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| CJM entrusts ornaments to owner, Pr Session's judge stays order | | Seizure of Jewellery lands SHO into trouble | | early times report
JAMMU, Feb 24: The Chief Judicial Magistrate (CJM) Jammu has taken a strong exception to failure of SHO Peer Mitha to seize golden jewellery worth Rs 15 lakh, in accordance with rules prescribed by law. The case pertains to two counter FIRs FIR no. 7/2013 Police Station Peer Mitha Jammu lodged by Aradhana Kumari and other FIR no. 8/2013 lodged by Tapeesh Dutta. The court had to decide which party was entitled to the seized property.
Passing strictures against the SHO and agreeing with the counsels in totality, the learned magistrate held: " As per police report the Jewellery is not formally seized in either of the case by the police.
In fact SHO concern has entrusted it to one Khulbushan Anand President Swarnkar Sang Jammu. The act of the SHO concern is beyond his authority and raises many questions. The moment SHO took the Jewellery in his custody he was legally bound to prepare a proper seizure memo of the same and proceed under law."
The court further held that the SHO appears to be of village Panchayat which is unacceptable. "Moreover, the SHO acted illegally in as much as it is only the Magistrate who could have issued the orders for its disposal and no such power or authority has been invested to the police in this regard. It is to be seen whether the entrustment of the property by SHO would amount to his constructive possession over the property. Admittedly Kulbushan Anand to whom the property was entrusted is the custodian on behalf of the SHO. He has no personal interest in the property. He has to act on the directions of the SHO.
Both the counsels are unanimous on the point that the property is in the constructive possession of the SHO and it would deem to be a seizure under law. This court is totally agreed with the Ld. Counsels on this point of the case...." The Court also observed: .." In case FIR No. 7/2013 it is alleged by the applicant Aradhana Kumari that parties were in good terms with each other. In the month of March/April 2012 the husband of the complainant requested the accused Tapeesh Dutta for help in opening a bank locker in Central Co-operative Bank as according to accused the manager was known to him.
The golden jewellery was taken by the complainant and the accused accompanied her to show the locker. The locker could not be opened and accused offered to keep the gold in her own locker and stated that it shall be delivered to her when the need arises. On this assurance the complainant gave the gold to the accused. It is alleged that on about 5/6 January, 2013 the accused came to the house of the complainant and tried to molest her and thereafter accused threatened in case she would not succumbed to the pressure then she could not get the gold back. It is also stated that accused has concocted a story that he has advanced a loan of Rs 10 lakhs. Thereafter on January 12, 2013 accused approached one Jeweler at Satwari to sell the gold items but ultimately she was successful in getting the gold back from the shop of one Jawahar Jeweller."
In case FIR No.08/2013 it is alleged that accused Aradhana approached the complainant and requested him to advance a loan of Rs 10 lakh and in lieu of this the accused offered to keep her gold ornaments as a security for the loan. The relations between the parties were good and as such the complainant paid the said amount on different dates. It is also stated that complainant agreed to pay an interest of Rs 25,000/-
per month to the complainant which was paid by her till November, 2012 and thereafter she stopped the payment and instead told the complainant to sell the gold items in order to realize the loan
advanced. That for the sale of the ornaments the accused suggested the name of one M/s Jawahar Jeweler who was known to her. It is stated that he along with his wife accompanied the accused and her husband for that purpose. It is alleged that accused suddenly tried to take away gold ornaments but his wife stopped her. The goldsmith did not return the gold to the complainant...."
The Court further observed that the question that needs consideration is as to who is entitled to the possession of the aforesaid property? Admittedly Aradhana Kumari is the owner of the property. Tapeesh Dutta has claimed that property was delivered to him by Aradhana as security in lieu of loan of Rs 10 lacs paid by him. However, it is all verbal.
No documentary proof has been placed to substantiate his plea. After considering the arguments of both the sides, the Court observed that keeping in view the admitted fact that applicant Aradhana Kumari
is the lawful owner of the aforesaid property, she is entitled to the possession of the same.
Accordingly SHO Police Station; Pir Mitha, Jammu is directed to release the aforesaid property in favour of the applicant Aradhana Kumari who is complainant in case FIR No. 07/2013 on supardnama with
the following conditions:-
1. That the supardar shall not dispose and create any third party interest in the aforesaid property till further orders from the court.
2. That the supardar shall ensure the safe custody of the property and shall not damage it and commit any act which may diminish the value and utility of the same.
3. That the supardar shall produce the aforesaid property in the court as and when directed so.
4. SHO concern shall before releasing the aforesaid property get it properly weighed, prepare the inventory of the same and photographed it at the expenses of the supardar. The photographs shall be attested by the supardar with the seal of the police station concern.
5. That the supardar shall submit an undertaking in the regard in the court. For the aforesaid reasons the applications of applicant Aradhana is allowed in terms of aforesaid conditions whereas that of applicant
Tapeesh Dutta is dismissed. Both the application are disposed of accordingly and shall be consigned to records after its due compilation...."
While the order of the CJM Jammu dated 23.2.2013 was complied with and the undertaking filed by owner of the jewellery Aradhana Kumari, in the meanwhile against the said Order of the CJM Jammu Tapeesh Dutta filed a Cr Revision Petition before the Pr Sessions Judge and assailed this order on several counts. The Pr Sessions Judge Jammu Jang Bahadur Singh Jamwal today entertained the Cr Revision petition and issued Notice to the respondents, State through P/S Peer Mitha, Jammu, president Swarankar
Sangh and Aradhana. The Court admitted the Revision petition and stayed the operation of
the impugned order till further orders. The Pr Sessions Judge also summoned the record of the Trial Court and fixed the matter for 18.3.2013.
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