Abhay Shrenikbhai Gandhi vs State Of Gujarat on 8 December, 2015

[Cites 41, Cited by 0]

Gujarat High Court

Abhay Shrenikbhai Gandhi vs State Of Gujarat on 8 December, 2015

HC-NIC Page 1 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT [1] By this application under Article 227 of the Constitution of India, the applicant - original accused calls in question the legality and validity of the order dated 15.10.2015 passed by the Additional Sessions Judge, Court No.21, Ahmedabad (City) in the Criminal Revision Application No.426 of 2014, by which, the learned Additional Sessions Judge rejected the Revision Application filed by the applicant herein, thereby affirming the order dated 23.07.2014 passed by the Additional Chief Judicial Magistrate, Court No.11, Ahmedabad below Exhibit: 49 in the Criminal Case No.217 of 2012 rejecting the application filed by the applicant herein under Section 451 of the Code of Criminal Procedure, 1973 for release of a car seized by the Police in connection with an offence.

[2] The facts giving rise to this application may be summarized as under:

[2.1] One First Information Report came to be registered at the D.C.B. Police Station, Ahmedabad vide C.R. No.I11 of 2011 against the applicant herein and his brother for the offence punishable under Sections 406, 409, 420 and 120B of the Indian Penal Code. Prima facie, it appears to be the case of the prosecution that the applicant herein floated a scheme, and thereby, lured innocent people to invest in the same with false representation that the investors would receive twice the amount invested by them in the scheme. It is the case of the prosecution Page 2 of 39 HC-NIC Page 2 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT that many innocent people were cheated in this manner and about Rs.4 to 5 Crore was collected in the said scheme. It is also the case of the prosecution that the scheme was nothing, but an apparent cheating and the entire amount came to be misappropriated by the accused persons. [2.2] It is the case of the prosecution that the accused persons pocketed a huge amount deposited by the victims and embezzled the said amount by committing criminal breach of trust. Out of the amount collected and embezzled by committing the criminal breach of trust, the applicant herein purchased a BMW car bearing registration No.GJ1KH7875. [2.3] It appears that the investigation culminated in filing of the chargesheet, and filing of the chargesheet culminated in the Criminal Case No.217 of 2012 pending in the Court of the Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad. [2.4] It appears that since 2011, the applicant herein and the co accused are in the judicial custody.

[2.5] It also appears that in the course of the investigation, the BMW car referred to above was seized, as having been found under the circumstances which created suspicion of the commission of the offence. In short, the car was seized, as according to the Investigating Agency, the same was purchased from the money alleged to have been Page 3 of 39 HC-NIC Page 3 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT misappropriated by the applicant herein.

[2.6] The car which was seized is in possession and custody of the Police. The same has been kept at the Police Station. It has been almost four years that the custody of the car is with the Police. In such circumstances, the applicant herein thought fit to prefer an application Exhibit: 49 under Section 451 of the Code of Criminal Procedure, 1973 for release of the same subject to certain the terms and conditions substantially on the ground that keeping the car at the Police Station would reduce the car to a scrap.

[2.7] The learned Additional Chief Metropolitan Magistrate thought fit to reject the application substantially on the ground that although the applicant is the registered owner of the vehicle in question, yet he being in the judicial custody, it would not be proper to handover the custody to his father who holds the power of Attorney of his son. [2.8] Being dissatisfied with the order passed by the learned Additional Chief Metropolitan Magistrate, the applicant herein preferred the Criminal Revision Application No.426 of 2014 in the City Civil and Sessions Court at Ahmedabad. The Revision Application was also ordered to be rejected mainly on two grounds : (i) that it would not be proper to handover the custody of the vehicle to the power of attorney holder of the applicant, and (ii) the vehicle was purchased from the Page 4 of 39 HC-NIC Page 4 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT money deposited by the victims.

[2.9] Being dissatisfied with the order passed by the Revisional Court, the applicant has come up with this application.

[3] Mr. Pravin Gondaliya, the learned counsel appearing for the applicant vehemently submitted that the Courts below committed a serious error in passing the impugned orders. He submitted that the impugned orders are not in conformity with the provisions of Sections 451 and 457 of the Cr.P.C.

[4] Mr. Gondaliya submitted that the Courts below have committed a serious error in taking the view that since the applicant is in the judicial custody although he may be the registered owner of the vehicle, yet the custody cannot be given to the father of the applicant being the power of attorney holder of the registered owner.

[5] Mr. Gondaliya submitted that as such the vehicle in question has nothing to do with the offence. He submitted that assuming for the moment without admitting that the car was purchased from the money alleged to have been misappropriated, it cannot be said that any offence has been committed relating to the said car.

[6] The argument of Mr. Gondaliya is that first the offence was registered on the strength of the F.I.R., and thereafter, in the course of Page 5 of 39 HC-NIC Page 5 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT the investigation, the car was seized by the Police in exercise of its powers under Section 102 of the Cr.P.C. His submission is that the car was seized as a sequel to the offence which was registered, and therefore, it cannot be said that the car or the vehicle is a property regarding which an offence could be said to have been committed or appears to have been used for the commission of any offence. [7] Mr. Gondaliya submitted that keeping the car idle at the Police Station would not serve any good purpose and with passage of time, the car has already sustained extensive damage. Any further exposure of the car to the open sky will probably reduce the car to a scrap. Relying on the decisions of the Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in 2002(10) SCC 290 and General Insurance Council and others vs. State of Andhra Pradesh and others reported in 2010 AIR SCW 2967, he submitted that the vehicle may be released subject to terms and conditions, which would protect the interest of the prosecution as well as the socalled victims. [8] In such circumstances referred to above, he prays that the impugned orders be quashed and the car may be ordered to be released subject to the terms and conditions which this Court may deem fit to impose.



