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TMI Blog1997 (10) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. The Nizam severed his relations with him (the petitioner) and issued a letter dated May 27, 1995, withdrawing the powers which he had given to him (the petitioner). There has been some dispute, however, with the Taj Group of Hotels about which some details are stated in the petition and which appear to have given occasion for some communications with the police including one by the Nizam and it is alleged on the February 4, 1996, while the petitioner and his wife were at Delhi the respondent police officials along with about 60 policemen, all subordinates to the third respondent, according to the petitioner, "raided my residential house at Jubilee Hills hearing Plot No. 330, Road No. 25". According to the petitioner, there was no formal search warrant. No authority was shown to his staff at his house and the entire premises were ransacked from 10 a.m., for about 13 hours. According to the petitioner not only that the staff were manhandled, intimidated and threatened, the officials and men accompanying them locked his three year old son in a room for over six hours along with a neighbour's child. Following the above mentioned raid at the premises of the petitioner the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riter and Co., the fourth respondent along with his cronies raided the said premises. At that time he was the Deputy Commissioner of Police, SIT (Communal). Even at that time, he had no jurisdiction to interfere in this matter. In spite of showing the proper documentation, the fourth respondent and his subordinates beat them mercilessly and took them to the police control room and they were held there for some time. My wife who had delivered a baby boy 40 days prior to this incident, was made to suffer for nearly ten days of terror in the hands of the fourth respondent and his coterie. I being absent from India was forced to take an anticipatory bail. False and baseless F.I.R. were issued with my wife, Barkat Ali, Pir Ali and myself as the accused. My wife and others were arrested and released on bail. The torture, inhuman act of goondaism, the sadistic beating of Barkat Ali and Pir Ali who are both respected businessmen, without any rhyme or reason shows the callous and corrupt character of the fourth respondent. If this act had been performed by any other person not hiding under the guise of a police uniform, he could have been charged for criminal offences." The petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved the information about seizure of antiques from the house of the seventh respondent and that the investigating team had proceeded to the petitioner's house, I suggested to the fourth respondent that it is better that he should go and supervise the search and seizure operations at the petitioner's house as it may not be desirable to leave the whole matter of seizure of very valuable articles and bringing them with care and caution to the officials of lower rank. Accordingly, the fourth respondent went to the place of the petitioner where search and seizure of the antiques was taking place. I further submit that after some more time after the seizure of the antiques from the petitioner's house, they too were brought to the office of the Deputy Commissioner of Police, Detective Department. Some pressmen were still there when I saw those articles in the Deputy Commissioner of Police, D.D.'s room. Except mentioning the fact of seizure to the pressmen who happened to be present there, I did not issue any press note and the press clipping submitted to the court by the petitioner also does not say that I issued any official press note. Except one or two newspapers who wrongly mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as reiterated his complaint and sought necessary action under sections 403, 406 and 420 of the Indian Penal Code, and said that the Chief Minister directed the Director-General of Police to take prompt action in the matter. The Director-General of Police in turn communicated the Government letter through his memorandum dated December 26, 1995, requiring that action should be taken within 15 days. The matter was thus entrusted to the Deputy Commissioner of Police, Detective Department, and is under investigation. This respondent has stated that he has come to know of the above facts after the filing of the writ petition and, however, the search of the petitioner's premises and seizure of certain articles was not consequential to the complaint of the Nizam or any intervention of the so-called Taj group. He has, however, stated about the cases involving the Taj group of hotels and events leading to those cases in some details. The relevant facts therein are as under: "On February 4, 1996, I received confidential credible information that some persons connected with the Bombay blast case were put up in room No. 210, Sai Prakash Hotel, Nampally, and also that attempts were being made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cine artiste and resided in Bombay for nearly 30 years. Mr. Ayubi got in touch with Khan Abdul Rub, a jewellery merchant of Bombay. Then Khan Mohammed Rub accompanied by his friend Hatim Taber Jamnagarwala, another businessman, arrived from Bombay and were received at the airport by Mohd. Khaleel, Mohd. Afsar and Sultan Ahmed Ayubi and put up in rooms Nos. 209 and 210 in Sai Prakash Hotel, Nampally. The advocate, A. Shireesh, had come at 2 p.m. on February 4, 1996, and handed over one gold cot leg studded with precious stones and left. The Bombay businessmen were examining the articles. At that time the police entered. I then sent my sub-inspector to bring the advocate A. Shireesh. The sub-inspector telephoned after some time that Shireesh had stated that the gold cot leg was given to him by Ram Bharose Gupta and he was informed by Gupta that this and several other articles had been given to him by S. H. Javeri and he further inferred that he was bringing Shireesh along. I immediately contacted my superior officer Dy. Commissioner of Police, Detective Department, and suggested that as the proceedings at the hotel were likely to consume some time, a suitable force should be urgent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's house. I informed him that regular search and seizure operations would be conducted next morning and cautioned him that no valuable article should be removed from his house. I, as the investigation officer, continued my investigation and the residence of Sri Ram Bharose Gupta at Banjara Hills, Hyderabad, was searched on February 5, 1996, at 8. a.m., in the presence of panchas as per the procedure under section 165 of the Criminal Procedure Code. I seized (44) items of property of a value of about Rs. 