Calcutta High Court (Appellete Side)
Siddhant Singh @ Shidhant Shing @ Babu ... vs State Of West Bengal on 6 February, 2025
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
06.02.2025
Court No.13
Item Nos.19 to 22
AP
CRA 589 of 2017
Siddhant Singh @ Shidhant Shing @ Babu and Ors.
Vs.
State of West Bengal
With
CRA 621 of 2017
Uttam Mahato
Vs.
The State of West Bengal
With
CRA 641 of 2017
Dashrath @ Dasrath Mahato
Vs.
The State of West Bengal
With
CRA 649 of 2018
Muthoot Finance Limited
Vs.
The State of West Bengal
Mr. Vinayak Chaubey
Mr. Avimanyu Roy Chowdhury
... for the Appellant in CRA 649 of 2018.
Mr. Debasish Roy, Ld. P.P.
Mr. Ranadeb Sengupta
Mr. Santanu Talukdar
Mr. Karan Bapuli
...For the State in all these appeals.
In Re.: CRA 649 of 2018
1. The instant criminal appeal being CRA 649 of 2018
arises out of an order of refusal passed by the learned
Additional Sessions Judge, Durgapur to allow the appellant to
sell the recovered gold ornaments.
2. The brief facts relevant to the instant case are that some
time on 1st February, 2013 at about 3:15 pm certain unknown
persons entered into the Benachity Branch of the appellant/
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Muthoot Finance Limited along with revolver and sharp
weapons. They overpowered the security guard and made him
sit on the ground. The accused thereupon in the presence of
employees and customers in the branch went to the cashier's
cabin and took a sum of Rs.11,03,922.50/-. They also entered
into the store room and took away 1129 packets containing
gold ornaments weighing 36470.89 grams valued around 12
crores. They also took away gold from two customers.
3. The police registered FIR and apprehended the accused
Nos.1 to 12. The accused No.12 expired in the meantime. The
police filed charge sheet under Sections 395/397/120-B/412
of the IPC. Trial was held and the accused persons have been
convicted and thereafter sentenced.
4. On an application made by the appellant under Sections
451 and 452 of the Cr.P.C., the seized gold ornaments and
articles were returned back to the appellant. The appellant's
prayer for disposal of the gold ornament was, however,
declined by the learned Additional Sessions Judge, Durgapur
in its order dated 24th April, 2018.
5. It is submitted by the appellant that in the meantime
due to pressure from the customers, the value of the gold
pledged and/or pawned was returned. The gold ornaments now
exclusively belong to the appellant, Muthoot Finance Limited.
6. The appellant claimed that they are in the business of
lending against gold and also sometimes sell pledged
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ornaments when the customer fails to repay the same within
time.
7. The appellant claims that they are running at huge
losses for inability to sell the gold ornaments since the year
2018. They pray that the impugned order refusing permission
to sell the seized gold ornaments be set aside and they be
permitted to sell the said gold ornaments.
8. The reasoning applied by the learned ACJM is that since
an appeal is pending from the order of conviction, it would be
inappropriate to permit the appellant to sell the gold
ornaments or change the nature and character of the seized
articles since they are the subject matter of a criminal
proceeding.
9. This Court has carefully considered the arguments
advanced by the learned counsel for the appellant and the
State.
10. Counsel for the State has very fairly submitted that his
clients do not have any objection either if the particulars of the
seized gold ornaments are retained for the purpose of the
appeal or any other future proceedings or if the appellant sells
the gold ornaments in question.
11. In case of stolen goods or those vehicles involved in
crimes mostly in motor accidents and other cases it is seen
that such vehicles lie in police custody for prolong periods. The
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spare parts are stolen, machines are completely unusable and
became scrap due to prolonged detention in police Malkhana
and custody. Malkhanas and police backyards are overcrowded
and the State suffers for lack of space. There is also a liability
that the police face for thgeft/destruction/damage to such
seized articles.
12. The accumulation of seized articles in police Malkhana
and the scope of Sections 451 and 452 of the Cr.P.C. has been
dealt with by the Hon'ble Supreme Court and various High
Courts have issued guidelines and States have framed rules
and regulations in this regard to perishable goods, narcotics,
contraband, vehicles, cash and ornaments that are subject
matter of criminal proceedings.
