The Jharkhand High Court on Friday (11th September) observed that in the case of an order of sealing, the authorities cannot be allowed to keep the premises locked for an unreasonably long period than what is absolutely necessary.
A Single Bench of Justice Rajesh Shankar was hearing a writ petition 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" (Jamshedpur).
The facts of the Case
The petitioner before the Court, 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.
The said hotel 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 2 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, 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. However, no action in this regard was taken
Arguments put forth
Petitioner's Arguments - The petitioner argued that even if it is assumed that there were some violations of lockdown guidelines, there is no provision for sealing the premises either under the Disaster Management Act, 2005 or under the Code of Criminal Procedure.
Moreover, it was contended that the power under sections 30 and 34 of the Disaster Management Act, 2005 has been conferred to the district authority to act as the district planning, coordinating and implementing body for disaster management.
The Senior Incident Commander-cum-Sub Divisional Magistrate was neither empowered nor authorized by the district authority to seal any property for alleged violation of the lockdown guidelines.
The Counsel for the petitioner also submitted that the accused persons have already been granted bail by a Bench of this Court in connection with the criminal cases, however, the said premises is still under seal of the district administration in the garb of collecting evidence, which is causing irreparable loss and injury to the petitioner.
Respondents' Arguments - The respondents contended that the seal of the said premises was quite necessary, considering the nature of offences committed in Hotel Alcor.
It has also been submitted that the power of sealing of any immovable property for collecting evidence and to stop the offender from tampering the evidence available at the crime scene is inherently provided in the Code of Criminal Procedure.
Moreover, though there is no direct power of sealing under the Act of 2005, the same can be said to be residuary/incidental power which has to be exercised for effective management and to prevent further violation of the guidelines issued under the said Act.
Hence, it was argued, the action taken by the respondents in sealing the said premises is not illegal and arbitrary either under the Disaster Management Act, 2005 or under the Code of Criminal Procedure.
Court's Analysis and Decision
While relying on the Judgment of the Apex Court in the case of Nevada Properties Private Limited through its Directors vs. state of Maharashtra & Anr., 2019 SCC Online SC 1247, the High Court concluded that the 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 the immovable property in order to seize it.
The High Court was of the considered view that the sealing of the said premises by the order of the respondent no.2 is not in accordance with the provisions of the Code of Criminal Procedure
The Court was of the view that so far as the provisions of Sections 30 and 34 of the Disaster Management Act, 2005, which have been referred by the learned counsel for the respondents to justify the order of sealing of the said premises are concerned, no such power of sealing of any premise/building has been conferred to the Senior Incident Commander-cum-Sub Divisional Magistrate.
Most importantly, the Court said,
"The order of sealing also does not appear to be reasonable and proportionate, as the same has been done for an indefinite period. Even if the alleged crime scene is to be protected to ensure that the evidence of the alleged offence does not disappear, the concerned authority after locking and sealing the crime scene does not require much time to reopen the same and to prepare an inventory. Nonetheless, the authorities cannot be allowed to keep the premises locked for an unreasonably long period than what is absolutely necessary." (emphasis supplied)
The Court further said,
"By doing so, the authorities definitely violate the right of the owner or occupier of the premises being without any legal sanctity. Even if it is assumed that there is evidence relating to the alleged offence in the premises of the said hotel, the same cannot empower the respondents to continue with the sealing for an indefinite period. The purpose of sealing must be to collect evidence within a reasonable time." (emphasis supplied)
The Court also observed that the fact that one of the directors of the said companies/firms, namely, Rajiv Singh Dugal is also involved in the commission of the alleged offence and, therefore, the respondent no.2 was otherwise not empowered to seal the entire premises particularly the offices of different companies/firms.
The Court said that it cannot be unmindful of the fact that due to sealing of the entire premises, several employees have gone unemployed and are facing financial difficulties.
Under the aforesaid facts and circumstances, the respondent no.2 was directed to remove the seal of the entire hotel premises including the offices of the companies/firms after preparing an inventory of articles, if so required, in connection with the pending criminal cases, which are lying there, and while doing so, the video recording of the same shall be done in presence of the representative of the petitioner.
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