CRR 691 of 2003
18.07.2013

Court No.29                     Akthar Hossain & Anr.
Item No. 3
                                          Vs.
                               The State of West Bengal


              Mr. Milon Mukehrjee, Advocate
                                                                 .... For the Petitioner
              Ms. Faria Hossain, Advocate
                                                                     .... For the State

This revision was launched for quashing a proceedings of G.R. Case No. 237 of 2002 arising out of Raghunathpur Police Station Case No. 49 of 2002 dated 03.09.2002 under Sections 413/414/278 of the Indian Penal Code and Sections 15/16 of the Environmental Protection Act and Section 39 of the Air Prevention and Control of Pollution Act pending before the Sub-divisional Judicial Magistrate, Raghunathpur, Purulia. In the background of this revision the fact in brief is as follows:-

The petitioners have been arraigned as accused in Raghunathpur Police Station Case No. 49 of 2002 dated 03.09.2002 for their alleged involvement in commission of offences punishable under Sections 413/414/278 of the Indian Penal Code and Sections 15/16 of the Environmental Protection Act and Section 39 of the Air Prevention and Control of Pollution Act. The said case has been registered suo moto on the basis of a complaint lodged by Sri Samar Banerjee, Sub Inspector, Raghunathpur Police Station.

The allegations levelled in the complaint are inter alia to the effect that the complainant upon receipt of a secret information that three soft coke coal factory owners of Kargali, Police Station - Raghunathpur were collecting steam coal from persons who went to Jharkhand State and collected stolen coal by fraudulent means. To work out the information, the complaint along with force went to sn Samrat Soft Coke Industries. Over there they found huge quantities of steam coal, soft coke coal and coal dust lying at the industry premises and some stag of steam coal were burning in open place inside the industry premises making the atmosphere noxious to health. The complaint also found one truck bearing registration no. WB-37/7257 loaded with stem coal. On query, it was found that the petitioners who were preparing soft coke coal in the industry premises, after purchasing stolen stem coal from a cyclist who collected coal stealthily from Jharkhand state. It was further alleged that the nature of business carried on by the petitioners were clandestine and that their way of business was a major pollutant to the air as huge quantities of steam coal were burnt in open places inside the industry premises. The complainant seized steam coal and soft coke coal of 96 M.T. and 320 Kgs and Coal dust 12 M.T., 420 Kgs., 5 cycles loaded with steam coal, 5 M.T., 200 Kgs. And 11 gunny bags, one truck bearing registration no. WB-37/7257, 15 M.T. 420 Kgs. Steam coal from Samrat Soft Coke Industry premises. The seized coal and trucks were shifted to Para Police Station for safe custody weighing the same at Weigh Bridge of Dubra. The petitioners are completely innocent and in no way connected with the commission of alleged offence.

Being apprehensive of arrest the petitioners preferred an application under Section 438 of the Code of Criminal Procedure before the Court of learned Sessions Judge, Purulia. The learned Court allowed the prayer of the petitioners and subsequently the petitioners prayed for regular bail and the learned SDJM, Raghunathpur also allowed their prayer.

After completion of investigation, police has submitted charge- sheet under Sections 413/414/278 of the Indian Penal Code and Sections 15/16 of the Environmental Protection Act and Section 39 of the Air Prevention and Control of Pollution Act.

The petitioner submitted that Samrat Soft Coke Industries are registered as SSI/SSSBE Unit for the manufacture of soft coke. The industry is registered with Government of West Bengal, Directorate of Cottage and Small Scale Industries and bear registration no. 3211610315. They further submitted that they have all necessary pollution certificates issued by the West Bengal Pollution Control Board as well as the 'No Objection Certificate' from the local Panchayat. So, allegation levelled against the petitioners regarding polluting the air by burning steam coal in open areas does not arise. Learned Counsel for the petitioners submitted that the very basis of taking cognizance of the case itself is bad and the case is not at all maintainable. The second submission is that after appearance before the Court, the present petitioners floated a petitioner for return of the seized articles. Consequent upon a direction given by the Court below, the I/O who lodged suo motu complaint, caused an enquiry and submitted a report to the effect that the petitioner is the owner of the seized quantum of goods. So, practically there is nothing left in this case. He added that the spirit of the decisions reported in 1) CRA 113 of 2001 (Nilmadhab Majhi & Ors.), 2) CRR 3752 of 2005 (Kamal Kumar Das & Ors.) 3) CRR 2143 of 2007 (Kamal Kumar Das), 4) CRR 2774 of 2008 (Binod Kumar Agarwal & Ors.) 5) CRR 425 of 2009 (Binoy @ Subhash Agarwal & Ors. 6) CRR 3355 of 2009 (Sisir Ghosh & Ors.) and 7) CRR 1193 of 2001 (Sushil Kumar Jain) go to suggest that the entire ownership is proved in a counter manner from the side of the prosecution. The Case has no legs to stand out. Heard the learned Counsel of the State also.

The fact remains the heard of a criminal case is the complaint lodged by the complainant and taking of cognizance. He in this case I find that the complainant is a police inspector who suo motu lodged the complaint simply on the basis of his assumption tht the goods in question are stolen property. In this regard, Sections 410 and 414 of the IPC are very much relevant. The very plinth of such offence is the ownership except the accused persons none else not to speak of the S/I of police who lodged the complaint is rushing to the Court to prove that the seized goods belong to him or rather owned by him. To the contrary the accused produced valid document in regard to possession of said seized articles. It goes without saying being satisfied the I/O in obedience to the direction of the learned Court below submitted a report for release of the goods in favour of the petitioner but still then the learned Magistrate took cognizance and charge-sheet remained in the record.

In such a position, learned Counsel for the petitioners contended that the cognizance is bad in law and in support of his contention he placed before me a good number of judgments as cited above. I have carefully considered the submissions as well as the material placed before me.

Suspicion, however, strong it might be cannot take the place of proof. The charge-sheet prima facie shows tht the I/O believed that the seized articles were stolen. He did not name actually who is the owner or producer of the seized articles.

This being the position the case becomes lame at the very first moment of its birth.

Therefore, I hold that the presumption has no legs to stand upon. Accordingly, the revision stands allowed and the proceedings IN G.R. Case NO. 237 of 2002 arising out of Raghunathpur P.S. Case NO. 49 of 2001 dated 03.09.2002 stands quashed.

(Toufique Uddin, J)