         [9]     On the other hand, this application has been vehemently opposed 


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by Mr. H.K. Patel, the learned Additional Public Prosecutor appearing for the respondent - State of Gujarat. He submitted that no error, not to speak of any error of law could be said to have been committed by the Courts below in passing the impugned orders. He submitted that although the applicant is the registered owner of the car, yet he being in the judicial custody, it would be difficult for the Court to handover the custody to the registered owner. According to him, handing over the possession of the car to the father of the applicant being the power of attorney of the applicant, would not be in tune with the provisions of law, more particularly, Sections 451 and 457 of the Cr.P.C. Mr. Patel submitted that the car was purchased by the applicant by committing the criminal breach of trust of the amount deposited by the victims, and therefore, the car has direct connection with the alleged offence. According to Mr. Patel, the car may not be said to have been used in the commission of an offence, but the same has been purchased by committing an offence of the criminal breach of trust, that is, by embezzlement of the funds deposited by the victims. [10] Lastly, Mr. Patel submitted that the car is in a good condition and is being taken care of by the officials of the concerned Police Station. In such circumstance referred to above, Mr. Patel prays that there being no merit in this application, the same be rejected.





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                       R/SCR.A/7108/2015                                                 JUDGMENT

[11] Having heard the learned counsel appearing for the parties and having considered the materials on record, the following questions fall for my consideration in this application:

(a) Whether the registered owner of a vehicle seized by the Police, in connection with an offence, in exercise of the powers under Section 102 of the Cr.P.C., can pray before the Court for release of the vehicle pending trial on certain terms and conditions sitting in jail, that is, being in the judicial custody?

(b) Whether the vehicle alleged to have been purchased from the money misappropriated or embezzlement by the accused could be said to have been found under circumstances which creates suspicion of the commission of any offence? To put it in other words, whether such vehicle could be termed as a 'property' regarding which an offence could be said to have been committed.

[12] The following facts are not in dispute:

[a] The applicant herein is the registered owner of the BMW car which was seized by the Police.

[b] The car was seized in the course of the investigation of the F.I.R. being C.R. No.I11 of 2011 registered with the D.C.B. Police Station, Ahmedabad.




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[c] The applicant, as on today, is in the judicial custody. [d] The vehicle is not alleged or suspected to have been stolen. [e] The vehicle is not alleged to have been used for the commission of an offence.

[13] I am not impressed by the line of reasoning adopted by the Courts below that the registered owner of the car being in the judicial custody, the possession of the car cannot be ordered to be handed over to him under Section 451 of the Cr.P.C. The dilemma expressed by the Courts below seems to be that if the registered owner of the car is in the judicial custody, then to whom the possession of the car should be handed over. The applicant herein clarified that his father has been given the power of attorney. He made himself clear that the possession of the car could be handed over to his father who will take care of the same pending trial and that too, after imposing suitable terms and conditions with a view to protect the interest of the prosecution as well as the depositors. I do not find anything in any of the provisions of law which operates as a bar or which prohibits the Court from releasing the vehicle in favour of the registered owner of the vehicle who may be in the judicial custody. The whole object of ordering the release of any property seized by the Police in connection with any offence is to see that such property does not get damaged or deteriorated. On conclusion of the trial, it is always open for the trial Court to pass an appropriate order as regards the disposal of the Page 9 of 39 HC-NIC Page 9 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT property seized as Muddamal. The provisions of Section 452 of the Cr.P.C. are very clear in that regard.

[14] In my view, the vehicle seized by the Police can be ordered to be released subject to the terms and conditions even though the registered owner may be in the judicial custody. The Court can even put the person to whom the vehicle is handed over to terms. It is for the Court to exercise its better discretion in the facts and circumstances of each case. The Court can always consider who is the person taking over the custody or the possession of the vehicle on behalf of the registered owner. In the present case, the applicant prays that the vehicle be released and handed over to his father. The father could have been put to appropriate terms and conditions. I, therefore, answer the first question accordingly. [15] The second question, which has fallen for my consideration, goes to the root of the matter.

[16] Before I proceed to answer the second question, I deem it necessary to look into the few provisions of law.

[17] Section 102 of the Cr.P.C. provides for the powers of Police Officer to seize certain property. Section 102 of the Cr.P.C. falling in ChapterVII reads thus:

"102. Power of police officer to seize certain property Page 10 of 39 HC-NIC Page 10 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

[(3) Every police officer acting under subsection (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court [or where there is difficulty in securing proper accommodation for the custody of such property; or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation.] he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.] [Provided that where the property seized under sub section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.]"

[18] Section 451 of the Cr.P.C. falling in Chapter -XXXIV provides for custody and disposal of property pending trial. The same reads thus:

"451. Order for custody and disposal of property pending trial in certain cases When any property is produced before any Criminal Court during any 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."

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HC-NIC Page 11 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT [19] Section 457 of the Cr.P.C. provides for the procedure to be followed by the Police upon seizure of property. Section 457 reads thus:

"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."

[20] The case of the prosecution is that the car in question was purchased by the applicant from the proceeds of crime, that is, the amount alleged to have been misappropriated, and therefore, the vehicle in question has direct connection with the offence. According to the prosecution, if the vehicle is found to have been purchased from the proceeds of crime, then it was within the power of the Police to seize the same, as it could be said to be a property regarding which an offence appears to have been committed.

