1971. His petition has given rise to Cr. Rev. Case No. 652 of 1971,
(3.)Mr. A.K. Dutta, learned Advocate, with Mr. Biswanath Sanyal, Advocate, appearing for the Petitioner, submitted that the order of the Magistrate directing him to make over the custody of the seized goods to the Police, forfeiting his bond in default and asking him to deposit the entire amount of the bond, is wrong. It appears from the order that the Magistrate has directed the Petitioner to make over the seized iron rods to the Police to enable them to make over the same to the opposite party No. 1. When the opposite party No. 1 applied on May 10, 1971, claiming the seized goods, the Magistrate decided by his order dated August 11, 1971, that he would investigate his claim and directed notice on the Petitioner. He heard the parties on August 28,1971, but in his order dated September 4,1971, he had not made any clear finding that he was satisfied on a consideration of the Police report or of documents produced before him by the parties and/or on hearing them that the opposite party No. 1 was 'entitled to possession' of these seized iron rods. He does not appear to have considered any document relating to the opposite party No. l's claim. The. only ground on which he appears to have proceeded was that the seized goods were taken into custody by the Police from the shop of M/s Gorakh Nath Singh of which the opposite party is the Manager and that the Police had not till then made him an accused in the case and that his claim was, therefore, to be granted. The Police did not state that the opposite party No. 1 was not wanted in the case or that there was no case against him. What the Police stated in their report on May 21, 1971, was that - -
Kishore Mohan Saha is not wanted as an accused person in the above noted case at this stage. His complicity in the case is still a subject -matter of investigation.
The Police further stated on June 8, 1971,
that enquiries were made regarding the bona fide or otherwise of the Petitioner's (the opposite party No. 1) claim of the seized goods and books of account as produced by the co -Petitioner Bejoy Singh were scrutinized. The Petitioner could not single out the vouchers or even could not show the relevant entries in the books of account and prove his claim of the seized goods.... In other words, the Petitioner failed to produce relevant papers therefore. Further investigation into the case is in progress.
They reported again on July 29, 1971,
the documents were produced by the Petitioner (Kishore Mohan Saha) on a plea of innocence and also to show his bona fide possession Of the goods. On scrutiny of the documents it is found that the Petitioner's contention is not correct. He, however, did not produce other documents to prove his claim nor any books of account were found in his shop during search.
On these documents the Magistrate was not justified in concluding that the opposite party No. 1 is not wanted in the case or would not be made an accused in the case, on completion of investigation, at a later stage. The Magistrate did not consider the documents for himself. He did not advert to the Police reports or misread those and thus had made a wrong conclusion. The Magistrate's order dated September 4, 1971, directing the Petitioner to make over the seized goods to the Police to enable the Police to make over the same to the opposite party No. 1 is wrong and cannot stand. The other part of the Magistrate's order forfeiting in default the bond and directing deposit of Rs. 10,000 on such forfeiture is also consequently bad. That order shall also be vacated.