Calcutta High Court (Appellete Side)
Tarun Kumar Roy @ Tapan Kumar Roy vs The State Of West Bengal And Another on 1 March, 2016
Author: R.K. Bag
Bench: R.K. Bag
1 S/L. 48. C.R.R. 3082 of 2014 March 1, 2016 Bpg.
In the matter of : Tarun Kumar Roy @ Tapan Kumar Roy.
...petitioner.
Versus The State of West Bengal and another.
...opposite parties.
Mr. Sandipan Ganguly.
...for the petitioner.
Mr. Subir Banerjee.
...for the State.
Mr. Somopriya Chowdhury, Mr. Rajiv Lochan Chakraborty, Mr. Debapratim Guha, Mr. P. Kundu.
...for the opposite party no.2.
The petitioner has preferred this revision challenging the judgment and order dated July 24, 2014 passed by learned Additional Sessions Judge, 5th Court, Murshidabad in Criminal Revision no.30 of 2011 affirming the order dated August 29, 2009 passed by learned Chief Judicial Magistrate, Berhampore, Murshidabad in connection with G.R. no.440 of 2008 arising out of Berhampore Police Station Case no.145 of 2008 dated March 20, 2008 under Sections 395/397/412 of the Indian Penal Code read with Sections 25/27 of the Arms Act.
It appears from the materials on record that the Investigating Officer of Berhampore Police Station Case no.145 of 2008 seized gold ornaments by preparing five seizure lists. The opposite party no.2, being the defacto complainant of the case, filed an application before the trial court for return of gold ornaments weighing 532.16 grams on any condition during pendency of the criminal case. It further appears from the record that the present petitioner, being the accused of the said criminal case also filed an application before the 2 trial court praying for return of gold ornaments weighing 446.96 grams during pendency of the criminal case. On August 29, 2009, learned Magistrate returned the gold ornaments weighing 390.95 grams to the opposite party no.2 on execution of bond of Rs.10,00,000/- on condition that the opposite party no.2 will produce the said gold ornaments before the trial court for passing final order on conclusion of trial. The said order of learned Magistrate was challenged by the petitioner before the court of sessions by filing Criminal Revision no.30 of 2011. Learned Additional Sessions Judge disposed of Criminal Revision No.30 of 2011 by affirming the order passed by learned Magistrate. The said judgment and order passed by learned Additional Sessions Judge in Criminal Revision no. 30 of 2011 is under challenge in the instant revision.
Mr. Sandipan Ganguly, learned counsel for the petitioner contends that seized gold ornaments have been returned to the opposite party no.2 in violation of direction given by Supreme Court in "Sunderbhai Ambalal Desai V. State of Gujarat" reported in 2003 C. Cr. L.R (22) 122. According to Mr. Ganguly, the photographs of the gold ornaments should have been taken before return of the same to the opposite party no.2. He also submits that proper inventory should have been prepared before making order of return of the seized articles to the opposite party no.2. Mr. Ganguly specifically submits that the seized articles may be produced before the trial court for obtaining the photographs and the same may be returned to the rightful claimant on execution of proper bond on the basis of terms and conditions to be decided by the trial court during pendency of the criminal case before the court of learned Magistrate.
Mr. Somopriya Chowdhury, learned counsel for the opposite party no.2 has pointed out that the opposite party no.2 furnished bond of Rs.10,00,000/- though the bond amount is wrongly recorded as Rs.1,00,000/- in the order passed by learned Magistrate. Mr. Chowdhury has urged this Court to consider that the opposite party no.2 may be permitted to retain seized gold ornaments in his custody during pendency of the criminal case on the basis of the bond which has already been furnished before the trial court. However, Mr. Chowdhury has no objection if the photographs of the gold ornaments are taken in presence of the trial court as per direction of the Supreme Court in "Sunderbhai Ambalal Desai V. State of Gujarat" (supra).
3Mr. Subir Banerjee, learned counsel for the opposite party/State submits that the seized gold ornaments may be kept in the locker to be opened in any bank in the name of the opposite party no.2 and the said locker cannot be operated by the opposite party no.2 during pendency of the criminal case before the court of learned Magistrate.
Having heard learned counsel representing the respective parties and on consideration of the impugned order under challenge in the revision, I find that learned Additional Sessions Judge has not taken into consideration the fact that learned Magistrate has returned the seized gold ornaments to the opposite party no.2 without preparing detailed inventory and without taking photographs of the seized gold ornaments as directed by the Supreme Court in "Sunderbhai Ambalal Desai V. State of Gujarat" (supra). In "Sunderbhai Ambalal Desai V. State of Gujarat" (supra) the Supreme Court has given specific direction in paragraph 12 of the judgment for return of the valuable articles to the rightful claimant during pendency of the criminal case before the trial court. It is relevant to quote paragraph 12 of the Report, which is as follows:
"12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:
(i) preparing detailed panchnama of such articles;
(i) taking photographs of such articles and a bond that
such articles would be produced if required at the
time of trial ; and
(i) after taking proper security."
In the instant case, learned Magistrate has returned gold ornaments weighing 390.95 grams which was seized by the Investigating Officer of the case by five seizure lists. The photographs of the seized gold ornaments were not taken before return of the same to the defacto complainant, that is, the opposite party no.2. However, learned Magistrate directed the opposite party no.2 to furnish bond of Rs.10,00,000/- as security for taking seized gold ornaments during pendency of the criminal case before the trial court. Since the photographs of the gold ornaments were not taken before return of the same to the opposite party no.2, there is possibility of changing the nature and character of the property during pendency of the criminal case before the trial court. Accordingly, I would like to 4 modify the order passed by learned Additional Sessions Judge in Criminal Revision no.30 of 2011.
The judgment and order passed by learned Additional Sessions Judge, 5th Court, Murshidabad in Criminal Revision no.30 of 2011 is modified to the extent that the opposite party no.2 will produce the seized gold ornaments weighing 390.95 grams before the trial court within a period of two weeks from the date of communication of the order to the trial court. The Court Inspector of Berhampore Court is directed to take photographs of the seized gold ornaments weighing 390.95 grams under the supervision of learned Magistrate of the trial court on the day of production of the same by the opposite party no.2. The gold ornaments weighing 390.95 grams will be returned to the opposite party no.2 on execution of bond of Rs.10,00,000/- on condition that the opposite party no.2 will not change the nature and character of the property and will produce the same on demand before the trial court and subject to final decision of learned Magistrate on conclusion of trial. The previous bond executed by the opposite party no.2 stands cancelled on production of the seized gold ornaments before the trial court. A copy of the photographs will be retained in the record of the trial court.
With the above direction, criminal revision is disposed of.
Urgent photostat certified copy of this order, if applied for, shall be given to the learned counsel for the parties upon compliance of all formalities.
(R.K. Bag, J.)