- (1.) The Judgment of the Court was delivered by -By filing this application under section 401 read with section 482 of the Code of Criminal Pracedure the revisionist has sought to challenge an order dated July 16, 2008 passed by the learned Chief Judicial Magistrate, 24-Parganas (South) at Alipore, in T.R. Case No.5 of 1988 which arose out of Raina P.S. Case No.3 dated 5.6.1981 under section 21(1) of the West Bengal Cold Storage (Licensing and Regulation) Act 1966 (in short said Act).
(2.) Heard Mr. Das, learned counsel for the petitioner in support of the instant revisional application. Mr. Satpathi, learned counsel appearing on behalf of the State has opposed the revision and has supported the findings arrived at by the learned Chief Judicial Magistrate, 24 - Parganas (South), in the order impugned. It is submitted on behalf of the petitioner that Raina Police Station Case No.3 dated June, 1981 under section 21(1) of the said Act was initiated against and his brother at the instance of the District Enforcement and on completion of investigation the investigating agency submitted a final report (F.R.T. No. 26 dated 19.9.1985). His further submission is that, in view of the provision under section 167(5) of the Code of Criminal Procedure, a petition was moved before the learned Chief Judicial Magistrate, 24 - Parganas (S) at Alipore with a prayer for their discharge from the aforementioned proceeding and on perusal of the final report both of them were discharged from the said case on 4th October, 1991. After being discharged the petitioner, submitted a prayer before the learned Chief Judicial Magistrate, 24 - Parganas (South) at Alipore, for return of the seized articles/goods and the investigating agency was accordingly directed to return the seized articles/goods after expiry of the statutory period of appeal vide order 24th February, 1992. Despite such specific order, no steps were taken from the end of the investigating agency to return the seized articles/goods which include 40,000 (Forty thousand) packets of potatoes. When such inaction on the part of the investigating agency was brought to the notice of the learned Chief Judicial Magistrate, 24-Parganas (S) at Alipore, the learned Magistrate was pleased to reject the prayer of the petitioner without assigning any reason vide his order dated 5th July, 2000. Against such order, the petitioner moved a revisional application before the learned District and Sessions Judge at Alipore and the impugned order 5th July 2000 passed by the learned Chief Judicial Magistrate in T.R. Case No.5 of 1988 was subsequently set aside in Criminal Motion No.401 of 2000 by the learned Additional District and Sessions Judge, 11th Court at Alipore vide order dated 20th November, 2003. It is further submitted by Mr. Das that despite such directions and orders, the investigating agency failed and/or neglected to return the seized articles or goods. Therefore, the petitioner had to move a revisional application before this Court under section 483 of the Code of Criminal Procedure. The High Court was subsequently pleased to dispose of the revisional application being C.R.R. No. 1049 of 2008 on contest with a direction upon the learned Chief Judicial Magistrate, 24-Parganas (South) at Alipore to decide the matter pertaining to return of seized goods or articles conclusively and finally within a period of three months from the date of receipt of the copy of the said order. Accordingly, his application was taken up for hearing and the prayer for return of the seized potatoes was arbitrarily refused by him with the observation, inter alia, that no packets of potatoes were seized at the relevant point of time.
(3.) Being aggrieved by and dissatisfied with the aforementioned order of the learned Chief Judicial Magistrate, 24-Parganas (South) at Alipore, the petitioner has preferred this revisional application mainly on the ground that the learned Magistrate has committed an error in reviewing his earlier order whereby the return of seized potatoes was ordered on 24.02.92. It is also vehemently argued by him that the learned Court below has also ignored the factual position that emerges from the final report itself which indicates that there was seizure of forty thousand packets of potatoes from the cold storage of the petitioner. The Police Sub-Inspector's claim in the final report that potatoes were returned to the producers after seizure is, however, disputed by him on the ground that save and except a mere reference in the final report no other document is forthcoming in support of such contention. It is, therefore, submitted by him that this Court would either pass a direction upon the investigating agency to return the said forty thousand sacks of potatoes to the petitioner or to remand the matter to the learned Chief Judicial Magistrate, 24-Parganas (South) at Alipore, for hearing the same afresh. Such submision is strongly controverted by Mr. Satpathi, learned counsel for the State. In this connection, he has drawn my attention to the Jimmanama executed by one Nemi Chandra Dana, wherefrom it appears that he took jimma in respect of certain cold storage receipts only and no potatoes were ever given in his jimma. According to him, not a single sack of potatoes not to speak of four thousand packets of potatoes, was ever seized from the cold storage of the petitioner since the owner petitioner himself was not present and no stock register was also made available to the raiding party at the material point of time. It is, therefore submitted by him that there was no seizure of potatoes and as such the question of either removal of potatoes from the godown or retaining the same by any one as Jimmader does not arise. It is further submitted by him that indication of seizure of forty thousand packets of potatoes as shown in the relevant column of FRT appears to be bona fide mistake on the part of the Police Sub-inspector concerned. In fact, there was no seizure of the potatoes in question and as such no quantum of potatoes could be ever returned to the producer by the Investigating Agency as wrongly claimed in the FRT.;