The paramount consideration was whether the seized item was stolen property, and the finding of facts had to be arrived at by the court below based on evidence.

1. Heard learned counsel for the petitioner and he State.

2. The prayer of the petitioner is for quashing the First Information Report vide Jalalgarh Police Station Case No. 16 of 2010 registered on 26.3.2010 for the alleged offences under Sections 413, 414/ 34 of the Penal Code and Section 135 of the Customs Act, upon seizure of 496 Kgs. of bete! nuts contained in -62 bags, pending in the Court of the Special Judge, Economic Offences, Purnea. The further prayer is for directing the respondents to pay the cost for initiation of the aforesaid police case registered on the basis of inadmissible statement and also for restitution of the injury and pecuniary loss. Pending disposal of the writ application, the petitioner prays for release of the aforesaid betel nuts.

3. A counter affidavit as also a supplementary counter affidavit has been filed on behalf of the State opposing the prayer of the petitioner.

4. Learned counsel appearing for the petitioner submits that the petitioner is the owner of the betel nuts in question and he, being the owner and consignor of the betel nuts, has no grievance against the Driver, Khalasl and the consignee of the goods. It is further submitted that the petitioner has not lodged any case of theft. As such in absence of any case registered for the theft, the case under Section 413 or 414 of the Penai Code could not have been registered. Accordingly, the prayer is that since the petitioner is the owner, he is entitled to get back the seized betel nuts notwithstanding the pendency of the aforementioned criminal case.

5. Learned counsel appearing on behalf of the State, on the other hand, submits that the police after investigation of the said case have submitted charge-sheet for the offences under Sections 413, 414/ 34 of the Penal Code and Section 135 of the Customs Act. It is further submitted that as to whether the betel nut in question is a stolen property or not is the matter to be considered by the court below. It is also submitted that at the time of the seizure, no document with respect to the betel nuts was produced on being demanded by the police and as such, the seized items cannot be released to the petitioner.

6. Before considering the rival submissions of the parties, it will be fruitful to quote Sections 413 and 414 of the Penal Code:

"413. Habitually dealing in stolen property.Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

414. Assisting in concealment of stolen property.Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

7. On perusal of the aforesaid provisions of law, it would appear that the paramount consideration is as to whether the seized item is a stolen property or not. Constituting the offence will depend on the finding arrived at on the basis of the evidence as to whether the seized item is a stolen property or not. This finding of facts has to be arrived at by the court below on the basis of the evidence and not in a writ proceeding. A reference in this connection may be made to a decision of this Court in the case of Bishan Prasad V/s. State of Bihar, reported in 1968 Cri.L.J. 1670 as also in the case of Radha Poddar V/s. State of Bihar, reported in 1996(2) BLJ 310.

8. I am unable to accept the submissions made on behalf of the petitioner that in absence of any case registered for the offence under Section 379 of the Penal Code, the offence under Sections 413 and 414 cannot stand. In my opinion, committing of theft Is one thing and lodging a case by the person aggrieved is another thing and, as such, as claimed