Orissa High Court
CRLREV/35/2014 on 20 August, 2020
Author: B.P.Routray
Bench: B.P.Routray
CRLREV No.35 of 2014
11 20.8.2020 The petitioner has challenged the orders
dated 17.8.2009 and 21.10.2013 under Annexures-4 & 5
passed by learned S.D.J.M., Puri and 3rd Additional
Sessions Judge, Puri respectively and has further prayed
to release the property i.e., cash of Rs.2,75,000/- seized
from possession of the petitioner.
2. The petitioner along with seven others faced
trial in G.R.Case No.11 of 1999 (Trial No.2494 of 1999) for
commission of offences under Sections
120(B)/419/420/467/468/471/34 of the I.P.C. and
Section 20 of the I.T. Act before the learned S.D.J.M., Puri.
The accusations were that, the accused persons including
the petitioner by illegally managing the international
telephone call through conferencing machine cheated the
telephone department. Four telephone numbers connected
to four different persons at Puri town were used for the
purpose. The informant was the I.I.C. of Kumbharpada
Police Station, who upon receipt of information, conducted
verification, search and seizure. It was alleged that those
four telephones were being used illegally and
unauthorisedly with some suspected international nexus
2
and the bill of the calls for the period from 25.9.1998 to
2.12.1998 was to the tune of Rs.67,00,000/- and use of
such telephone services were for illegal call transfer
business with unauthorized attachment to those
telephones. After arrest of the petitioner, basing on his
disclosure statement, a cash of Rs.2,75,000/- was seized
from his house as leading to discovery. The said seizure list
along with disclosure statement has been marked in
evidence as Ext.1. On completion of trial, five accused
persons including the present petitioner were convicted for
commission of offence under Section 120-B of the I.P.C.
alone while being acquitted from all other offences. The
rest three accused persons were acquitted completely.
3. The petitioner preferred Criminal Appeal
No.3/5 of 2004-03 and the learned Ist Ad hoc Additional
Sessions Judge, Puri in judgment dated 27.8.2004
acquitted the petitioner. The rest four convicts preferred
criminal appeal separately bearing Criminal Appeal No.5/3
of 2013-03 and the learned 3rd Additional Sessions Judge,
Puri vide judgment dated 28.12.2013 also acquitted those
four convicts.
4. The petitioner after his acquittal in the year
3
2004 by the learned Ist Ad hoc Additional Sessions Judge,
Puri filed a petition before the said appellate court for
release of the property i.e., cash of Rs.2,75,000/-, which
was dismissed on 20.9.2005. The petitioner then preferred
Criminal Revision No.742 of 2005 before this Court, which
was converted to CRLA No.459 of 2006. The said appeal
was disposed of on 13.2.2008 with a direction to approach
the learned S.D.J.M., Puri under Section 452 of the Cr.P.C.
Accordingly, the petitioner preferred Criminal Misc.Case
No.78 of 2008 before the learned S.D.J.M., Puri praying to
release the said property, which was rejected on 17.8.2008
(Annexure-4). Then the petitioner again approached this
Court in Criminal Revision No.1034 of 2009 and this Court
by order dated 9.5.2012 dismissed the same with an
observation to file an appeal under Section 454 of the
Cr.P.C.. The petitioner then approached the learned
Sessions Judge, Puri in Criminal Appeal No.19 of 2013.
The learned 3rd Addl. Sessions Judge, Puri by order dated
21.10.2013 (Annexure-5) dismissed the said appeal.
5. Being aggrieved by the orders of the learned
S.D.J.M., Puri and 3rd Additional Sessions Judge, Puri
under Annexures-4 and 5 respectively, the present
4
criminal revision has been preferred praying to release the
property i.e., cash of Rs.2,75,000/-.
6. It is submitted on behalf of the petitioner that,
the property i.e., the cash aforestated was undisputedly
seized from his possession as per Ext.1. Both the courts
below have committed error in rejecting the prayer of the
petitioner to release the amount in his favour. It is also
submitted that, there is no other claimant than the
petitioner before the court below to get the amount.
Therefore, there is no doubt of ownership of the property in
his favour.
7. Having perused the impugned order as well as
the L.C.R., it is found that the lower appellate court as well
as the trial court have rejected the prayer of the petitioner
basing on two reasonings that, first, the petitioner has
failed to prove the ownership over the property and
secondly, at the time of disposal of the appeal under
Section 454 of the Cr.P.C. by the learned 3rd Additional
Sessions Judge, Puri for release of the property, the appeal
preferred by other four convicts under Section 374 Cr.P.C.
against their conviction was pending disposal. It is here
submitted by the petitioner that the appeal preferred by
5
four other convicts against their conviction has also been
disposed of in the meantime directing for acquittal of those
convicts vide judgment dated 28.12.2013 by the learned
3rd Addl. Sessions Judge, Puri under Annexure-6.