13. The NDPS Act of 1995 at section 51 provides for the
destruction of the seized articles after compliance of due
procedure of law. Chapter XXXVI of the BNSS 2023 deals with
disposal of property which subject matter of Criminal
proceedings.
14. The Hon'ble Supreme Court in the case of Smt. Basavva
Kom Dyamangouda Patil Vs. State of Mysore and Anr.
reported in (1977) 4 SCC 358 has held as follows:-
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"4. The object and scheme of the various provisions of the Code appear
to be that where the property which has been the subject-matter of an
offence is seized by the police it ought not to be retained in the custody
of the Court or of the police for any time longer than what is absolutely
necessary. As the seizure of the property by the police amounts to a
clear entrustment of the property to a government servant, the idea is
that the property should be restored to the original owner after the
necessity to retain it ceases. It is manifest that there may be two stages
when the property may be returned to the owner. In the first place it
may be returned during any inquiry or trial. This may particularly be
necessary where the property concerned is subject to speedy or natural
decay. There may be other compelling reasons also which may justify
the disposal of the property to the owner or otherwise in the interest of
justice. The High Court and the Sessions Judge proceeded on the
footing that one of the essential requirements of the Code is that the
articles concerned must be produced before the Court or should be in
its custody. The object of the Code seems to be that any property which
is in the control of the Court either directly or indirectly should be
disposed of by the Court and a just and proper order should be passed
by the Court regarding its disposal. In a criminal case, the police always
acts under the direct control of the Court and has to take orders from it
at every stage of an inquiry or trial. In this broad sense, therefore, the
Court exercises an overall control on the actions of the police officers in
every case where it has taken cognizance.
5. Coming now to the decision of the High Court that the articles in
question were never actually produced by the police before the Court,
we find that this is factually incorrect. It appears from the finding of the
High Court that immediately after the articles were recovered by the
police and the police submitted a charge-sheet to the Chief Judicial
Magistrate, it produced the articles before the Court, but the Court
directed the Sub-Inspector to retain the property until the same is
verified and valued by a goldsmith for which the Court moved the
higher authorities for sanction of necessary funds. The Sub-Inspector
was also directed to bring the goldsmith. In these circumstances, the
Sub-Inspector took back the articles and kept them in the guardroom of
the police station. It would thus appear that the articles were actually
produced before the Court but were retained by the Sub-Inspector
under the directions of the Court. A production before the Court does
not mean physical custody or possession by the Court, but includes
even control exercised by the Court by passing an order regarding the
custody of the articles. In the instant case when once the Magistrate,
after having been informed that the articles were produced before the
Court, directed the Sub-Inspector to keep them with him in safe
custody, to get them verified and valued by a goldsmith, the articles
were undoubtedly produced before the Court and became custodia legis.
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6. It is common ground that these articles belonged to the com-
plainant/appellant and had been stolen from her house. It is, therefore,
clear that the articles were the subject-matter of an offence. This fact,
therefore, is sufficient to clothe the Magistrate with the power to pass
an order for return of the property. 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. We do not agree
with the view of the High Court that once the articles are not available
with the Court, the Court has no power to do anything in the matter
and is utterly helpless.
7. In the instant case it is clear that the value of the property stolen is
easily ascertainable on the materials on the record and does not admit
of any difficulty. It is true that in the complaint Ext. 9 the total value
given by the appellant comes to Rs 13,320. But this cannot be a correct
criterion because the Court has to calculate the value of only that
property which has been recovered from the accused and seized by the
police. It may be that some property may not have been recovered at all.
