Samapti Chatterjee, J.The petitioner filed the instant application praying for setting aside the Order dated 28th August, 2014 passed by the Court of learned Additional Chief Judicial Magistrate, Asansol, District-Burdwan in G.R. Case No. 1192 of 2014 arising out of Kulti Police Station Case No. 149 of 2014 dated 14th May, 2014 under Sections 379/ 411/ 413/ 414/ 120B/ 34 of the Indian Penal Code and under Section 30(II) of the CMN Act.

2. Mr. Arabinda Chatterjee, learned Senior Counsel appearing with Mr. Subir Ganguly, learned Advocate for the petitioner submitted that M/s. Eastern Coalfileds Ltd. Vide Order No. 20140302363 dated 1st April, 2014 issued a "Sale Order" in favour of the Associate Cement Company Ltd., Damodar Cement Works (hereinafter referred to as the said Company) having its office at Madhujunda, P.O-Sunuri, District-Purulia for lifting 192 MT of coal. The said "Sale Order" was issued on 1st April, 2014.

After issuance of "Sale Order" the said company duly deposited a sum of Rs. 51427.66 and Rs. 51016.65 being the sale price of 19.93 MT of coal including RE Cess to M/s. Eastern Coalfields Ltd. Upon receipt of the said amount M/s. Eastern Coalfields Ltd. issued loading advice, road challan-cum-coal bill and central excise dispatch advice etc in favour of the said company. It was also subsequently mentioned in the said loading advice that vehicles bearing No. WB-53A/5070 and WB-37C/1566 were authorised to lift the coal on behalf of the said company.

3. Mr. Chatterjee further submitted that in the "Sale Order" dated 1st April, 2014 it was categorically indicated that the two vehicles mentioned above were allowed to lift 10 MT and 9.930 MT coal respectively within 3rd April, 2014 to 22nd May, 2014.

4. Mr. Chatterjee further submitted that Baban Upadhyay the petitioner herein being the authorised agent of the said Company lifted/loaded the coal from M/s. Eastern Coalfields Ltd. on behalf of the said Company.

5. Mr. Chatterjee further pointed out that it was clearly mentioned in the authorised letter of the petitioner that the petitioner has to lift the coal from the said collieries in terms of the "Sale Order" and to deliver the same to the said Company.

6. Mr. Chatterjee further contended that the petitioner being the authorised agent engaged the above mentioned two vehicles for lifting coal from the premises of the said collieries. All on a sudden on 15th May, 2014 those two vehicles loaded with coal were seized by the police, on the basis of a First Information Report dated 14th May, 2014 arising out of a written complaint dated 14th May, 2014 alleging that the said coals were stolen from the collieries and one Kulti Police Station Case No. 149 dated 14th May, 2014 under Sections 379/ 411/ 413/ 414/ 120B/ 34 of the Indian Penal Code was initiated. The drivers of the said vehicles were arrested and they were subsequently released on bail on 17th May, 2014 granted by the Learned Chief Judicial Magistrate, Asansol, Dist-Burdwan on certain conditions.

7. Mr. Chatterjee further submitted that upon the prayer for release of the seized trucks bearing Nos. WB-37C/1566 and WB-53A/5070 both trucks were also released by the learned Additional Chief Judicial Magistrate, Asansol, Dist- Burdwan after being satisfied regarding ownership of those vehicles.

8. Mr. Chatterjee further vehemently urged that the papers relating to the loading of the coal were also duly produced before the Investigating Officer but unfortunately the Investigating Officer in his report wrongly mentioned that no papers regarding loading of coals were produced before him.

9. Mr. Chatterjee further vehemently argued that all papers were submitted before the learned Magistrate on 13th June, 2014 and 17th June, 2014 after preparing Firisti. The learned Court below however after accepting the report of Investigating Officer only released those two trucks but did not pass any order to release seized coal.

10. Mr. Chatterjee further contended that on 18th July, 2014 the petitioner made a prayer for return of the seized coal before the learned Court below and the learned Chief Judicial Magistrate on 28th August, 2014 after perusing the report submitted by the Investigating Officer rejected the petitioners application for release of seized coal.

Assailing the said Order dated 28th August, 2014 passed by the learned Court below the petitioner filed the instant petition/application before this Honble Court.

11. Mr. Chatterjee further vehemently urged that the petitioner after complying all the guidelines/advice/formalities as indicated in the "Sale Order" of the M/s. Eastern Coalfields Ltd. for lifting the coals from the premises of the said collieries, lifted the same from the said collieries. In spite of that learned Magistrate refused to release the seized coal.

12. Mr. Chatterjee further contended that the learned Magistrate miserably failed to appreciate the provisions of Sections 451 and 457 of the Code of Criminal Procedure, 1973. Sections 451 and 457 are set out hereunder:--

"Section 451:- Order for custody and disposal of property pending trial in certain cases-When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of."

Explanation.-For the purpose of this section, "property" includes--

(a) property of any kind or document which is produced before the Court or which is in its custody.

(b) Any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

Section- 457 :- Procedure by police upon seizure of property.-(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry 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 production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

13. Mr. Chatterjee further contended that despite wide powers conferred under Sections 451 and 457 of the Cr.P.C. the learned Magistrate failed to exercise those powers at the time of rejecting the application. In support of his contention Mr. Chatterjee relied on a Supreme Court decision reported in Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, and submitted that the impugned order is to be set aside and the revisional application should be allowed.

14. Mr. Manjit Singh, learned P.P. assisted by Mr. Amartya Ghosh, learned Advocate appearing for the opposite party/State submitted that the impugned Order was rightly passed by the learned Magistrate. No irregularities could be found in the said order. Therefore, the impugned order does not deserve any interference by this Honble Court.

15. Considering the rival submissions made by the learned Counsels of the parties and considering the petition and also perusing the records I find that there is much substance in the submission of the petitioner that the learned Magistrate failed to exercise the powers conferred under Sections 451 and 457 of Cr.P.C. In my opinion non-exercise of powers vested in the Court could not deny the petitioner the necessary order, the petitioner is otherwise entitled to.

16. I also find that whatever be the situation it is of no use to keep the seized articles at the police station for an indefinite period.

17. Therefore, I set aside the impugned Order dated 28th August, 2014 passed by the learned Chief Judicial Magistrate, Asansol, Dist-Burdwan in G.R. Case No. 1192 of 2014 and direct the Magistrate to pass appropriate orders by securing appropriate bond and guarantee as well as security for returning the seized coal after being satisfied with the papers regarding ownership of the seized coal as would be furnished by the petitioner being authorised agent of Associate Cement Company Ltd., Damodar Cement Works.

18. I hope and trust that the Magistrate concerned would take appropriate action for exercising the power as conferred under Section 451 of Cr.P.C. and pass the necessary order of release indicated above.

19. With the aforesaid directions, the revisional application is disposed of.

20. Photostat certified copy of the order, if applied for, be given to the parties on urgent basis.