S. S. Kulshrestha, J. - (1.) -Heard learned counsel for the parties and also perused the materials on record.
(2.) THIS petition under Article 226 of the Constitution of India has been brought for quashing the order dated 27 May, 2002 passed by the learned IXth Metropolitan Magistrate, Kanpur Nagar whereby declining the release of the goods which were seized from the godown/premises of the petitioner and also quashing the order dated 9 July, 2002 passed by the learned Additional Sessions Judge, Kanpur Nagar affirming the order of the learned Magistrate. It has been contended by the learned counsel that he is a licence holder of aerated water since 1990, in the name and style of New Anand Bottling Company. He owns a small unit, under which he manufactures aerated water with its brand name Choice U. P., Lemon Cola, Orange and Soda aerated water, right from the year 1990. The licence of the petitioner was renewed by the prescribed authority, under Section 51 of the Prevention of Food Adulteration Act, 1954 which provides that if application for a license is made before the expiry of the period of validity of the licence, the licence shall continue to be in force until orders are passed on the application. It is said that the period of licence was subsequently renewed on 23rd April, 2002. It has further been asserted that on 11th November 2002, a false report was lodged against the petitioner's company at the Police Station Kaka Deo, district Kanpur Nagar. On that basis, the petitioner's unit was raided by the Police and the Police sealed the premises which contained therein 7 Cylinders, 1 Crown Machine, 1 Filling Machine, 2 Big Iron Tubes, 35 Crates filled choice, filled bottles 10 Crates, Citra (Soda) 3 Crates, Canada dry Soda, 7 Soda and the godown was also sealed. Empty bottles were also seen to be lying in the godown. For that purpose, it has also been asserted that the son of the petitioner is in the Kabari business and those empty bottles belonged to him. He is said to be the manufacturer of aerated water only but due to the seizure of the factory unit, the business of the petitioner appears was adversely affected. It has also been mentioned that the petitioner is not engaged in production of misbranded water. These facts were also brought to the notice of the revisional court but the premises/godown and other articles, which belonged to the petitioner were not released by the learned court below by passing the impugned order. In that regard, first and foremost point raised by the learned counsel for the petitioner, was that no offence is prima facie made out. He is the licensed owner and was not making any misbranded water from his unit for which he had the licence. The empty bottles, if any, which were found lying, belonged to his son, who was involved in Kabari business. In that regard reliance was also placed on the case of Munna Singh Tomar and others v. State of M. P. and others, 1989 Cr LJ 580, wherein the putting of the lock in the business premises was also held to be arbitrary and illegal and also contrary to Sections 82 and 83 of the Code of Criminal Procedure. It shall also be useful to refer the Apex Court's judgment rendered in the case of Olga Tellis, AIR 1986 SC 180, which was reiterated in the case of Munna Singh (supra). It reads as under : "We do not think if after Olga Tellis, AIR 1986 SC 180 any order can be made for evicting persons in possession without hearing them and it is doubtful if a running business can be so stalled as right to shelter and right to livelihood are not constitutionally guaranteed. How premises can be "sealed" and "locked up" as done in this case? Indeed it has not even been shown to us that in this case, there was an order by the Court for authorizing the Police to do so or whether to police could make a direction to the tenants for deposit of rent in Court though the Police did so and made a record in the seizure memo of having done so. If the members of the petitioners' family, their mother and children, were living in the concerned premises, we do not think if they could be thrown out on the street and the residential houses of the petitioners "sealed up". We also do not think if the hotels and restaurants of the petitioners could be "sealed up" likewise in the manner of a hurricane suddenly descending from the heavens to raze everything to the ground. The Constitution, as per Olga Tellis (supra) interdicts arbitrary actions of the State impinging on a citizen's right to shelter and livelihood." In this regard reference of the 'object and scheme' of various provisions of the Code have also been referred in the case of Smt. Basavva Kom Dyamangouda Patil v. State of Mysore and another, 1977 ACrR 337 (SC) : 1977 (14) ACC 220 (SC), which is read as under : "The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it would not be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing 'that one' of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
(3.) RELIANCE has also been placed in the case of Sunderbhal Ambalal Desai v. State of Gujarat, 2003 (46) ACC 223, wherein it was held that the powers under Section 451 of the Code of Criminal Procedure should be properly and promptly exercised by the Court. Further the bond and security should be taken by the Court so that the evidence be not altered or destroyed. In view of the above discussion, to avoid the loss or damage, the learned Magistrate may fix any of the conditions of his satisfaction for making the release of the said property.;