The correct principle, therefore, to apply in this case would be to find
out if there is any material to show the value of the articles actually
seized by the police from the possession of the accused. It would appear
from Ext. 1 the charge-sheet that the total value of the articles which
were recovered from the five accused comes to Rs 10,049, which may be
rounded off to Rs 10,000. Exhibit 34 which is the report lodged by the
police regarding the property having been stolen also shows the value of
the property kept in the trunk to be Rs 10,050. This will appear from
Ext. 34 which gives a detailed and exhaustive list of the articles kept in
the trunk and the value thereof. In these circumstances, therefore, it
can be safely held that the value of the property recovered from the
possession of the five accused and stolen from the house of the
complainant was Rs 10,000. It is also clear that in the instant case, no
plea had been taken by the State that the property was lost inspite of
due care and caution having been taken by it or due to circumstances
beyond its control. On the other hand, while all the articles were stolen
from the trunk kept in the guardroom of the police station, except the
formality of a report having been lodged, no action seems to have been
taken by the State against the Sub-Inspector or the officers who were
responsible for the loss of the property, even to this date. In these
circumstances, therefore, the State cannot be allowed to successfully
resist the application filed by the appellant. The appellant is entitled to
receive the cash equivalent of the property lost which has been held by
us to Rs 10,000 and this amount should be paid to the complainant by
the State."
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15. In the case of Sunderbhai Ambalal Desai and Ors. Vs.
State of Gujarat reported in (2002) 10 SCC 283 the Hon'ble
Supreme Court dealt with seized vehicles. At paragraphs 7, 11
to 21 of the said case it was held as follows:-
"7. In our view, the powers under Section 451 CrPC 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
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.
.......
Valuable 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, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC 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 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that 8 photographs of such articles are attested or countersigned by the complainant, accused as 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 CrPC 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 be 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 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 purposes 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, a 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 hand over such vehicles to their owners or to the person from whom the said vehicles are seized by taking appropriate bond and 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 the vehicle 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 persons concerned.
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 a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with 9 the insurance company then the 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 the 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 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 of it after preparing necessary panchnama. If sample is required to be taken, sample may be 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 CrPC 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 Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that powers under Section 451 CrPC are properly and promptly exercised and articles are not kept for a long time at 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 High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly."
16. In the case of General Insurance Council Vs. State of A.P. reported in (2010) 6 SCC 768 the Supreme Court reiterated that need for compliance of directions given in the case of Sunderbhai Ambalal Desai and Ors. (supra). A similar view has been taken in the case of Biswajit Dey v. State of Assam reported in (2025) SCC OnLine SC 40 at para
23. 10
17. Several other High Courts, namely, the High Court of Karnataka in the case of K.W. Ganapathy Vs. State of Karnataka reported in 2002 SCC OnLine Kar 320, in the High Court of Tamil Nadu in the case of Sundaram Finance Ltd. Vs. State of Tamil Nadu reported in 2010 SCC OnLine Mad 3795, a Division Bench of the Delhi High Court in the case of Nidhi Kaushik Vs. Union of India (LPA 736 of 2013 decided on 26th May, 2014) and the decision of the Single bench of the Delhi High Court in the case of Manjit Singh Vs. State reported in 214 (2014) DLT 646 has summarized the principles to be applied while dealing with seized articles and section 451 to 457 of the Cr.P.C. The said principles are culled out hereinbelow:-
"54. 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 (supra), Sunderbhai Ambalal Desai v. State of Gujarat (supra), Sunderbhai Ambalal Desai v. State of Gujarat (supra) and General Insurance Council v. State of A.P. (supra).
55. 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.
56. 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.
57. The expeditious and judicious disposal of a case property would 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
58. 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 11
59. 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 panchnama of such articles; taking photographs of such articles and a security bond.
60. 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.
61. 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.
62. 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.
63. 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.
64. 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
65. 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 panchnama of the currency notes with their numbers or denomination; taking photographs of the currency notes; and taking a security bond.
66. 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.
67. 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.
Vehicles
68. 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.
69. 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.
70. 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.
71. Return of vehicles and permission for sale thereof should be the general norm rather than the exception.
72. 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. 12
73. 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
74. 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.
75. 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
76. 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 accordance with the rules. Arms and ammunitions
77. 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
78. 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.
79. 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
80. 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.
81. 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.
82. 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
83. 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.
18. On the issue of loss/theft/destruction of articles in police custody, it was held as follows:-
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Loss/theft/destruction of the case property in police custody
84. 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.
85. 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
86. The Court may impose any other condition which may be necessary in the facts of each case.
87. 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.
88. When the property has any evidentiary value, it is to be kept intact and the condition of non-alienation 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.
89. 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.
90. 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."
