Neither District Administration nor Police have any powers to seize immovable property for violation of lockdown orders

The present writ petition has been filed for quashing the order as contained in memo no.705/GO dated 26th April, 2020 passed by the Sub Divisional Magistrate, Dhalbhum, Jamshedpur- respondent no.2 with a further direction to the respondents to remove the seal from "The Alcor Hotel", situated at Holding No.4, Ramdas Bhatta, opposite Indian Oil Petrol Pump, Bistupur, Jamshedpur, District East Singhbhum (hereinafter to be referred as 'the said premises')[Para No.2]

    The factual background of the case as stated in the writ petition is that the petitioner owns the Hotel Alcor, which provides facilities such as restaurants, bar, spa etc. On 25th April, 2020, a first information report being Bistupur P.S. Case no.87 of 2020 was registered under Sections 188, 269 & 270 of the Indian Penal Code; Section 54 of the Disaster Management Act, 2005; and Section 3 of the Epidemic Diseases Act, 1897, alleging that during the lockdown period, a raid was conducted on 25th April, 2020 in the Hotel Alcor wherein it was found that the spa was opened and few people including two girls were present in the conference hall, adjoining the spa. Seeing the raiding party, some persons fled away, however, three persons were apprehended on spot. Thereafter, the said premises was sealed on 26th April, 2020 by the Special Officer, Jamshedpur Notified Area Committee and the Executive Magistrate-cum-Incident Commander, East Singhbhum, Jamshedpur in terms with the office order as contained in memo no.705/GO dated 26th April, 2020 passed by the respondent no.2. Another first information report, being Bistupur P.S. Case no.88 of 2020 was registered under Sections 3, 4, 5 & 6 of the Immoral Traffic (Prevention) Act, 1956 against one of the Directors of the petitioner- Company, namely, Rajiv Singh Dugal and other accused persons on 27th April, 2020, alleging therein that one Sharad Poddar had kept a lady, namely, XXXXXXXXXX in the said hotel for last one month and had been establishing physical relationship with her since then. The petitioner vide letter dated 7th May, 2020 requested the Deputy Commissioner, East Singhbhum, Jamshedpur- respondent no.1 to unseal the hotel premises, so that day to day business of the petitioner-Company and firms having their registered offices located at Alcor Hotel Premises could function in a regular manner. The copies of the said letters were also sent to other authorities, however, no action in this regard was taken. The petitioner also served a reminder vide letter dated 15th May, 2020 to the respondent no.1, however, the same was also not responded. Hence the present writ petition.[Para No.3]

    To appreciate the rival submissions of learned counsel for the parties, it would be relevant to refer the judgment of the Hon'ble Supreme Court rendered in the case of Nevada Properties Private Limited through its Directors vs. state of Maharashtra & Anr., reported in 2019 SCC Online SC 1247. The relevant paragraphs of the said judgment are quoted as under:-

"20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word 'seize' would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure. Equally important, for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the charge sheet. The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power conferred on the Criminal Court vide Sections 451 to 459 of the Code. The expression 'circumstances which create suspicion of the commission of any offence' in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not 'any property' is required to be seized. The word 'suspicion' is a weaker and a broader expression than 'reasonable belief' or 'satisfaction'. The police officer is an investigator and not an adjudicator or a decision maker.This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences. In case and if we allow the police officer to 'seize' immovable property on a mere 'suspicion of the commission of any offence', it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side (See Binod Kumar v. State of Bihar (2014)10SCC663). Thus, it will not be proper to hold that Section 102 of the Code empowers a police officer to seize immovable property, land, plots, residential houses, streets or similar properties. Given the nature of criminal litigation, such seizure of an immovable property by the police officer in the form of an attachment and dispossession would not facilitate investigation to collect evidence/material to be produced during inquiry and trial. As far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and 146 of the Code can be invoked as per and in accordance with law. Section 102 of the Code is not a general provision which enables and authorises the police officer to seize immovable property for being able to be produced in the Criminal Court during trial. This, however, would not bar or prohibit the police officer from seizing documents/papers of title relating to immovable property, as it is distinct and different from seizure of immovable property. Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a Civil Court.

21. In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer under Section 102 of the Code to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property."[Para No.12]

    The Hon'ble Supreme court in the aforesaid judgment has held that Section 102 Cr.P.C. postulates seizure of the property. However, an immovable property cannot, in its direct sense, be seized, though documents of title etc. relating to immovable properties can be seized, taken into custody and produced. Language of Section 102 Cr.P.C. does not support the interpretation that the police officer has the power to dispossess a person who is in occupation, to take possession of an immovable property in order to seize it.[Para No.13]

    It is, thus, well settled that the power of sealing of property carries civil consequences. A person can be deprived of the property only by following due procedure in accordance with law. No person shall be deprived of the right of property, except by the procedure prescribed under law.[Para No.16]

Accused is entitled for benefit of doubt when there is unexplained delay in forwarding seized article to the court

The alleged occurrence was on 15.11.2011. Ext.P8 property list shows that the seized substances were produced in the court only on 19.11.2011. The prosecution has not explained the reason for the delay in producing the seized substances, including the samples, before the court. It is not explained what prevented the detecting officer or the investigating officer to produce the seized articles in the court immediately after the seizure. In view of the unexplained delay in producing the seized articles before the court, tampering with such articles at the police station cannot be ruled out.[Para No.39]

   

    There is also no reliable evidence as to who was having the custody of the seized articles till they were produced in the court and in what condition they were kept in the police station. PW3 has given evidence that the properties might have been kept in the police station during the period between 16.11.2011 to 18.11.2011 and they would have been in the custody of the Station Writer. But, the evidence of PW6 Circle Inspector, who conducted the investigation of the case on the date of occurrence, is that the properties were in the custody of PW3 Sub Inspector till they were produced in the court. He has stated that he had received the properties but he entrusted them with the Sub Inspector himself for producing them before the court.[Para No.40]

    To put it in a nutshell, the unexplained delay in producing the seized substances before the court and absence of evidence as to how and in what condition the seized substances, including the samples, were kept in the police station till the date of their production in the court alongwith the circumstance that there is absence of evidence regarding the nature of the seal used by the detecting officer for sealing the sample packets, create doubt as to whether seizure of the substances was effected from the accused in the manner alleged by the prosecution. The benefit of that doubt shall be given to the accused.[Para No.45]