Therefore, no valid reason is there in not releasing the
property in favour of the petitioner.
8. Section 452 of the Cr.P.C. mandates the trial
court to make such order for disposal of the property. The
term 'property' includes not only the property regarding
which an offence has been committed or has been in
possession or under the control of any party, but also any
property into or for which the same has been converted or
exchanged, and anything acquired by such conversion or
exchange also. For that, the disposal would be in three
modes, i.e., by destruction, confiscation or delivery to any
person claiming to be entitled to possession thereof or
otherwise.
9. In the present facts of the case, the seizure of
the property i.e., the cash amounting to Rs.2,75,000/-
from possession of the petitioner is not disputed. As per
Ext-1, the aforementioned amount was seized from the
exclusive and conscious possession of the accused, Suresh
6
Kumar Mishra (present petitioner). The circumstances of
seizure mentioned in the said seizure list that, the
petitioner voluntarily led the police to his house at village
Basudevpur which was kept in a polythene packet in an
abandoned dressing table box lying in a corner of the inner
courtyard of the house and the same was accordingly
seized in presence of the witnesses. But the lower appellate
court in its order under Annexure-5 as well as the trial
court under Annexure-4 have questioned about ownership
of the property of the petitioner going deep into the source
of acquisition and as per both the courts the petitioner has
failed to prove his ownership over the property, and
therefore, they are not found entitled for possession of the
same.
10. In my opinion, both the courts below are not
correct in their approach. It is because the possession of
the property with the petitioner at the time of seizure is
never disputed which establishes possession of the
petitioner over the property. It is observed in the case of
Mahesh Kumar Vrs. State of Rajsthan, reported in 1990
(Supp) Supreme Court Cases 541(II) that the confessional
part of statement of accused under Section 27 of the
7
Indian Evidence Act leading to discovery can be made use
of for the purpose of disposal of the property. The relevant
observations are reproduced below:
"3. In Queen Empress v. Tribhovan
Manekchand, a Division Bench of the Bombay High
Court laid down that the statement made to the
police by the accused persons as to the ownership of
property which was the subject matter of the
proceedings against them although inadmissible as
evidence against them at the trial for the offence with
which they were charged, were admissible as evidence
with regard to the ownership of the property in an
enquiry held by the Criminal Procedure Code. The
same view was reiterated in Pohlu v. Emperor where it
was pointed out that though there is a bar in Section
25 of the Evidence Act, or in Section 162 CrPC for
being made use of as evidence against the accused,
this statement could be made use of in an enquiry
under Section 517 CrPC when determining the
question of return of property. These two decisions
have been followed by the Rajasthan High Court in
Dhanraj Baldeokishan v. State and the Mysore High
Court in Veerabhadrappa v. Govinda. In the present
case, the amount in question was seized from the
accused in pursuance of statements made by them
under Section 27 of the Evidence Act. The High Court
as well as the courts below have found the property to
be the subject of theft and the acquittal of the
accused is upon benefit of doubt. The accused
persons disclaimed the stolen property and there is
no reason why the same should not be returned to
the owner i.e. the complainant to whom it belongs."
11. In the case at hand, when no other claimant
than the petitioner is there, the property which is taken
from his possession admittedly, is required to be returned
to him in the event of his acquittal and also acquittal of all
the accused persons, and there is no need to go deep into
8
the proof of ownership in favour of the petitioner. Learned
trial court has discarded the ownership of the petitioner
after discussing the source of acquiring such property by
the petitioner. Particularly when there is no other claimant
of the property, no reason is there to refuse the return of
the property to the person from whose possession the same
was seized. Moreover, this is a case of acquittal. It is also
seen that the learned Ist Ad hoc Addl. Sessions Judge
while passing the judgment of acquittal (Annexure-2) has
not whispered a word regarding disposal of property.
12. The second reason as assigned by the learned
lower appellate court that the conviction of other four
accused persons is still in force as their appeal against
conviction has not been decided by then, has become now
redundant in view of their acquittal in appeal vide the
judgment under Annexure-6. So nothing more is required
to be discussed here on the same.
13. In view of the discussions made above, no
impediment is seen in directing for release of the property
i.e., cash of Rs.2,75,000/- seized under Ext.1 in favour of
the petitioner. Accordingly, it is directed to release the
property i.e., cash of Rs.2,75,000/- in favour of the
9
petitioner and the learned S.D.J.M., Puri is also directed to
pass necessary orders to that effect. The impugned orders
are set aside to the above extent. Accordingly, the Criminal
Revision is allowed.
..............................
B.P.Routray, J.
CRB