- (1.) AMAR Saran, J. Heard learned Counsel for the applicant and learned A. G. A.
(2.) THIS application has been filed for release of 1000 tins of Swastik brand vanaspati ghee in favour of the applicant on the ground that they were purchasers of the same from M/s. Swastik Oil Industries Pvt. Ltd. , Nepal which had been seized by the police in consequence of a robbery of the same from a truck carrying them from Nepal to the applicants firm regarding which a case at Crime No. 2607 of 2006, State v. Shahid under Sections 394 and 411, IPC, PS Kila, District Bareilly had been registered. The learned Counsel for the applicant submits that a truck, carrying the aforesaid goods, manufactured by M/s. Swastik Oil Industries Pvt. Ltd. , Nepal, was looted in the night of 3/4-11- 2006 at about 11 p. m. An F. I. R. about the incident was lodged by the driver of the truck, Khursheed Alam, on 4- 11-2006 at P. S. Kila, District Bareilly at the aforesaid crime number. The goods were subsequently recovered by the police of P. S. Kila and are lying in the police station and there is danger of their being spoilt. The applicant had moved an application before the C. J. M. , Bareilly, in the aforesaid case, through his power of attorney holder Pradeep Kumar (the deponent before this Court) for the release of the said goods. However, the said application was rejected on 7-2-2007 on the grounds that earlier another application had been moved by one Prahlad Narain Sharma, who held a power of attorney and authority letter to release the goods in his favour of the supplier (the aforesaid Swastik Industries) on 24-1-2007 on the ground that no application at the instance of the power of attorney holder was maintainable. The present application was also rejected because it was also moved by the purchaser of the goods through his power of attorney holder and also because the transporter and manufacturer/supplier who were the other parties in the matter had not been heard.
(3.) I think that the learned Magistrate erred in passing the said order as the vanaspati goods being a perishable commodity were likely to decay or to be lost if they lay unattended in the police station. Moreover it was incumbent on the learned Magistrate to have issued notice and given an opportunity of hearing to the other two parties, i. e. , the manufacturer and the transporter of the goods to come forward and raise their counter- claims or to give no objection certificates for release of the goods in favour of the applicant/alleged purchaser. In the counter-affidavit filed by the State also the stance of the learned Magistrate has been defended. However, in the rejoinder affidavit, the applicant has annexed the copies of no-objection certificates from the manufacturer and the transporter. I am not in a position to determine the genuineness or otherwise of the aforesaid no-objection certificates filed by the applicant in this Court. However in my view the interests of justice would be served if the order of the learned Magistrate dated 7-2-2007 is set aside and the matter remanded back to him to consider the application of the applicant afresh for release of the goods after giving notices and opportunities of hearing in the matter to the manufacturer and the transporter. In the event that the said parties choose not to appear, and there is no other legal impediment also, the learned Magistrate may pass an order releasing the goods in favour of the applicant on such conditions and security as he may deem fit and proper. As far as possible the said application should be decided expeditiously, preferably within 10 weeks of submission of certified copy of this order before the learned Magistrate.;