Gujarat High Court
Aaishakhatun Abdul Raheman Aslam ... vs State Of Gujarat on 24 December, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/8869/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8869 of 2020
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AAISHAKHATUN ABDUL RAHEMAN ASLAM KAPADIA
Versus
STATE OF GUJARAT
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Appearance:
MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/12/2020
ORAL ORDER
Leave to amend the name of the applicant.
RULE. Mr. Pranav Trivedi, learned Additional Public Prosecutor, waives service of notice of rule on behalf of the respondent State.
1. By way of this petition, the petitioner has prayed to quash and set aside the order dated 02.12.2020 passed by the learned 16th Additional Sessions Judge, Surat in Criminal Revision Application No.254 of 2020 whereby, the said revision was dismissed and the order dated 28.10.2020 passed by the Court of learned 11th Addl. Civil Judge and JMFC, Surat below muddamal application in C.C. No. 3522 of 2020 was confirmed.
2. The facts in brief are that in connection with a complaint bearing C.R. No. I-328 of 2019 registered with Udhna Police Page 1 of 6 Downloaded on : Fri Dec 25 20:20:53 IST 2020 R/SCR.A/8869/2020 ORDER Station, Surat on 26.11.2019 against one Mohammed Junaid @ Kharek Mohammed Aslam Kapadia, who is the son-in-law of the petitioner herein and others, the police had seized certain valuable articles as also cash to the tune of Rs.13,90,000/- from the residence of said accused.
3. It is the case of the petitioner that she is a widow and is having three daughters. After the death of her husband, the petitioner is looking after their family business. The petitioner had kept the cash amount of Rs.13,90,000/-, which are the savings of her husband, at the residence of accused - Mohammed Junaid as the same is to be utilized for the marriage of her daughters. The said amount has been seized in connection with the complaint.
4. The petitioner, therefore, preferred an application before the Magisterial Court seeking release of the said amount of cash, which came to be rejected vide order dated 28.10.2020. Against the said order, the petitioner preferred revision application, which also came to be rejected, vide order dated 02.12.2020. Hence, this petition.
5. Heard learned advocates on both the sides and perused the material on record. In the statement of accused - Mohammed Junaid recorded by the police on 01.12.2019, he has stated that the cash amount of Rs.13,90,000/-, which was recovered from his residence, belonged to his mother-in-law, i.e. the petitioner herein. The said amount was to be utilized by the petitioner for the marriage of her three daughters. Neither in the orders passed by both the Courts below or before this Court any claim has Page 2 of 6 Downloaded on : Fri Dec 25 20:20:53 IST 2020 R/SCR.A/8869/2020 ORDER made or any objection is raised against the claim made by the petitioner as regards the said amount of Rs.13,90,000/-.
6. Considering the facts of the case, a reference to the provisions of Section 451 Cr.P.C. would be apposite:
"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 purposes 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."
7. Sec. 451 Cr.P.C. mandates that when any property is produced before any criminal Court during the trial, the Court may make order for the proper custody of such property pending the conclusion of the trial. The object of Section 451 Cr.P.C. is well defined by the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, 2003(1) G.L.H. 307, wherein the Hon'ble Apex Court have extracted Para
- 4 of the judgment delivered in the case of Smt. Basava Kom Dyamangouda Patil vs. State of Mysore and Another [ (1977) 4 Page 3 of 6 Downloaded on : Fri Dec 25 20:20:53 IST 2020 R/SCR.A/8869/2020 ORDER SCC 358 ] , as under:
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place, it may be returned during any inquire or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance.
The court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the state or its officers had taken due care and caution to protect the property, the magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest."Page 4 of 6 Downloaded on : Fri Dec 25 20:20:53 IST 2020
R/SCR.A/8869/2020 ORDER 7.1 Further, in Sunderbhai Ambalal Desai's case (supra), in paragraphs - 9 and 10, it has been observed thus:
"Valuable Articles and Currency Notes:
9. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.
10. 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:--
(1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security."
8. Considering the facts and circumstances of the case and the principle laid down by the Apex Court in the case of case of Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638, this Court deems this to be a fit case wherein the muddamal cash amount could be released in favour of the petitioner.
9. In the result, the petition is allowed. The impugned orders dated 28.10.2020 and 02.12.2020 passed by both the Courts below are quashed and set aside. The respondents are directed to forthwith release the cash amount of Rs.13,90,000/- [Rupees thirteen lacs ninety thousand only] in favour of the petitioner Page 5 of 6 Downloaded on : Fri Dec 25 20:20:53 IST 2020 R/SCR.A/8869/2020 ORDER after due verification. The petition stands disposed of accordingly. Rule is made absolute.
(GITA GOPI,J) DIPTI PATEL Page 6 of 6 Downloaded on : Fri Dec 25 20:20:53 IST 2020