19. We are in complete agreement with the conclusion and guidelines of the single bench of the Delhi High Court. This Court however wishes to delve into the issue on a broader constitutional principle. This has to be borne in mind while 14 dealing with the applications seeking the return and recovery of the property, seized by the investigating agencies.
20. No person shall be deprived of his or her property without the authority of law, as declared by Article 300A of the Constitution of India. Therefore, when the property, so seized by the investigative agency, need not physically remain with the prosecution to bring the trial or litigation, relating to or connected with the seized property, to its logical conclusion, then the seized property shall be released to the rightful owner, or the person who is entitled thereto. As to who is the rightful owner or the person entitled to the possession of the property shall be guided by the proof based on preponderance of the probabilities.
21. However it is made clear that the release of the property in favor of the owner or the person found to be entitled to the possession of the properties shall not operate as the declaration of title of that person to the property which shall always be subject to the litigation, if any pending or to be instituted before the Civil Court.
22. The nature of restrictions, that may be imposed by the concerned Court, on the disposal of the property by the rightful owner while releasing the property to him or her, shall be guided by the consideration as to whether unconditionally enabling the rightful owner to dispose of the property will impact the pending trial or litigation. Imposition of stricter 15 stringent condition/restriction on the disposal of or dealing with the property by the owner shall be the exception. The rule is the release of the seized property to the rightful owner with minimal conditions/restrictions.
23. While releasing the property, the Court concerned shall, having regard to the nature of the property and the nature of the pending trial or litigation, see whether instead of imposing stricter restrictions on the disposal of the property, other arrangements and precautions (namely execution of bond and/or security) could suffice to enable the rightful owner to freely take back and dispose of the property on his or her own terms. However, the amount of the bond and security shall not be burdensome that the owner will be compelled to choose not to take back the property and rather to keep it in the custody of the Court or Police. The value of the property shall be a relevant consideration while determining the amount of the bond and security directed to be furnished as a condition, with the contemporaneous financial status of the person entitled to the property. The concerned Court shall direct the person, in whose favor the property is released, to inform the court when the property is mortgaged or disposed of during the pendency of the trial.
24. The Court concerned must be cautious while releasing the seized property during the pendency of a trial or litigation contrary to the release of the property after the conclusion of 16 the trial. The Court must adopt a liberal approach while releasing the property during the pendency of the trial or litigation having regard to the nature of the trial/litigation and the decisiveness and level of relevancy of the properties on the pending case. However, the court must be more liberal while dealing with the release of the property after the conclusion of the trial/litigation. Unnecessary continuation of the seized property in the possession of the state authorities or the court amounts to a violation of Article 300A without any authority of law.
25. While there is no fixed time-frame concerning the disposal of the application for the release of the seized property in the CrPC, the same has been mandated in the BNSS. This Court is of the view that the period stipulated in the provisions of the BNSS as regards the release of the seized property must be adopted and followed by the concerned Courts while releasing the seized property under the provisions of CrPC in respect of those cases which have been instituted before the BNSS came into force.
Additional Guidelines to be followed by the concerned Court while dealing with the applications for the proper custody or disposal of the property during the pendency of the trial/investigation/inquiry:-
I. Under the Section 497 of the BNSS 2023 the Magistrate is empowered to enquire into the ownership of the property 17 produced before it even at the stage of investigation by the police. Such power was not conferred on the Magistrate under Section 451 of the CrPC.
II. This Court is of the view that even in cases where the CrPC applies but not the BNSS, the police, upon seizing the property, shall, within 5 working days and not more than 7 days from the date of seizure, shall produce the seized property to the concerned magistrate/Court, who shall then enter into an inquiry as to what steps(including directing the police to find out the names of the persons to whom the property allegedly belongs to) shall be taken for the proper custody of the property or the disposal of the property.
