Seizure of goods is essential in a case under Section 379/411 IPC and must be proved beyond all reasonable doubts.

SIDDHARTHA CHATTOPADHYAY, J.

1. This appeal is directed against the judgment passed by a learned Single Judge of this Court in connection with Writ Petition No. 5130 (W) of 2004 wherein and whereunder the Learned Trial Judge held that the punishment imposed against the appellant by the authority concerned does not call for any interference.

2. Feeling aggrieved and dissatisfied with the said finding of the Learned Trial Judge, the appellant came before us and ventilated his grievances that the Learned Trial Judge misconstrued the provisions of law and failed to appreciate the evidence taken by the Enquiring Authority and the punishment imposed by the disciplinary authority in its proper perspective. He also categorically submitted at the time of hearing that the Learned Trial Judge did not apply his mind nor had gone through the evidence recorded by the Enquiring Authority so far as seized articles are concerned.

3. In the interest of effective adjudication, factual aspect needs to be restated. Filtering out unnecessary details, fact of the case in a capsulated form is such that the appellant herein was a constable of C.I.S.F. and while he was leaving his place of duty during wee hours i.e. (intervening night of 18th April/19th April, 2001), he was found in unauthorized possession of 25 packets bearing Koya, made in Japan, 813 numbers of micro-button cells and 19 packets door viewers while checked by ASI, K.R. Patle. Such act of the appellant, according to his authority, amounted to misconduct, violation of rules and unbecoming of a member of the force.

4. Departmental proceeding was initiated against him, without appointing any Presenting Officer Enquiring Authority himself collected the materials against the charged employee (herein the appellant) and he himself summoned notices to the witnesses and the charged employee. After taking evidence, the Enquiry Officer found the appellant guilty. His such finding was established by his higher authority, who had been pleased to dismiss the charged employee.

5. Against the said order, the charged employee i.e. this appellant had come before the Learned Trial Judge who had also endorsed the views of the disciplinary authority.

6. At the time of hearing this appeal, Learned Counsel appearing onbehalf of the appellant vehemently submitted that the judgment passed by the Learned Trial Judge absolutely is without any basis and the law settled by the Hon’ble Apex Court has been misconstrued by His Lordship. He further submitted that the alleged charge framed by the disciplinary authority was such that this appellant was found in unauthorized possession of certain articles of the C.I.S.F. unit. But the judgment passed by the Chief Metropolitan Magistrate is quite different. The Learned Chief Metropolitan Magistrate, Calcutta after taking evidence of prosecution witnesses came to the finding that there were no labels pasted on the articles alleged to have been seized from the possession of the present appellants. PW-1 of criminal case (Shri Gopal Krisnan) stated that there were labels pasted on the articles but at the time of hearing before Learned Chief Metropolitan Magistrate he noticed that no labels were pasted there. Accordingly, Learned Chief Metropolitan Magistrate held this presupposes that the articles showing seized articles (Ext. 4) labelling the same to be the stolen property has not been actually so labelled as such by the C.I.S.F. authority. This is no doubt, an uncementable fissure which cannot be bridged so to rope in the accused to the allegation of culpability of offence under Section 411 I.P.C. as alleged against him.

7. It is trite law that in a case under Section 379/411 IPC seizure of goods is essential and that is to be proved beyond all reasonable doubts. Here in this case the prosecution could not establish that properly and for which the appellant was honourably acquitted by a reasoned judgment.

8. Although in a mandamus appeal, High Court normally does no