Pradeep Sunta vs State Of H.P.& Another on 3 January, 2020

[Cites 9, Cited by 2]

Himachal Pradesh High Court

Pradeep Sunta vs State Of H.P.& Another on 3 January, 2020

______________________________________________________________ For the Petitioner: Mr. Bhag Chand Sharma, Advocate For the Respondents: Mr.S.C. Sharma and Ms.Rameeta Rahi, Additional Advocates General with Mr.Kamal Kant, Mr.Kuldeep Chand Thakur and Ms.Seema Sharma, Deputy Advocates General, for respondent No.1.

                                               Mr.I.N.Mehta,     Advocate,    for
                                               respondent No.2.
    Vivek Singh Thakur, J.

Instant petition has been preferred by petitioner against rejection of his application filed under Section 451 Cr.P.C., for release of case property i.e. currency notes of Rs.35,500/- taken in possession by police after recovery Whether Reporters of Local Papers may be allowed to see the judgment?

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thereof, at the instance of respondent No.2/accused, in case FIR No. 167 of 2018 registered under Sections 457 and 380 .

IPC in P.S. Dhalli, by petitioner/complainant against respondent No.2/accused.

2 Case of petitioner is that respondent No.2 had stolen Rs.35,500/- from his pocket, and that the amount received by him from a wholesaler (Aadti) at Dhalli against sale of his apple boxes and the said amount i.e. 17 currency notes of Rs.2000/- and 3 currency notes of Rs.500/-, was recovered by police at the instance of respondent No.2/accused on 24.8.2018 and kept in sealed cover by preparing recovery memo in the presence of witnesses Prem Kumar and C.Mukesh Kumar.

3 It is submitted on behalf of petitioner that petitioner/complainant is a very poor man and amount is lying with police without earning any interest thereon, resulting in recurring loss to him and also that amount was annual yield of his horticulture produce and he is being deprived from utilization thereof.

4 It is also submitted on behalf of the petitioner that application for release was filed before learned Chief ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 3 Judicial Magistrate, Shimla for the reason that learned Judicial Magistrate, Court No. VII, Shimla, where the case is .

pending, does not possess powers of Judicial Magistrate 1 st Class and offence under Section 457 IPC is triable by Judicial Magistrate 1st Class. The application was transferred to the Court of learned Additional Chief Judicial Magistrate, Court No. II, Shimla who vide impugned order dated 8.8.2019, Annexure P-3, has dismissed the application.

5 The application has been dismissed by learned Magistrate on the ground that if currency notes are released to applicant, then he has to be directed to produce the very same currency notes at the time of recording of evidence and this would mean that applicant would not be able to use the money for his benefit and also for the reason that even if the photographs of these currency notes are taken before release of amount, then also witnesses would not be in a position to identify the currency notes from photographs as its serial numbers are not mentioned in recovery memo and thus not known to them and, therefore, witnesses would be able to identify the currency notes by their texture i.e. whether old or new, or the way they were recovered, folded ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 4 and packed in the alleged parcel, but texture of currency notes cannot be depicted in photographs and learned .

Magistrate has opined that it would be in the interest of justice to open the sealed parcel in presence of witnesses in whose presence the same was sealed so that they are able to identify the notes. It is further observed by learned Magistrate that till the witnesses Prem Kumar and C.Mukesh Kumar are not examined, case property should not be released to the complainant being important piece of evidence and therefore, application of petitioner has been dismissed.

6 In case Smt.Basavva Kom Dyamangouda Patil vs. State of Mysore and another reported in (1977)4 SCC 358, dealing with the case related to certain articles belonging to complainant, the subject matter of a theft, recovered by police during investigation, produced before the Court and retained by the Sub Inspector under the directions of the Court, but found stolen and lost on conclusion of trial from the custody of police. The Apex Court has observed that the object and scheme of various provisions of Cr.P.C. appear to be that where the property, ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 5 which has been the subject matter of an offence, is seized by 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 and as the seizure of the property by police amounts to 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 and it is further held that it is manifest that there may be two stages when the property may be returned to the owner, during any inquiry or trial and this may particularly be necessary where the property concerned is subject to speedy or natural decay and 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 Apex Court has observed that in a criminal case, the police is always under direct control of the Court and has to take orders from it at every stage of any inquiry or trial, and in this broad sense, therefore, the Court exercise an overall control on the actions of the police officers in every case where it has taken cognizance. It is also observed that object of the Cr.PC seems to be that any ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 6 property which is in the control of the Court either directly or indirectly should be disposed of by the Court by passing a .

just and proper order regarding its disposal.

7 The Apex Court, dealing with the case of custody and disposal of property pending trial in certain cases and procedure by police upon seizure of property, as contained in Sections 451 and 457 Cr.P.C. in Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002)10 SCC 283 has observed as under:-

"5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as:

(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 its thinks necessary;

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

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

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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 the 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 With regard to valuation of articles and currency notes, the Apex Court in aforesaid judgment has directed as under:-

"Valuable Articles and Currency Notes

11. With regard to valuable articles, such as golden or sliver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 8 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 purposes, 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 panchanama 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 or such articles are attested or countersigned by the complainant, accused as ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 9 well 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 claimant, 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 SIIO 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."