[21] Mr. Patel made an attempt to invoke the provisions of Chapter VII Page 12 of 39 HC-NIC Page 12 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT A as Section 105A (c) and (d) defines "proceeds of crime" and "property". Section 105A (c) defines "proceeds of crime" as under:

"(c) "proceeds of crime" means any property derived or obtained directly or indirectly, by any person as a result of criminal activity (including crime involving currency transfers) or the value of any such property;"

[21.1] Section 105A (d) defines "property" as under:

"(d) "property" means property and assets of every description whether corporeal or incorporeal, movable or immovable tangible or intangible and deeds and instruments evidencing title to, or interest in such property or assets derived or used in the commission of an offence and includes proeprty obtained through proceeds of crime;"

[22] In my view, Chapter VIIA will have no application so far as the case in hand is concerned. The reason I am saying so is that having regard to the heading of the chapter, the statement of objects and reasons of the amending Act being Act No.40 of 1993, the provisions of Chapter VIIA are not the ordinary law of land and the provisions therein would be applicable only to the offences which have international ramifications. The provisions of Chapter VIIA are not applicable to local offences complained of like the case in hand.

[23] I have to my advantage a decision of the Supreme Court in this regard. In State of Madhya Pradesh vs. Balram Mihani reported in [(2010) 2 SCC 602], wherein the Supreme Court has explained the position of law as under:

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HC-NIC Page 13 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT "7. Answering all these questions and also taking into account the general provisions of search and seizure contained in Sections 91 to 101 of the Code, as also taking into consideration Sections 451, 452 and 457 of the Code dealing with the custody and disposal of the property involved in crime, the High Court ultimately came to the conclusion that the said provisions of Chapter VIIA would not apply to the cases in question. The High Court has also taken into consideration the provisions of Section 41(1)(g) of the Code, Sections 166A and 166B of the Code and has relied upon three other cases, namely, Union of India and Anr. v. W.N. Chadha [1993 Supp. (3) SCC 260] : (1993 AIR SCW 423), Jayalalitha v.

State [2002 Cri LJ 3026] and Bhinka v. Charan Singh [AIR 1959 SC 90]. It has ultimately held that Chapter VIIA has been incorporated with an intention to curb mischief or completely eliminate the terrorists activities and international crimes. According to the High Court, the provisions of this Chapter are supplemental to the special provisions contained in Sections 166A and 166B and had nothing to do with the investigation into offences in general.

8. We have considered the judgment as also the contentions raised by the learned counsel. We have also perused the heading of Chapter VIIA as also the Statement of Objects and Reasons. After perusing the same we are of the firm opinion that the well written judgment of the High Court is correct and the High Court has taken a correct view.

9. In the Statement of Objects and Reasons to the Amending Act 40 of 1993 there is a clear cut reference that the Government of India had signed an agreement with the Government of United Kingdom of Great Britain and Northern Ireland for extending assistance in the investigation and prosecution of crime and the tracing, restraint and confiscation of the proceeds of crime (including crimes involving currency transfer) and terrorist funds, with a view to check the terrorist activities in India and the United Kingdom. The statement further goes on to provide the three objectives, viz. :

(a) the transfer of persons between the contracting States including persons in custody for the purpose of assisting in investigation or giving evidence in proceedings;

(b) attachment and forfeiture of properties obtained or derived from the commission of an offence that may have been or has been committed in the other country; and

(c) enforcement of attachment and forfeiture orders issued by a court in the other country.

10. We have even taken into consideration the speech of the then Home Minister Shri S.B. Chavan which leaves no doubt that this Chapter is not Page 14 of 39 HC-NIC Page 14 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT meant for the local offences.

11. When we see the applications as also the order passed by the Trial Court, it is clear that it is only and only in respect of the local offences like gambling and the offences under I.P.C., which are local. Even the properties are not shown to be connected with crimes mentioned in the Objects and Reasons of the amending Act. In fact, no connection is established also between crimes mentioned and the properties. Such properties are clearly not included in Section 105C. Though the language of Section 105C (1) is extremely general, its being placed in Chapter VIIA cannot be lost sight of. Again there is a clear cut reference in Subsection (2) thereof to the contracting State, the definition of which is to be found in Section 105A (a). It is, therefore, clear that the property envisaged in Section 105C (1) cannot be an ordinary property earned out of ordinary offences committed in India. Where the language is extremely general and not clear, the contextual background has to be taken into consideration for arriving at clear interpretation. Some assistance was tried to be taken from the language of Section 105B (2) which starts with the words "notwithstanding anything contained in this Code". However, when the subsection is read in entirety, it is clear that it makes reference to a person who is in "contracting State". Therefore, even that reference will not bring in any provision within the scope of general law. We again cannot ignore the express language of Sections 105B and 105C which starts with the words "where a court in India". If this chapter was meant for the general offences and the properties earned out of those general offences in India, then such a phraseology would not have been used by the Legislature.

12. Lastly we see the provisions of Section 105L which are clear that the Central Government may by notification in the official gazette, direct that the application of this chapter in relation to a contracting State with which there are reciprocal arrangements would be subject to some conditions, exceptions and qualifications as would be specified in the said notification. It is, therefore, clear that the whole chapter is specific chapter relating to the specified offences therein and has nothing to do with the local offences or the properties earned out of those.

