Judgment:
Manisana, J.
1. In this application Under Section 482, Cr. P.C. read with S.401, Cr. P.C., the petitioner has challenged the order dated 8-8-90 passed by the Special Judge Assam and letters dated 8-5-90 of the Inspector (CBI) Gauhati in Crime Case No. RC 23/89 SHG Under Sections 120B and 409, IPC and Section 5(2), PC Act.
2. Facts, -- The Inspector (CBI) Gauhati wrote letters dated 8-5-90 to the Manager of the State Bank of India Shillong, the Manager of the Indian Bank Gauhati, the Manager State Bank of India Aizawl and the Manager of the Gauhati Co-operative Town Bank Ltd. Gauhati directing them not to allow the petitioner, M/s Purbanchal Road Service Gauhati, to withdraw money or property from their respective banks respecting amount deposited by and credit balance and lockers held by the petitioner, which are described in those letters, stating that they have been seized Under Section 102, Cr. P.C. during investigation of the Crime Case No. 23/89 SHG. Thereafter, the petitioner filed an application before the Special Judge Assam for releasing them. The learned Special Judge has rejected the petition by holding that the petition is premature. Hence this petition.
3. Mr. J. M. Choudhury, the learned counsel for the petitioner, has submitted that a police officer has no jurisdiction to pass an order prohibiting a bank with which an accused has an account and a locker not allowing to operate them. The learned counsel has placed reliance on the decision in Textile Traders Syndicate v. State of U.P. AIR 1960 Allahabad 405 : (1960 Cri LJ 871).
4. Section 102, Cr. P.C. provides:
'(1) Any police officer may seize any
property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer-in-charge of a police station, shall forthwith report the seizure to that officer.
(3) Every police officer acting under Sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where' the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.'
5. Under Section 102, the police officer has to report the seizure to the magistrate concerned, and if the property seized cannot be conveniently transported to the Court, the police officer may give custody thereof to any person on his executing a bond undertaking to produce the properties before the Court as and when required. Section 451, Cr. P.C. provides for disposal and custody respecting the property produced before any criminal Court during enquiry or trial. Section 457, Cr. P.C. provides that, whenever seizure of property by any police officer is reported to a Magistrate Under Section 102, Cr. P.C. and such property is not produced before a criminal Court during enquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or delivery of such property to the person entitled to possession thereof. On reading of Sections 102, 451 and 457, Cr. P.C. together, it indicates that the word 'seize' used in Section 102, Cr. P.C. means actual taking possession in pursuance of a legal process. Therefore, prohibiting a hank with which the accused has an account and a locker, not to pay any amount out of the account of the accused to the accused and not to allow the accused to take away property from the locker is not seizure Under Section 102, Cr. P.C. as the 'seizure', as contemplated under Section 102, Cr. P.C. is an act of taking possession of the property in fact, and as such no such order can be passed by a police officer.
6. In Textile Traders Syndicate v. State of U.P., AIR 1960 Allahabad 405 : (1960 Cri LJ 871), it has been held that Section 550 (old) : 102 (new) does not appear to contemplate a police officer prohibiting the payment of a debt by a debtor to the accused person. As long as the money is in the possession of the thief and capable of seizure, it may be open to the police officer to seize it on the ground that it was or was suspected to be stolen property. But once it passes to the hands of the debtor, the money becomes unidentifiable and there can be no question of being seized by the police officer. Therefore, no order can be passed by a police officer Under Section 550 (old) : 102 (new) prohibiting a bank with which the accused has an account not to pay any amount out of the account of the accused to the accused until further order.
7. I respectfully agree with the decision of the Allahabad High Court cited above. For the reasons stated above, the impugned order of the Special Judge and the orders of the police officer (CBI) are hereby quashed. However, considering the facts and circumstances of the case, in the case of lockers, if there is any article which may be found under the circumstances which creates suspicion of the commission of any offence, the police officer (CBI) may take possession of that property in accordance with law within two weeks from today and the concerned banks shall not allow the petitioner to take out any articles from the lockers within the said period of two weeks.