III. The provisions relating to the return of the seized property are beneficial provisions for upholding the right under Article 300A of the Constitution. Hence, the same must be applied to the CrPC in so far as the beneficial provisions engrafted under the BNSS is concerned for the promotion and enforcement of the right to property under Art 300A notwithstanding the clarification given in the BNSS that the BNSS will not have application to the cases instituted before its commencement. IV. In so far as the proper custody of cash is concerned, when they cannot be handed over to the rightful owner, for reasons to be recorded in writing, the concerned magistrate/court must handover the property to a financial institution, recognized by the RBI, to secure the accrual of interest, as may be applicable, on the property.18
V. In so far as the property which is subject to speedy and natural decay, the concerned magistrate /Court is directed to construe the expression property which is prone to 'speedy and natural decay' to inter alia include the materials whose value may deteriorate over time, for example, precious metals, Vehicles, and stocks shares, etc. VI. Section 451 of CrPC as well as section 497 of BNSS which correspond to each other enables the magistrate/Court to dispose of the property if it is expedient to do so in the facts of the case. The said provisions may be applied by the Concerned Court even in respect of immovable property as the value thereof may be urgently required by the owner for inter-alia to meet medical, personal debts insolvency or for any other similar right.
VII. The concerned magistrate/Court must take photographs or conduct videography of the property and shall ensure the preparation of a section 65B certificate for the production of and the use of the said property as evidence during the trial. Sub-Section 3 and 4 of section 497 of BNSS provide for the said provision of taking photographs and conduction of videography. The concerned Magistrate/Court shall be guided by the provisions of BNSS while dealing with the case where the CrPC applies in so far as the photography and videography of the seized materials to be released is concerned. VIII. The decision to release or not to release the cease property must be taken within 30 working days from the date of the 19 filing of the application. Subsection 5 of section 497 of BNSS provides for this period.
Guidelines for the release of property or documents after the conclusion of the trial.
I. Section 452 of CrPC provides for the disposal of the property/document after the conclusion of the trial whereas Section 498 of the BNSS is the corresponding provision in that regard.
II. Neither CrPC nor BNSS fixes any time limit within which the Court/Magistrate has to dispose of the application for the release of the property/document, used during the trial or was the subject matter of the trial. The Court/Magistrate concerned must therefore, dispose of the application, if filed, for the release of the properties/document within 30 days from the date of the delivery of the judgment and pronouncement of sentence or, acquittal, as the case may be, in the trial provided that the property/document is not confiscated/ impounded as the outcome of the trial.
Guidelines on the payment of money to a person who has purchased the stolen property without knowing that the property was stolen.
i. Section 499 of BNSS which corresponds to Section 453 of CrPC provides for the payment of money(after conviction) recovered from a person during his arrest on the charge of him 20 stealing the property. The money is to be paid to the person who has purchased that stolen property in good faith. Section 453 of the CrPC has not stipulated the time period within which the application for the payment of such money is to be disposed of. Section 499 of BNSS however has stipulated a period of 6 months for delivering the money to the purchaser in good faith from the date of passing of the order, directing such a payment. Hence neither the BNSS nor the CrPC stipulates the period within which the actual application for the payment of the money is to be disposed of.
ii. Hence this court directs an application for the payment of money under section 499 BNSS or section 453 CrPC, as the case may be, shall be filed within a period of 15 days from the date of the conclusion of the trial, and the concerned Court/magistrate shall dispose of the application for the payment of money under section 499 BNSS and section 453 CrPC as the case may be, within a further period of 30 days from the date of the filing of the application. Guidelines as regards the disposal or delivery of the property which although has been seized by the police however has not been produced by the police during the trial or inquiry.
i. Section 457 of CrPC provides for a situation where the seizure of the property by the police has been reported to the magistrate/Court however the same has not been produced 21 during the trial or enquiry. Section 503 of the BNSS is the corresponding provision in this regard.
ii. The statute provides for 60 days and 90 days for the filing of the charge sheet by the police. However charge sheet can also be filed after that period and even after the filing of the first charge sheet, a supplementary charge sheet may also be filed after such a period. Therefore the absence of a timeline as regards the production of the property before the magistrate/Court which the prosecution does not wish to rely upon in the trial would jeopardize the rightful owner of the property. The rightful owner cannot be made to wait till the trial comes to an end.
iii. This court therefore is of the view that after seizing the property, the police in consultation with the prosecutor concerned shall within 120 days from the date of seizure or before the filing of the charge sheet as stipulated to be filed under the law, whichever is earlier, shall take a decision as to whether the seized properties will be relied upon by the Prosecution in the trial and the extent that the physical presence of the property is required.