4 crores 21 lakhs which are suspected to be stolen property. The search party consisted of 13 persons. After concluding the search at Ram Bharose's residence, the same search party went to the house of S. H. Javeri at plot No. 330, Road No. 25, Jubilee Hills, along with panchas and started the search at 12 noon on February 5, 1996. The search was conducted as per the procedure laid down by law in the presence of panchas and the staff member of S. H. Javeri by name Sri Mohd. Abdul Quddus, I seized (42) items of property of the value of Rs. 3 crores 45 lakhs including one unlicenced colt gun of U.S.A. make and a champagne liquor bottle (full) and some loose liquor in an antique bott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he is entitled to compensation. It is agreed at the Bar that the court can seek investigation into the above by an independent agency for its satisfaction before any order is made in the writ petition and the name of Sri H. J. Dora, Additional Director-General of Police, CID, Hyderabad, is suggested as the person who should be entrusted with the work. We accordingly appoint Sri H. J. Dora, Additional Director-General of Police, CID, Hyderabad, to investigate and report with all relevant materials on the two questions, as above, and in the course of the investigation verify the truth or otherwsie of the statements in the writ petition, counter affidavits and other materials including affidavits of certain persons/witnesses filed on behalf of the respondents as well as the petitioner. Sri Dora shall also verify and investigate into the genuineness of the document which is kept in the sealed cover and photo copies of which have been made available to learned counsel for the parties. The Registrar (Judl.) is directed to hand over the cover with the document to Sri Dora along with the copies of the relevant records. Sri Dora shall report to the court, as directed above, within six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the police party also recovered one old fire arm of 1883 vintage and also a full bottle of champagne. It is interesting to note that in the seizure memo on page 2, the weapon is put as item No. 4 at the bottom of the page. Item No. 5 a full bottle of champagne is indicated above the weapon. In page No. 3, the next page, again item No. 5 continued up to item No. 23 indicating all the articles seized in the house. It is very clear that these two items, viz., the long fire arm and the liquor bottle are interpolated and not part of the original seizure report. A change in the sequence of numbers clearly indicates that they seized only 42 whereas if we include these two, it becomes 44 items : 4.... the letter written by Sri Jaya Rao, Inspector, duly signed by him, addressed to the Director, Archaeology Department, Government of A. P. In this letter, the inspector mentioned that they have raided the premises of Shri S. Javeri on February 4, 1996, and they found some antiques... This letter was sent to the Forensic Science Laboratory along with the admitted and sample handwritings of the Inspector, Sri Jaya Rao, and the report from the F. S. L. indicates that the letter was signed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores were seized from the premises of the petitioner that the taxing authority served notice upon the investigating officer who allegedly had the custody of the seized valuables under section 132A of the Income-tax Act and, obtained possession and custody of the allegedly seized valuables from the house of the petitioners. Before, however, we would deal with the case whether the seizure under section 132A of the Income-tax Act by the respondents in Writ Petition No. 17700 of 1996 of the properties from the alleged custody of the police is legal and valid, we may state that the so called investigation has ended in the submission of a final report under section 173(2) of the Code of Criminal Procedure, 1973, by the fourth respondent hereinbefore the 21 Metropolitan Magistrate stating that no offence either under, section 381 of the Indian Penal Code, or under the Arms Act or under the Antiques and Art and Treasures Act are made out and in view of the above a memo has been filed on behalf of the petitioners restricting the relief in the writ petition to directions to the respondents to return to them the articles and cash which were seized in connection with Cr. No. 26 of 1996. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s alleged by the petitioners a false case has been registered which has since been reported to be "not true" in the final report under section 173 of the Code of Criminal Procedure, 1973, and whether the respondents have made themselves liable for compensation or at least return of all the articles/properties seized from the house of the petitioners and allegedly handed over by them to the income-tax authorities. There are some additional affidavits, some counter affidavits, reply affidavits, additional counter affidavits, newspaper cuttings and materials on the one hand to show that the search and seizure were effected as alleged by the petitioners on February 4, 1996, and on the other hand as alleged by the fifth respondent following the trial after the search of room Nos. 209 and 210 in Hotel Sai Prakash at Nampally and the seizure of a gold cot leg studded with precious stones which occurred on February 4, 1996, search and seizure of the residence of Sri Ram Bharose Gupta and Sri S. H. Javeri were effected on February 5, 1996, including that of one Mr. Akbaruddin Owaisi s/o Sultan Salauddin Owaisi, M.P., in support of the latter statement of facts, which have ceased to be rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein was illegal and unauthorised and notices accordingly issued were illegal and without jurisdiction. When called upon to show cause in the said writ petition respondents Nos. 5 and 6 have come forward with the plea that they have acted under section 132A(1)(c) of the Income-tax Act and obtained possession of the seized assets from the police as contemplated under sub-section (2) thereof. Before we deal with the question before us, we are tempted to remind ourselves of the observations of Justice Brandeis in Olmstead v. United States [1928] 277 US 438, about the Government of the United States : "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example... If the Government becomes a lawbreaker, it breeds contempt for law ; it invites every man to become a law unto himself ; it invites anarchy." Yet another judge in Mapp v. Ohio [1961] 367 US 643, has expressed in a case where the State tried to use in evidence the materials gathered as a result of unlawful search : "Our decision founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect to the further orders of the court as to the disposal of the