13. At this juncture, it is pointed out that there are specific other Central laws wherein the properties earned out of trading of Narcotic Drugs and Psychotropic Substances or the offences relating to smuggling or financial offences relating to foreign exchange are liable to be attached, seized and forfeitured. Chapter VIIA is one such measure to introduce stringent measures for attachment and forfeiture of the properties earned by the offences, by way of reciprocal arrangement in the contracting countries. However, if we accept the State's contention that the provisions of Chapter VIIA are for all and sundry offences in India, it would be illogical.





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14. If such a construction as claimed by the petitioner is given then it would mean that even for the offences which are local in nature and committed within the State, still the property connected with those offences shall be forfeitured to the Central Government. That would obviously be an absurd result.

15.Lastly, we cannot ignore the likely misuse of the provisions in Chapter VIIA if the whole Chapter is made applicable to the local offences generally. Such does not appear to be the intendment of the Legislature in introducing Chapter VIIA."

[24] In view of the decision of the Supreme Court referred to above, there is no question of applying the provisions of Chapter VIIA to the present case.

[25] Let me assume for the moment that the car was purchased by the applicant by committing criminal breach of trust of the money entrusted by the depositors with the applicant. Whether this by itself is sufficient to hold that the car is a part and parcel of the offence alleged to have been committed, and therefore, the Police was justified or rather had the power to seize as a Muddamal.

[26] I am not impressed by the submission of Mr. Gondaliya that the seizure of the car was a sequel to the discovery of the commission of the offence, and therefore, the Police could not have seized the vehicle in exercise of its powers under Section 102 of the Cr.P.C.

[27] Before I proceed further with this issue raised on behalf of the applicant, I may also look into the judgment of the Supreme Court in the Page 16 of 39 HC-NIC Page 16 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT case of State of Maharastra vs. Tapas D. Neogy [(1999) 7 SCC 685] on which strong reliance has been placed by Mr. Gondaliya.

[28] The issue before the Supreme Court was, whether a Police Officer investigating into an offence can issue a prohibitory order in respect of a bank account of the accused in exercise of powers under Section 102 of the Code. The Supreme Court, after an exhaustive consideration of the provisions of Section 102 of the Code, took the view that the bank account of an accused or of his relations could be said to be property within the meaning of subsection (1) of Section 102 of the Code. I may quote with profit the following observations made by the Supreme Court, as contained in paras 5 to 12 of the judgment :

"5. Coming now to the provisions of Section 102 of the Code of Criminal Procedure, the said provisions are extracted herein below in extenso:

"Sec.102. Power of Police Officer to seize certain property. (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2)Such police officer, if subordinate to the officer in charge of a police station shall forthwith report the seizure to that officer. (3) Every Police Officer acting under subsec.(1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same."

6. A plain reading of subsection(1) of Section 102 indicates that the Police Officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence.



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The legislature having used the expression "any property" and "any offence" have made the applicability of the provisions wide enough to cover offences created under any Act. But the two pre conditions for applicability of Section 102(1) are that it must be `property' and secondly, in respect of the said property there must have suspicion of commission of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be `property' within the meaning of subsection(1) of Section 102 of the Cr.P.C. and secondly, whether circumstances exist, creating suspicion of commission of any offence in relation to the same. Different High Courts in the country have taken divergent views in this regard. In the case of Ms. Swaran Sabharwal vs. Commissioner of Police, reported in 1988 Criminal Law Journal(Vol. 94) 241, a Division Bench of Delhi High Court examined the question whether bank account can be held to be `property' within the meaning of Section 102 of the Cr.P.C. In the said case, proceeds realised by sale of official secrets were deposited by the accused in his wife's account. The Court in that case came to hold that it is not quite sure whether monies deposited in a bank account can be seized by means of a prohibitory order under the provisions of Section 102 but even assuming that a bank account is a `property' within the meaning of Section 102 of the Code of Criminal Procedure, the further consideration must be satisfied namely the property has been found under circumstances which create the suspicion of the commission of an offence. But in that case it is not the discovery of the property that has created suspicion of commission of an offence but on the other hand the discovery of the bank account is a sequel to the discovery of commission of offence inasmuch as the police suspected that some of the proceeds realised by the sale of the official secrets have been passed on to the bank account of the wife of the accused. Therefore, the Court was of the opinion that the provisions of Section 102 cannot be invoked. In the case of M/s. Purbanchal Road Service, Gauhati vs. The State, reported in 1991Criminal Law Journal (Vol.97) 2798, a learned Single Judge of the Gauhati High Court examined the provisions of Section 102 of the Criminal Procedure Code and the validity of an order by a Police Officer, prohibiting the bank from paying amount to the accused from his account. The learned Judge came to the conclusion that word `seize' used in Section 102 Cr.P.C. means actual taking possession in pursuance of a legal process and, therefore, in exercise of the said power, a bank cannot be prohibited not to pay any amount out of the account of the accused to the accused nor can the accused be prohibited from taking away any property from the locker, as such an order would not be a `seizure' within the meaning of Section 102 of the Criminal Procedure Code. The learned Single Judge agreed with the view taken by Allahabad High Court in the case of Textile Traders Syndicate Ltd., Bulandshahr vs. The State of U.P., AIR 1960 Allahabad 405 (Vol.47). In the Allahabad Case on which Gauhati High Court relied upon (AIR 1960 Allahabad 405), what was decided by the Court is, once money passes on from the accused to some other person or to the bank, Page 18 of 39 HC-NIC Page 18 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT money itself becomes unidentifiable and, therefore, there cannot be any question of seizure of the same by the Police Officer.