iv. If before the filing of the charge sheet, the state decides that it will not rely on the properties, the same shall be informed to the Magistrate/Court, whereupon the Court/Magistrate shall within 30 days from the date of the communication of the decision hand over the property to the claimant of the property if the claimant is known 22 or On the expiry of 120 days from the date of the seizure of the property, the magistrate shall direct the State to hand over the properties to the claimant if known.
v. The Magistrate or Court will be at liberty to impose conditions on the claimant while handing over the property however the condition shall not be burdensome.
vi. If the claimant is not known, the magistrate within 7 days counted from the expiration of 120 days from the date of the seizure of the property or when the state does not wish to produce the property in the trial and inform the same before the filing of charge sheet, then within 7 days from the communication of such a piece of information, the concerned court/magistrate shall issue a notice/proclamation, giving the necessary description of the property, in the newspaper which is widely circulated and read by the people in West Bengal calling upon persons to take the property after establishing on preponderance of the probabilities that the notified property belongs to that person.
vii. As stipulated under section 503 of BNSS and section 457 of CrPC the person claiming to be the owner of the property shall get 6 months from the date of the publication of such notice to prove before the concerned Court/Magistrate that he is the rightful owner of the property.
23Guidelines as regards the seized vehicles under the NDPS Act.
25. The decision of the Supreme Court in Bishwajit Dey v. State of Assam (Supra) in this regard may be referred to:-
"23. In the absence of any specific bar under the NDPS Act and in view of Section 51 of NDPS Act, the Court can invoke the general power under Sections 451 and 457 of the Cr. P.C. for return of the seized vehicle pending final decision of the criminal case. Consequently, the trial Court has the discretion to release the vehicle in the interim. However, this power would have to be exercised in accordance with law in the facts and circumstances of each case.
29. Though seizure of drugs/substances from conveyances can take place in a number of situations, yet broadly speaking there are four scenarios in which the drug or substance is seized from a conveyance. Firstly, where the owner of the vehicle is the person from whom the possession of contraband drugs/substance is recovered. Secondly, where the contraband is recovered from the possession of the agent of the owner i.e. like driver or cleaner hired by the owner. Thirdly, where the vehicle has been stolen by the accused and contraband is recovered from such stolen vehicle. Fourthly, where the contraband is seized/recovered from a third- party occupant (with or without consideration) of the vehicle without any allegation by the police that the contraband was stored and transported in the vehicle with the owner's knowledge and connivance. In the first two scenarios, the owner of the vehicle and/or his agent would necessarily be arrayed as an accused. In the third and fourth scenario, the owner of the vehicle and/or his agent would not be arrayed as an accused.
30..... Consequently, it is only in the first two scenarios that the vehicle may not be released on superdari till reverse burden of proof is discharged by the accused-owner. However, in the third and fourth scenarios, where no allegation has been made in the charge-sheet against the owner and/or his agent, the vehicle should normally be released in the interim on superdari subject to the owner furnishing a bond that he would produce the vehicle as and when directed by the Court and/or he would pay the value of the vehicle as determined by the Court on the date of the release, if the Court is finally of the opinion that the vehicle needs to be confiscated."
26. In the light of the above, since trial court has been concluded in our case, this Court directs that the gold ornaments in the custody of the appellant be duly photographed and videographed in presence of a Magistrate and a detailed inventory be made in addition to the one already made. The inventory list shall be duly certified by the 24 Magistrate and countersigned by a responsible officer of the appellant.
27. The appellant shall thereafter be given exclusive custody of the seized gold ornaments and articles and the appellant shall be entitled to deal with or dispose of the same as per their business practices.
28. In so far as the directions contained hereinabove, this Court directs that a copy of this order be sent to the Registrar General of this Court for circulation amongst all the District Judges in the State and Principal Secretary, Govt. of W.B. for onward communication to the concerned ACJM and/or Sessions Judge for necessary compliance.
29. With the aforesaid observations, CRA 649 of 2018 is allowed and disposed of.
30. There shall be no order as to costs.
Re.: CRA 589 of 2017 With CRA 621 of 2017 With CRA 641 of 2017
31. These matters may be listed on the fixed date i.e. 18th February, 2025.
(Rajasekhar Mantha, J.) (Ajay Kumar Gupta, J.)