same. Assuming, although it is not correct, that the fifth respondent (in Writ Petition No. 4926 of 1996) had information about the properties with the petitioners which created suspicion of the commission of offence and he accordingly seized them he was duty bound to report the seizure to the magistrate having jurisdiction and to transport the same to the court or to give custody thereof to any person on his executing a bond and 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. Section 457 of the Code of Criminal Procedure is a provision under which whenever the seizure of property by any police is reported to a magistrate and such property is not produced before the court during an enquiry or trial, the magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and protection of such property. Sub-section (2) thereof provides, "I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the highly exaggerated value of the property seized from the custody of the petitioners by the police shown to be worth crores of rupees gave wrong signals to the Income-tax Officers, and they thought there was a tax evader caught in the net of the police and there was a need to enforce the penal provisions of revenue loss as in the Wealth-tax Act and the Income-tax Act for realisation of the taxes and penalties. We appreciate, however, that although late there has been realisation of the wrong done at some place to the petitioners and the income-tax authorities have got the properties allegedly seized from the custody of the petitioners evaluated and found to their dismay that all the properties of the seizure list even if evaluated liberally would not exceed Rs. 15 lakhs and thus they are not exigible. In addition thus to the report of the Additional Director-General of Police, which has been submitted as directed by this court, and the final report under section 173(2) of the Code of Criminal Procedure, 1973, information to the Income-tax Officer that properties worth crores of rupees were seized from the possession of the petitioners when eventually are found to be worth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome forward to swear affidavits of facts that the search and seizure were effected on February 5, 1996, have not been subjected to any cross-examination. We have not, however, felt persuaded to convert the instant proceeding into a trial as we have good reasons to be convinced that the petitioners have been subjected to serious interference in their right to life by respondents Nos. 3 to 5. The primary duty of those in uniform is to uphold law and order and protect the citizen. The Supreme Court in Inder Singh v. State of Punjab, AIR 1995 SC 1949 ; [1995] 3 SCC 702, has observed (headnote of [1995] 3 SCC): "If members of a police force resort to illegal abduction and assassination, if other members of that police force do not record and investigate complaints in this behalf for long periods of time, if those who had been abducted are found to have been unlawfully detained in police stations in the State concerned prior to their probable assassination, the case is not one of errant behaviour by a few members of that police force. It betrays scant respect for the life and liberty of innocent citizens and exposes the willingness of others in uniform to lend a helping hand to one w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India. Laws have for the said reason limited substantially entry into the privacy of the house of men of law only under a search warrant as contemplated under sections 93 to 100 of the Code of Criminal Procedure, 1973, or without warrant only when any police officer having authority to arrest has reason to believe that the person to be arrested has entered into or is within any place and any person residing in or being in charge of such place on demand of the police officer would not allow him free ingress thereto and afford all reasonable facilities for a search therein as in section 47 of the Code of Criminal Procedure and as earlier discussed to seize certain properties under section 102 of the Code of Criminal Procedure in the circumstances enumerated therein. Although by mere lodgment of a case there is no deprivation of the liberty which is guaranteed under article 21 or the right to life therein registration of a case creates apprehension and registration of a false case is a threat to liberty which cannot be denied to any person living in our land of India save by prescribed procedure of law. Penal laws of the land do take notice of such false accusations and make a fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from and in addition to the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The Supreme Court in the said case has pointed out that the defence of sovereign immunity is not applicable in such a case and is thus alien to the concept of guarantee of fundamental rights. We have no reason in the instant case to proceed to discover in the inumerable pronouncements of the courts as there is a clear consensus and the law of the land is no longer in doubt that article 21 which guarantees the right to life and liberty will be deluded of its significant content if the courts would relegate petitioners to seek private law remedy of compensation when the State or its servants in the purported exercise of their powers are the wrong doers. We are satisfied in the instant case that respondents Nos. 3 to 5 in Writ Petition No. 4926 of 1996 have seriously wronged the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding as to whether any cash as alleged by the petitioners has also been taken away by the fifth respondent and others. We are, however, inclined on the facts of the instant case to order for immediate release of all the properties seized from the house of the petitioner and by way of compensation to award to them an amount in a sum of Rs. 5 lakhs payable by the Government of the State on condition that the Government will be free to proceed departmentally against respondents Nos. 3 to 5 in Writ Petition No. 4926 of 1996 and recover from them the said amount of compensation and/or otherwise suitably deal with them in accordance with law. The petitioners, besides the above, shall be entitled to sue the respondents for compensation, if any, in accordance with law and if so advised to make appropriate application in the court of competent jurisdiction against the fifth respondent and others for the offences that might be found to have been committed by illegal entry into their house, illegal seizure of their properties and illegal prosecution by keeping them under the threat of the complaint in Cr. No. 26 of 1996. In the result, the two writ petitions, viz., Writ Petition No. 492 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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