2021 Supreme(Bom) 1088

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
Sunil B Shukre, Avinash G Gharote, JJ.
Angel Click - Appellant
Versus
State Of Karnataka - Respondent
Criminal Writ Petition No. 39 of 2021
Decided On : 07-05-2021

The procedure prescribed under Sections 105 and 101 of the Cr.P.C. is mandatory in nature and not following the procedure would render the search made in violation of the procedure as invalid.

Headnote:

CRIMINAL PROCEDURE CODE - SECTIONS 93, 101, 105 - SEARCH WARRANT - EXECUTION - PROCEDURE - MANDATORY - VIOLATION - EFFECT - SEIZURE - ILLEGAL.

Fact of the Case:

Petitioners, traders carrying on business of sale and purchase of rice, purchased rice and broken rice of Heritage brand from M/s. S. R. Enterprises and V. K. Traders on various dates and kept some of the rice bags in a godown situated at Umiya Industrial Area, Tarodi-Kapsi, Nagpur. Some of the rice so purchased by petitioner No.1 was sold by him to the petitioner No.2, who stored the rice bags in his godown situated at Lihigaon, Kamptee, Nagpur. On 24.12.2020, respondent No.1 armed with a warrant of search and seizure dated 22.12.2020 issued by the learned Judicial Magistrate, First Class, Gangavathi, District Koppal, Karnataka raided these godowns with the aid of respondent Nos.3 and 4 and seized the rice bags stored therein. From the godown of petitioner No.1, 6140 bags of Heritage brand rice and from the godown of the petitioner No.2, 999 bags of Heritage brand rice were seized by the respondent No.1, in execution of the warrant of Search and Seizure. Receipts for seizure of these bags were issued by the respondent No.1. The petitioners made a detailed representation in protest to the Commissioner of Police, Nagpur on 30.12.2020 and requested him to take appropriate action against the said seizure of rice bags made by respondent No.1, which according to the petitioners was illegal and without following due process of law. The petitioners also succeeded later on in procuring a copy of the First Information Report filed by respondent No.5 with Police Station, Gangavathi, on the basis of which offences punishable under Sections 406 and 420 were registered against five accused persons named therein. The petitioners noticed that they were not named as accused in the F.I.R. and yet, as the petitioners submit, the rice bags lawfully purchased by them on making of full payment were directed to be seized by the learned Magistrate at Gangavathi.

Finding of the Court:

1. The Court held that the search and seizure operation conducted by the Karnataka Police under the search warrant issued by Gangavathi Court is vitiated and as such, the petitioners are entitled to get back the possession of the seized goods. 2. The Court held that the procedure prescribed under Sections 105 and 101 of the Cr.P.C. is mandatory in nature and not following the procedure would render the search made in violation of the procedure as invalid. 3. The Court held that the procedure prescribed in Section 101 of the Cr.P.C. is mandatory when the modes of execution of warrant laid down in Sections 78 and 79 are resorted to and without any exception. 4. The Court held that when the mode of execution of warrant referred to in Section 105 is taken recourse to, ordinarily the procedure prescribed by Section 101 for production of seized articles must be followed and it is only in exceptional cases when warranted by fact situation of a particular case that departure therefrom, for reasons to be recorded in writing, can be permitted to be made by the Court getting the warrant executed and that too upon prescription of suitable conditions and adequate safeguards to ensure misuse of powers by the executing officer.

Issues: 1. Whether the procedure prescribed under Sections 105 and 101 of the Cr.P.C. is mandatory in nature? 2. Whether the search and seizure operation conducted by the Karnataka Police under the search warrant issued by Gangavathi Court is vitiated? 3. Whether the petitioners are entitled to get back the possession of the seized goods?

Ratio Decidendi: 1. The Court held that the procedure prescribed under Sections 105 and 101 of the Cr.P.C. is mandatory in nature and not following the procedure would render the search made in violation of the procedure as invalid. 2. The Court held that the procedure prescribed in Section 101 of the Cr.P.C. is mandatory when the modes of execution of warrant laid down in Sections 78 and 79 are resorted to and without any exception. 3. The Court held that when the mode of execution of warrant referred to in Section 105 is taken recourse to, ordinarily the procedure prescribed by Section 101 for production of seized articles must be followed and it is only in exceptional cases when warranted by fact situation of a particular case that departure therefrom, for reasons to be recorded in writing, can be permitted to be made by the Court getting the warrant executed and that too upon prescription of suitable conditions and adequate safeguards to ensure misuse of powers by the executing officer.

Final Decision: The petition was partly allowed. The Court declared that the seizure of the rice bags (6140 rice bags of Heritage brand made from godown of petitioner No.1 and 999 rice bags of Heritage brand made from the godown of petitioner No.2 situated within Nagpur district) is illegal. The respondent No.1 was directed to restore these rice bags to the petitioners by bringing them back to the places from where they were seized, within two weeks. Respondent Nos.1, however, was at liberty to obtain a fresh search warrant and execute it afresh in accordance with law.