7. In the case of M/s Malnad Construction Co., Shimoga and Ors. vs. State of Karnataka and Ors., 1994 Criminal Law Journal(Vol.100) 645, a learned Single Judge of Karnataka High Court examined the provisions of Section 102 of the Criminal Procedure Code and relying upon the Gauhati High Court's decision, referred to supra, came to hold that the `seizure' in Section 102 would mean taking actual physical possession of the property and such a prohibitory order to the banker of the accused not to operate the account is not contemplated under the Code and consequently, the police has no power to issue such order. Thus the High Courts of Karnataka, Allahabad, Gauhati and Delhi have taken the view that the provisions of Section 102 of the Criminal Procedure Code cannot be invoked by the Police Officer in course of investigation to issue any prohibitory order to the banker or the accused from operating the bank account.

8. In P.K. Parmar and ors. vs. Union of India and anr., 1992 Criminal Law Journal 2499 (Vol.98), a learned Single Judge of Delhi High Court considered the power of police officer under Section 102 of the Criminal Procedure Code, in connection with the fraudulent acquisition of properties and opening of fictitious bank accounts and withdrawal of huge amounts as subsidy from Government by producing bogus documents by the accused. The learned Judge took note of the earlier decision of Delhi High Court in Ms. Swaran Sabharwal vs. Commissioner of Police, 1988 Criminal Law Journal 240 (Vol.94), and analysed the provisions of Section 102 of the Criminal Procedure Code and the facts of the case were as under. It was revealed that during investigation the prosecution came to know that without actually manufacturing phosphate and fertilizers, the accused withdrew as much as Rs.3.39 crores as subsidy from the Govt. of India by producing bogus documents. The Court ultimately came to the conclusion that the recovery of assets in the bank links prima facie with the commission of various offences with which they have been charged by the CBI and, therefore, the police officer could issue directions to various banks/financial institutions freezing the accounts of the accused. The learned Judge in the aforesaid case has really considered the amount of money which the accused is alleged to have swindled by producing bogus documents which prompted him to hold that the power under Section 102 Cr.P.C. can be exercised.

9. In Bharath Overseas Bank vs. Minu Publication, 1988 Madras Law Weekly (Crl.) 106, a learned Single Judge of the Madras High Court considered the same question and came to the conclusion that the expression `property' would include the money in the bank account of the accused Page 19 of 39 HC-NIC Page 19 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT and there cannot be any fetter on the powers of the police officer in issuing prohibitory orders from operating the bank account of the accused when the police officer reaches the conclusion that the amount in the bank is the outcome of commission of offence by the accused. The Court considered the fact as to how in modern days, commission of white collar crimes and bank frauds are very much on the increase and banking facilities have been extended to the remotest rural areas and, therefore the expression `property' may not be interpreted in a manner so as to exclude the money in a bank which in turn would have the effect of placing legal hurdles, in the process of investigation into the crimes. According to the learned Judge, such literal interpretation of the expression `property' could not have been the intent of the framers of the Criminal Procedure Code. In paragraph 11 of the said judgment, the learned Judge referred to the object behind investing the police with powers of seizure. It will be appropriate to extract the same in extenso:

"It would now be useful to refer to the object behind investing the police with powers of seizure. Seizure and production in court of any property, including those regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence or any other property will have a two fold effect. Production of the above property may be necessary as evidence of the commission of the crime. Seizure may also have to be necessary, in order to preserve the property, for the purpose of enabling the Court, to pass suitable orders under S.452 of the Criminal Procedure Code at the conclusion of the trial. This order would include destruction of the property, confiscation of the property or delivery of the property to any person claiming to be entitled to possession thereto. It cannot be contended that the concept of restitution of property to the victim of a crime, is totally alien to the Criminal Procedure Code. No doubt, the primary object of prosecution is punitive. However, Criminal Procedure Code, does contain several provisions, which seek to reimburse or compensate victims of crime, or bring about restoration of property or its restitution. As S.452, Crl.P.C. itself indicates, one of the modes of disposing of property at the conclusion of the trial, is ordering their return to the person entitled to possession thereto. Even interim custody of property under Ss.451 and 457, Crl.P.C., recognises the rights of the person entitled to the possession of the properties. An innocent purchaser for value is sought to be reimbursed by S.453, Crl.P.C. Restoration of immovable property under certain circumstances, is dealt with under S.456, Crl.P.C. Even, monetary compensation to victims of crime or any bona fide purchaser of property, is provided for under S.357, Crl.P.C. Wherein when a Court while convicting the accused imposes fine, the whole or any part of the fine, if recovered, may be ordered to paid as compensation to any person, for any lose or injury, caused by the offence or to any bona fide purchaser of any property, after the Page 20 of 39 HC-NIC Page 20 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT property is restored to the possession of the person entitled thereto. This two fold object of investing the police with the powers of seizure, have to be borne in mind, while setting this legal issue."

10.This Judgment of the learned Single Judge of the Madras High Court was followed in a later decision in the case of Bharat Overseas Bank Ltd. vs. Mrs.Prema Ramalingam, 1991 Madras Law Weekly (Criminal) 353, wherein the learned Judge agreeing with Padmini Jesudurai, J in Bharat Overseas Bank's case came to hold that money in bank account is `property' within the meaning of Section 102 of the Criminal Procedure Code, which could be seized by prohibiting order. In the aforesaid case, the learned Judge has also noticed the fact that the Judgment of Padmini Jesudurai, J, in 1988 LW(Crl.)106, was upheld by the Division Bench subsequently.

