Jharkhand High Court: Rajesh Shankar, J., disposed off the petition directing the respondents to remove the seal of the hotel premises and certain guidelines to be followed by the petitioner.
The facts of the case are that the petitioner owns a hotel namely ‘Hotel Alcor’ which provides various facilities like restaurants, bars, spa, etc. An FIR was instituted under Sections 188, 269 & 270 of the Penal Code , 1860; Section 54 of the Disaster Management Act, 2005; and Section 3 of the Epidemic Diseases Act, 1897 alleging that during lockdown spa services of the aforesaid hotel was opened wherein a few people and two girls were found partying and hence were apprehended on conducting a raid. The premises of the hotel was sealed vide order dated 26-04-2020 by Special Officer, Jamshedpur Notified Area Committee and the Executive Magistrate-cum-Incident Commander, East Singhbhum, Jamshedpur. Another FIR was instituted under Sections 3, 4, 5 & 6 of the Immoral Traffic (Prevention) Act, 1956 against one of the Directors of the company- Rajiv Singh Duggal alleging that one Sharad Poddar had kept a lady namely Aishwarya Tarak Singh for the last one month and has been establishing a physical relationship with her. The petitioner sent a letter dated 07-05-2020 requesting the Deputy Commissioner to unseal the premises as the day to day business affairs is getting hampered consequent to which a reminder letter was also sent but to no relief. Aggrieved by the same, the present writ petition was filed.
Counsel for the petitioner Indrajit Sinha submitted that the police has no power to seal an immovable property under the provisions of the Code of Criminal Procedure and that too for an indefinite period without initiating any proceeding or providing any opportunity of hearing and it is thus grossly disproportionate, contrary to law and violative of Articles 14 and 19(1)(g) of the Constitution of India. It was further submitted that even the SDM does not have the power under the Disaster Management Act, 2005 to seal an immovable property.
Counsel for the respondent’s Darshan Poddar submitted that the premises was sealed for collection of evidence and it was done in exercise of power under Section 34 read with Section 30 of the Disaster Management Act, 2005.
The Court relied on the judgment titled Nevada Properties Private Limited v. State of Maharashtra, 2019 SCC Online SC 1247 and observed:
“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 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.”
The Court further relied on M. C. Mehta v. Union of India, 2020 SCC Online SC 648 which observed:
“…Article 300A of the Constitution provides that nobody can be deprived of the property and right of residence otherwise in the manner prescribed by law.”
The Court after hearing factual and legal position held that that the power of sealing of property carries civil consequences. A person can be deprived of the property only by following the due procedure in accordance with law. It was also held that the order of sealing does not appear to be reasonable and proportionate, as the same has been done for an indefinite period as the purpose stated of sealing was to collect evidence which should have been done within a reasonable time. The SDM did not have powers under Ss. 30 and 34 of the Disaster Management Act, 2005 to seal the premises. It may thus be concluded that the sealing cannot be held to be justified in absence of any express power under the statute conferred to any authority. The Court directed the respondent no.2 to remove the seal of the entire hotel premises.
In view of the above, the petition was disposed off.[S.R.P Oil Pvt. Ltd. v. State of Jharkhand, 2020 SCC OnLine Jhar 813, decided on 11-09-2020]
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