9 The Apex Court in General Insurance Council and others vs. State of Andhra Pradesh and others ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 10 reported in (2010)6 SCC 768, after considering Sunderbhai Amabalal Desai's case and mandate of .

Section 451 read with Section 457 of Code had passed further directions in addition to the directions issued by the Court in Sunderbhai Amabalal Desai's case with regard to seized vehicle, wherein one direction was to take photographs before release of vehicle and to use the same as secondary evidence during trial dispensing with the physical production of vehicle and also to have an undertaking/guarantee from the Insurance Company in whose favour the vehicle is to be released so as to indemnify the person found to be rightful owner of vehicle by the Magistrate after final adjudication of case. These directions are also relevant in present case.

10 Considering the mandate of Sections 451 and 457 of Cr.P.C. and ratio of aforesaid pronouncements of the Apex Court, I am of the considered view that learned Additional Chief Judicial Magistrate has committed a mistake by rejecting the application filed by the petitioner. Rejection of application on the ground that in recovery memo, serial numbers of recovered currency notes have not been ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 11 mentioned is not a valid ground as for having not mentioned the serial numbers of currency notes, .

irrespective of the fact that at the time of examination of witnesses, original currency notes are available or not, it would not be possible for witnesses to recollect the serial numbers of 20 currency notes on the day of deposition in Court. The relevant thing is that how many currency notes and of what denominations and/or of what value were recovered at the instance of accused in presence of witnesses. The photographs of currency notes taken in possession are the best secondary evidence for identifying the notes by witnesses and when photographs of currency notes are available for secondary evidence coupled with primary evidence of Panchnama/memo to be prepared, with complete details including serial numbers of currency notes, in the presence of learned Magistrate, parties, Investigating Officer and Panch witnesses, would be available for production and examination, the direction to produce the very same currency notes at the time of recording the evidence is not necessary and with the help of coloured photographs, it would not be difficult for witnesses to ::: Downloaded on - 03/01/2020 20:37:44 :::HCHP 12 identify the currency notes and further identification of notes by their texture whether old or new can be possible .

from the coloured photographs and the way they were recovered is not to be deposed after viewing the original currency notes, but it is a fact which is to be deposed on the basis of circumstances at the time of recovery of currency notes, which has no link with availability of original currency notes. Therefore, impugned order is set aside with following directions:-

(i) That parties are directed to appear before learned Chief Judicial Magistrate, Shimla on 17th January, 2020 along with their counsel;

(ii) Petitioner shall file a fresh appropriate application before learned Chief Judicial Magistrate, Shimla for release of the amount on 17.01.2020 or any day before that along with copy of this judgment;

(iii) Investigating Officer through respondent/State is directed to produce the sealed parcel of currency notes in the Court on that day;

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(iv) Learned Chief Judicial Magistrate, Shimla in his actual and physical presence and also in the .

presence of petitioner/complainant,respondent No.2/accused and two other witnesses to be associated by concerned Police Officer, shall open the sealed parcel without damaging the seals by Investigating Officer thereon at the time of seizure and shall prepare a detailed Panchnama of currency notes including their serial numbers through his Reader/Superintendent and the said Panchnama/memo shall be signed by two Panch witnesses, petitioner/complainant and respondent No.2/accused, attested by Investigating Officer/SHO/competent Police Officer and countersigned by Magistrate.

(v) The memo/Panchnama so prepared shall be used as primary evidence during trial to prove the facts contained therein.

(vi) Before opening of sealed parcel, during opening of parcel and after opening of parcel, its photographs will be taken and thereafter, photographs of currency notes will also be taken collectively or in small groups of currency notes independently as well as with persons present on spot.

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(vii) The photographs shall be taken at the expenses of State.

(viii) Photographs shall be taken in presence of Presiding Judge, Reader/Superintendent and two Panch witnesses and also in presence of petitioner/complainant, respondent No.2/ accused, Investigating Officer/ SHO/competent Police Officer and same shall be preserved by the trial Court for exhibiting during trial for using as secondary evidence.

(ix) Investigating Officer/SHO/concerned Police Officer with aid and advice of Public Prosecutor shall take all necessary steps for producing and proving aforesaid primary and secondary evidence on record or Court during trial in accordance with law.

(x) A personal bond to the tune of Rs.35,500/- shall also be taken from petitioner/complainant with one surety in like amount so as to indemnify the State or any other person, in case the Court adjudicates and concludes that he is not rightful owner of the currency but rightful owner is someone else.

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(xi) In case any party fails to appear on the date and at the time of completion of formalities for .

release without any plausible reason or if it appears to the Court that there is delay tactic on the part of a party, the process of release may be completed/closed in absence of such party.

(xi) The Magistrate may also impose/prescribe any other reasonable necessary condition/formalities for release in consonance with pronouncements of the Apex Court and madate of Sections 451 and 457 Cr.P.C. in given facts and circumstances.

The petition stands allowed and disposed of in the aforesaid terms. All pending miscellaneous application(s), if any, also stand disposed of.







    January 03,2020                                (Vivek Singh Thakur)
     (ms)                                                 Judge





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