11. In the case of Dr. Gurcharan Singh vs. The State of Punjab, 1978(80) Punjab Law Reporter, 514, a Division Bench of the Punjab & Haryana High Court differing with the view taken by the Allahabad High Court in AIR 1960 Allahabad 405, came to hold that the bank account would be `property' and as such would be capable of being seized under Section 102 of the Code of Criminal Procedure.

12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be `property' within the meaning of said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation is `property' within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by Karnataka, Gauhati and Allahabad High Courts, does not Page 21 of 39 HC-NIC Page 21 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under subsection (2) of Section 13, the legislatures have provided that the Courts in fixing the amount of fine shall take into consideration the amount or the value of the property, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub section(1) of Section 13, the pecuniary resources or property for which the accused person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer, prohibiting the account of the accused from being operated upon. Though we have laid down the law, but so far as the present case is concerned, the order impugned has already been given effect to and the accused has been operating upon his account, and so, we do not interfere with the same."

[29] Mr. Gondaliya would submit that the Supreme Court did approve the line of reasoning adopted by the Division Bench of the Delhi High Court in Ms. Swaran Sabharwal (supra), wherein the view taken is that the discovery of the bank account being a sequel to the discovery of the commission of the offence, the Police could not have freezed the bank account. The argument on the face of it appears to be quite attractive, but I am afraid, I am not in a position to accept such argument.

[30] The Supreme Court in one of its recent pronouncements in the case of M.T. Enrica Lexie and another v. Doramma and others, (2012) 6 SCC 760, has observed in para 14 as under :

Page 22 of 39

HC-NIC Page 22 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT "The police officer in course of investigation can seize any property under Section 102 if such property is alleged to be stolen or is suspected to be stolen or is the object of the crime under investigation or has direct link with the commission of offence for which the police officer is investigating into. A property not suspected of commission of the offence which is being investigated into by the police officer cannot be seized. Under Section 102 of the Code, the police officer can seize such property which is covered by Section 102(1) and no other."

[31] Mr. Gondaliya also placed reliance on the decision of the Supreme Court in the case of Sajan K Verghese vs. State of Kerala [(1989) 2 SCC 208], wherein the Supreme Court observed as under:

"18...In the circumstances of the case Section 451, Criminal Procedure Code would strictly have no application. Chapter XXIV in which Section 451 occurs deals with the disposal of property produced before any criminal court during any enquiry or trial and the powers of the Court to pass orders for the custody and disposal of the property pending trial. In this case it is, no doubt, true that the semiprocessed films and the negatives were seized by the police during the investigation of the criminal case registered against Sajan K. Varghese. However, it has to be noted that the semiprocessed films and the negatives are not themselves items of property regarding which offences have been committed. On the other hand the gravamen of the accusation made against Sajan K. Varghese is that he had induced thousands of investors to deposit crores of rupees in the Finance Company on the assurance that he would pay them high rates of interest and thereafter defrauded them and secondly he had committed breach of trust by utilising the deposit amounts for the production of the film in question..."

[32] Thus, in the recent pronouncement of the Supreme Court, it has been made clear that if any property is the object of the crime under investigation or has direct link of the commission of an offence, for which, the Police Officer is investigating into, then the Police Officer is within his powers to seize any such property under Section 102 of the Page 23 of 39 HC-NIC Page 23 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT Cr.P.C.

[33] Let me assume for the moment that in the present case, if the money alleged to have been misappropriated by the applicant herein would have been recovered in the form of cash, would it not have been permissible for the Police to seize such cash being the object of the crime. If some cash alleged to have been misused by the applicant is used for the purchase of any movable property, then could such movable property not become the object of the crime having a direct link with the offence. In my view, the answer has to be in the affirmative.

[34] In such circumstances referred to above, I hold that the BMW car alleged to have been purchased by the applicant from the money alleged to have been misappropriated by the applicant was rightly seized as a Muddamal.

[35] The last question I need to address is whether the car should be ordered to be released subject to certain terms and conditions pending the final disposal of the trial.

[36] The law, in this regard, is well settled. The Supreme Court in the case of Sunderbhai Ambalal Desai (supra) considered at length this issue and observed as under:

"5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as Page 24 of 39 HC-NIC Page 24 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary;

(3) if the property is subject to speedy and natural decay, to dispose of the same.

6. It is submitted that despite wide powers, proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody.

7.In our view, the powers under Section 451, Cr. P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:

1.Owner of the article would not suffer because of its remaining unused or by its misappropriation;

2.Court or the police would not be required to keep the article in safe custody;

3.If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

4.This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

8.The question of proper custody of the seized article is raised in number of matters. In Smt. Basavva Kom Dyamangouda Patil v. State of Mysore and another, (1977) 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed 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 Page 25 of 39 HC-NIC Page 25 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT returned during any inquiry or trial. This may particularly be necessary where the property concerned is sought 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."

9. 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.

10. To avoid such a situation, in our view, powers under Section 451, Cr. P.C. should be exercised promptly and at the earliest. Valueable Articles and Currency Notes

11. 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.

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: (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.

13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451, Cr. P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well Page 26 of 39 HC-NIC Page 26 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451, Cr. P.C. to impose any other appropriate condition.

14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimants, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed. Vehicles

15. Learned Senior Counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to handover such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned Counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said Page 27 of 39 HC-NIC Page 27 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.

19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.

20. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451, Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same.

