Madras High Court
Veerasami Chettiar vs The Inspector Of Police, Thanjavur ... on 5 April, 1988
Equivalent citations: 1989CRILJ790
ORDER David Annoussamy, J.
1. This is a revision against the order regarding return of property. On 21-4-1982, there was a theft of three jewels weighing 20 sovereigns in total from the house of one Veerasami. Upon complaint by the latter, a case was registered as crime No. 70 of 1982 by the Thanjavur Police Station. On investigation it was found that the jewels were taken away by Ilango, son of Veerasami himself. Upon the statement of Ilango, the jewels were recovered on 24-4-1982 and sent to court. On 3-6-1982 Ilango pleaded guilty of the offence and was accordingly convicted.
2. Thereupon Veeraswami filed an application for return of the jewels stolen from his house. The Magistrate conducted an enquiry under Section 452 Cr. P.C. found that Veerasami, the revision petitioner herein is the rightful owner entitled to the return of the property. However, he ordered the jewels to be sent to the Gold Control Officer in accordance with the circular P. Dis. No. 205 of 1984 dated 24-10-1984, of this Court.
3. The case of the revision petitioner is that a circular of the High Court cannot run against the provisions of the Cri. P. C. but can only give effect to the provisions of the Code and the Rules framed thereunder and secure the ends of justice. It is therefore argued that neither the Gold Control Act nor any other rules formed thereunder enjoins the code to forward the jewels to the Gold Control officer. It is further added that as per Section 110 of the Gold Control Act 1968, it is the duty of the Police Officer to inform the Control Officer or to cause the gold to be conveyed to him and that in the absence of any such prayer by the Police Officer, the court should exercise its power under Section 452 Cr. P.C. for the disposal of the property. The learned Counsel for the revision petitioner would further place reliance on a decision of this Court in Cr.M.P. 2697 and 3481 of 1986 dated 23-4-1986 and also on the decision of the High Court of Punjab and Harayna in R. L Kapania v. Mahilal 1978-Cur LJ Cri 54 which has also been referred to in the decision first quoted.
4. I shall how proceed to examine the contentions of the revision petitioner. As Chap. XXXIV of the Cr. P.C. it is for the court to take action for disposal of the property at the conclusion of the trial. Those provisions have to be read as conjunction with Section 110 of the Gold Control Act, 1968 which runs as follows -
110. Procedure in respect of gold seized by Police officers:
(1) Where any Police Officer seizes any gold which is alleged or suspected to have been stolen or which is found under circumstances which create suspicion of the commission of an offence, such police officer shall forthwith report the seizure of such gold to the nearest Gold Control Officer, or above the rank of a Superintendent of Central Excise.
(2) Notwithstanding anything contained in the Code of Criminal Procedure 1898 (5 of 1898) in every case referred to in Sub-section (1), the Police Officer shall immediately after the dismissal of the complaint or the conclusion of the enquiry or trial, as the case may be, cause such gold to be conveyed or delivered to the nearest Gold Control Officer of or above the rank of a Superintendent of Central Excise.
Sub-section (2) embodies a non obstente clause. Therefore, the provisions of Section 110 of the Gold Control Act will have overriding effect, and have to be given effect despite the provisions of the Code of Criminal Procedure, The section, as pointed out by the learned Counsel for the revision petitioner, would come into play only if the police officer takes steps for the conveyance of the gold to the nearest Gold Control Officer. It is not shown that such a step has been taken in this case.
5. In order to understand fully the object of Section 110 of the Gold Control Act, it is necessary to find out as to what would happen to the gold which is conveyed to the Gold Control Officer as per Sub-section (2) of Section 110 of the Gold Control Act. It will be in the nature of gold seized by the Gold Control Officer himself under Section 66 of the Gold Control Act. He will ascertain whether the provisions of the Gold Control Act have been contravened, and then proceed to confiscate, levy penalty and initiate prosecution for offences under the said Act. He will do so, only if he is satisfied that any provision under the Gold Control Act has been contravened. Otherwise he will have to send back the gold to the Court for being returned to the rightful Owner since, obviously, he cannot allow gold Articles to accumulate in his safe without knowing what to do with them.
6. In this context, the question arises when the Police Officer would act under Sub-section (2) of Section 110 to cause the gold to be conveyed to the Gold Control Officer. As per Section 66 of the Gold Control Act, the Gold Control Officer would seize the gold and take subsequent proceedings only if he has reason to believe that any provision of the Act is or is attempted to be contravened. Therefore, the normal procedure would be that upon receiving a report under sub-section of Section 110 of the Act, the Gold Control Officer intimates the Police Officer to cause the gold to be conveyed to him, upon his satisfaction that a contravention had happened. Otherwise, the Police Officer need not cause the gold to be conveyed. This is the view taken by me in Cr.M.P. No. 2697 and 3481 of 1986 (Cr.M.P. 2698/81 - Kanthinathan v. State Cri MP 3481 No. 1986 Ravindra v. State by judgment D/- 23-4-1986 and also by the High Court of Punjab and Haryana in R. L. Kapania v. Nunilal 1978 Cur LJ (Cri) 54 the gist of which is produced in S. R. Roy's Gold Control Act, 1968, 1985 Edn. at pp. 179 and 180. The circular of this High Court referred to above was not challenged in that case.
7. In order to dispose of this matter in the proper way notice was issued to Mr. P. Rajanickm, Public Prosecutor for the Central Government. He stated first that he has no objection for the Magistrate remitting back the jewels to the rightful owner in this case. He further stated that the direction given to the Magistrate in Cr.M.P. 2697 and 2381 of 1986 dated 23-4-1986 to give notice to the Gold Control Officer concerned whenever he has to pass an order regarding disposal of the property, was agreeable to the department and would be sufficient compliance with the provisions of Section 110 of the Gold Control Act.
8. In view of the above submission, the revision case is allowed. The order of the Magistrate directing the jewels to be forwarded to the Gold Control Officer is set aside and the jewels are ordered to be remitted to the petitioner-complainant herein.