IMPORTANT POINT
Under Section 102(1) of the CrPC the police have no power to seal the immovable property and the word seize under Section 102 of the CrPC used under Section 102 of the CrPC would mean only actual taking possession of the movable property.

JUDGMENT

Sanjay K. Agrawal, J.—The jurisdiction of this Court under Article 226 of the Constitution of India has been invoked by the petitioner herein stating inter alia that the petitioner is a scrap dealer running his business in the name and style of Nisar Traders and his shop situated at Hirri Mines, Parsada, District Bilaspur has been locked and sealed by respondent No.4 without jurisdiction and without authority of law, it may be directed to be unsealed by issuance of appropriate writ or direction.

2. This Court has directed the State to file affidavit on 5-7-2018 and affidavit has been filed by the State relying upon the provisions contained in Section 102 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) stating inter alia that shop of the petitioner has been sealed for the reason that the properties stored in the shop in relation to which there existed suspicion of some cognizable offence having been committed in relation thereto, could not be conveniently transported to some other place or because of the difficulties in securing proper accommodation for the custody thereof. The petitioner has suppressed the fact that he has been served with notice under Section 91 of the CrPC.

3. Mr. B.P. Sharma, learned counsel appearing for the petitioner, submits that under Section 102 of the CrPC, immovable property cannot be sealed by the Station House Officer in exercise of power under Section 102 as such, the order of sealing is without jurisdiction and without authority of law.

4. Mr. Ratan Pusty, learned Government Advocate appearing for the State/respondents, submits that since the property kept in the shop in question to which there is apprehension of having been committed cognizable offence, could not be conveniently transported to some other place, therefore, the shop itself has been seized.

5. I have heard learned counsel for the parties and considered their rival submissions made herein-above and gone through the record with utmost circumspection.

6. In order to appreciate the point in dispute, Section 102 of the CrPC is extracted herein-below:—

“102. Power of police officer to seize certain property.—(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.

Provided that where the property seized under sub-section (7) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.”

7. The question for consideration would be, whether in exercise of power under Section 102 of the CrPC, the police officer is empowered to seal the shop of the petitioner (immovable property of the petitioner)?

8. In the matter of Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood through its Power of Attorney Holder Mr. Rajesh Baxi Chetna Propertie