21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451, Cr.P.C. are properly and promptly exercised and articles are not kept for a long time of the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly."

[37] The same principle was reiterated by the Supreme Court in its later decision in the case of the General Insurance Council (supra). The Supreme Court, after considering its earlier decision in the case of Sunderbhai Ambalal Desai (supra) observed as under:

"15. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only they occupy substantial space of the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct that all the State Governments/Union Territories/Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that Page 28 of 39 HC-NIC Page 28 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT the activities of each and every police stations, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the concerned Division/Commissioner of Police of the concerned cities/Superintendent of Police of the concerned district.

16. In case any noncompliance is reported either by the Petitioners or by any of the aggrieved party, then needless to say, we would be constrained to take a serious view of the matter against an erring officer who would be dealt with iron hands. With the aforesaid directions, this writ petition stands finally disposed of."

● The following principles emerge from the judgments referred to above:

[38] The properties seized by the police during investigation or trial have to be produced before the competent Court within one week of the seizure and the Court has to expeditiously pass an order for its custody in terms of the directions of the Supreme Court in Basavva Kom Dyamangouda Patil v. State of Mysore [1977 (4) SCC 358], Sunderbhai Ambalal Desai (supra) and General Insurance Council (supra).

[39] The Court has to ensure that the property seized by the police should not be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary and in any case, for not more than one month.

[40] If the property is subject to speedy and natural decay or if it is otherwise expedient to do so, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

[41] The expeditious and judicious disposal of a case property would Page 29 of 39 HC-NIC Page 29 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT ensure that the owner of the article would not suffer because of its remaining unused or by its misappropriation; Court or the police would not be required to keep the article in safe custody; and onerous cost to the public exchequer towards the cost of storage and custody of the property would be saved.

Time limit for release [42] Whenever a property is seized by the police, it is the duty of the seizing officer/SHO to produce it before the concerned Magistrate within one week of the seizure and the Court, after due notice to the concerned parties, is required to pass an appropriate order for its disposal within a period of one month. Valuable articles [43] The valuable articles seized by the police may be released to the person, who, in the opinion of the Court, is lawfully entitled to claim such as the complainant at whose house theft, robbery or dacoity has taken place, after preparing detailed a panchnama of such articles; taking photographs of such articles and a security bond.

[44] The photographs of such articles should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Wherever necessary, the Court may get the jewellery articles valued from a government approved valuer.

[45] The actual production of the valuable articles during the trial should not be insisted upon and the photographs along with the panchnama should suffice for the purposes of evidence.





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[46] Where such articles are not handed over either to the complainant or to the person from whom such articles were seized or to its claimant, then the Court may direct that such articles be kept in a locker.

[47] If required, the Court may direct that such articles be handed back to the Investigating Officer for further investigation and identification. However, in no circumstance, the Investigating Officer should keep such articles in custody for a longer period for the purposes of investigation and identification.

[48] If articles are required to be kept in police custody, the SHO shall, after preparing proper panchnama, keep such articles in a locker.

Currency notes [49] The currency notes seized by the police may be released to the person who, in the opinion of the Court, is lawfully entitled to claim after preparing detailed a panchnama of the currency notes with their numbers or denomination; taking photographs of the currency notes; and taking a security bond.

[50] The photographs of such currency notes should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over and memo of the proceedings be prepared which must be signed by the parties and witnesses.

[51] The production of the currency notes during the course of the trial should not be insisted upon and the releasee should be permitted to use the currency.




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         Vehicles

[52] Vehicles involved in an offence may be released to the rightful owner after preparing detailed panchnama; taking photographs of the vehicle; valuation report; and a security bond.

[53] The photographs of the vehicle should be attested and countersigned by the complainant, accused as well as by the person to whom the custody is handed over.

[54] The production of the vehicle should not be insisted upon during the trial. The panchnama and photographs along with the valuation report should suffice for the purposes of evidence.

[55] Return of vehicles and permission for sale thereof should be the general norm rather than the exception.

[56] If the vehicle is insured, the Court shall issue notice to the owner and the insurance company for disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that it has claimed insurance/released its right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in auction.

[57] If a vehicle is not claimed by the accused, owner, or the Insurance company or by a third person, it may be ordered to be sold by auction.



         Liquor and narcotic drugs 



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[58] Prompt action should be taken in disposing of the liquor bottles/pouches and narcotic drugs after preparing a detailed panchnama containing an inventory; retaining a sample thereof; taking photographs of the entire lot of seized bottles/pouches/narcotic drugs and security bond. The sample shall be kept properly after sending it to the chemical analyst, if required.

[59] The sample along with the photographs of the case property and the panchnama would be sufficient evidence at the stage of trial.

Counterfeit Coins/Currencies [60] The counterfeit coins/currencies together with implements for their manufacture such as dyes, moulds, etc. shall be retained by the police pending trial and till the disposal of the appeal or revision, if any. On conclusion of the trial, the Court shall pass an order for its disposal by destruction or for such other action in Crl. M.C.4485/2013 Page 67 of 76 accordance with the rules.

Arms and ammunitions [61] The arms and ammunition seized by the police shall be stored in the Malkhana during the pendency of the trial. Upon conclusion of the trial, the Court shall pass appropriate order under Section 452 Cr.P.C. for its confiscation or destruction or release. Perishable properties [62] In case of properties subject to speedy and natural decay, the Magistrate may pass an appropriate order under Section 459 Cr.P.C. for its disposal on such conditions as may be considered appropriate.





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[63] If the person entitled to the possession is unknown or absent or the Magistrate is of the opinion that sale would be in the benefit of the owner, the Magistrate may direct the case property to be sold.

Disposal of property at conclusion of trial [64] Upon conclusion of enquiry or trial, the Court may make an order under Section 452 Cr.P.C. for the disposal by destruction, confiscation or delivery to any person claiming to be entitled for possession thereof or otherwise.

[65] For delivery of any property to any person claiming to be entitled thereto, the Court may release the property unconditionally or impose a condition of a bond with or without sureties to restore such property to the Court upon modification/setting aside of the order in appeal or revision.

[66] The aforesaid order shall not be carried out for a period of two months or when an appeal is presented, until disposal of the appeal except in case of live stock or property subject to speedy and natural decay.

Unclaimed properties [67] If no person establishes his claim to case property within six months or the person in whose possession such property was found is unable to show that he legally acquired the same, the Magistrate may order sale of the property by the State Government under Section 458 Cr.P.C.

Loss/theft/destruction of the case property in police custody Page 34 of 39 HC-NIC Page 34 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT [68] Where the seized 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 its owner.

[69] The Court has to assess the value of the property seized by the police and the owner of the property is entitled to receive the value of the property lost from the State.

General [70] The Court may impose any other condition which may be necessary in the facts of each case.

[71] The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused.

[72] When the property has any evidentiary value, it is to be kept intact and the condition of nonalienation is imposed to ensure its production during the course of evidence for the purpose of marking as a material object. However, when the property has no evidentiary value and only the value of the property is to be properly secured for passing of final order under Section 452 Cr. P.C., the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law.





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                   R/SCR.A/7108/2015                                                   JUDGMENT

[73] The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial.

[74] Irrespective of the fact whether the properties have evidentiary value or not, it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to.





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HC-NIC                                        Page 36 of 39     Created On Sat Jun 18 04:13:25 IST 2016
                  R/SCR.A/7108/2015                                                JUDGMENT

[75] In General Insurance Council (supra) (para 14), the Supreme Court has fixed the responsibility of the Inspector General of Police of the Division/Commissioner of Police concerned of the cities/ Superintendent of Police of District concerned to check the activities of each and every police station with regard to the disposal of the seized vehicles.

Consequences of refusing to follow the well settled law [76] The consequence of an authority not following the well settled law amounts to contempt of Court as held by the Supreme Court in East India Commercial Co. Ltd. v. Collector of Customs [1962 AIR(SC) 1893,], Makhan Lal v. State of Jammu and Kashmiar [(1971) 1 SCC 749], Baradakanta Mishra v. Bhimsen Dixit [(1973) 1 SCC 446], Re:

M.P. Dwivedi [(1996) 4 SCC 152], T.N. Godavarman Thirumulpad v. Ashok Khot [(2006) 5 SCC 1], Maninderjit Singh Bittav. Union of India [(2012) 1 SCC 273], Priya Gupta v. Addl. Secretary Ministry of Health and Family Welfare and others [(2013) 11 SCC 404] and various High Courts in Hasmukhlal C. Shah v. State of Gujarat [1978 GLR 378], State of Gujarat v. Secretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya [1982 Cr Law Journal 2255], C.T. Subbarayappa v. University of Agricultural Sciences, Banglore [1998 (5) Kar Law Journal 263], Parmal Singh v. Union of India [WP(C) No.7231/2011, Delhi High Court], ExCT Nardev v. Union of India [2011 180 DLT 328] and Head of Department, Air Force Station Amla v. Ram Kumar Gir [2010 (3) ACC 279].

{See : Manjit Singh v/s. State, 2014 Law Suit(Del) 3414} [77] In the result, this application is allowed. The impugned orders are Page 37 of 39 HC-NIC Page 37 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT hereby ordered to be quashed. The vehicle in question may be released and handed over to the father of the applicant after proper identification on the following conditions:

(1) The applicant as well as the father of the applicant shall execute a personal bond in the sum of Rs.5,00,000/ (Rupees Five lac only) each with a solvent surety to the satisfaction of the learned Magistrate.

(2) The applicant as well as the father of the applicant shall not transfer or alienate the vehicle in question by selling it or otherwise in favour of any third person nor possession of the same will be parted with its without prior permission of the Magistrate concerned.

(3) The father of the applicant shall produce the said vehicle before the Court or before such other authority as the Court may direct in the course of the inquiry or trial or confiscation proceedings, as the case may be, whenever required to do so, and (4) The father of the applicant, who is to take over the possession of the vehicle, shall file an undertaking in this regard on oath before this Court in the above terms.

[78] In the facts and circumstances of the case, I also direct the Additional Chief Judicial Magistrate, Court No.11, Ahmedabad to start with the recording of evidence in the Criminal Case No.217 of 2012 at the earliest. If the charge has not been framed, then the charge shall be framed within a period of two weeks from the date of the receipt of the Page 38 of 39 HC-NIC Page 38 of 39 Created On Sat Jun 18 04:13:25 IST 2016 R/SCR.A/7108/2015 JUDGMENT writ of this order. Even otherwise it is expected of the learned Additional Chief Judicial Magistrate to complete the trial since the applicant and the coaccused are in jail. In any view of the matter, the entire case shall be completed with judgment on or before 31st May, 2016.

[79] With the above observations and directions, this application is disposed of.

(J.B.PARDIWALA, J.) chandresh Page 39 of 39 HC-NIC Page 39 of 39 Created On Sat Jun 18 04:13:25 IST 2016

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