Gujarat High Court
Soni Chimanlal Jethalal vs State Of Gujarat And Anr. on 25 January, 1993
Equivalent citations: (1994)2GLR1100
JUDGMENT J.N. Bhatt, J.
1. Petitioner has assailed the judgment and order of the learned Additional Sessions Judge, Rajkot, pertaining to the disposal of the muddamal gold ingot, dated 10-9-1982, passed in Criminal Appeal No. 31 of 1981 confirming the judgment and order of the learned Judicial Magistrate, First Class, at Rajkot, dated 31-7-1981, below application Exh. 76 in Criminal Case No. 366 of 1978, by invoking the aids of provisions of Section 397 read with Section 401 of the Criminal Procedure Code ("Code" for short).
2. A resume of the salient facts leading to the birth of the present revision may, shortly, be stated at this juncture.
3. Present petitioner is a goldsmith from whose custody the muddamal - 3 ingots of gold and one ingot of silver, small 40 diamonds and 120 white pearls were seized by the police in the course of the investigation, which culminated into a criminal trial, being Criminal Case No. 366 of 1978.
4. On 14-12-1977, between 2 p.m. and 8 p.m., at Rajkot, a theft was committed in the residential premises of respondent No. 2 herein, who is the original complainant in the aforesaid trial, in respect of gold ornaments valued at Rs. 24,580/- Five accused persons were tried in the trial Court for the offences punishable under Sees. 454, 457 and 380 of the Indian Penal Code and out of the five accused persons, original accused Nos. 1 and 2 were charged for the offences punishable under Sees. 454, 457 and 380 of the Indian Penal Code and accused Nos. 3 to 5 were charged for the offences under Section 414 of the Indian Penal Code.
5. Upon assessment and the appreciation of the evidence of the prosecution, the learned Judicial Magistrate, First Class, at Rajkot, was pleased to acquit all the accused persons and also held that the order relating to the disposal of the muddamal shall be passed after making due inquiry under Section 452 of the Code. The inquiry was as such held. The present petitioner was examined, at Exh. 77, in the trial Court. The complainant was also heard. After examining the facts and circumstances and the evidence in the said inquiry under Section 452 of the Code, the trial Court was pleased to order that muddamal articles should be returned to the complainant-respondent No. 2 herein.
6. Being aggrieved by the said order pertaining to the disposal of the muddamal articles under Section 452 of the Code passed by the learned trial Magistrate, the petitioner herein, who was a prosecution witness and goldsmith from whose custody the muddamal articles were seized, challenged the said order by filing Criminal Appeal No. 31 of 1981 under the provisions of Section 454 of the Code in the Sessions Court, at Rajkot. The appeal came to be dismissed on 10-9-1982 confirming the order of the learned trial Magistrate with regard to the disposal of muddamal articles. Therefore, this revision is preferred by the prosecution witness and goldsmith from whose custody the muddamal articles were seized.
7. Learned Counsel for the petitioner has, forcefully, contended that the impugned orders 'passed by the Courts below in respect of muddamal articles are not only perverse but are illegal. On examination of the facts and circumstances emerging from the record of the present case, this submission appears to be sustainable. No doubt, the jurisdictional sweep of this Court in a revision like one on hand is very much circumscribed. Ordinarily, the revisional Court will not interfere with the concurrent finding of facts recorded by the Courts below. Having given anxious thoughts to the facts and circumstances emerging from the evidence, it is crystal clear that the impugned order relating to the disposal of the muddamal articles is not only unjustified but is based on evidence which is not legal evidence. The trial Court placed reliance on the documentary evidence produced, at Exhs. 32, 78 and 39. Relying on the aforesaid documentary evidence, the Courts below made an inference that the muddamal gold ingots which were recovered from the petitioner must have been made from the gold ornaments sold by the accused/original accused No. 3 to the petitioner and the said ornaments must be belonging to the original complainant/respondent No. 2 herein. Such an inference made by the Courts below from the aforesaid documentary evidence does not constitute any reliable and acceptable legal evidence. Having examined the aforesaid documentary evidence, one would be tempted to make such an inference but it is not sufficient to furnish a direct link between the seized muddamal gold and the stolen gold ornaments.
8. The scope of the inquiry and the powers exercisable under the provisions of Sees. 452 and 454 of the Code are, undoubtedly, summary. The Courts do not adjudicate upon civil rights of the parties in such a case while dealing with the disposal of the muddamal articles at the conclusion of the trial. Ordinarily and as a general rule, the muddamal property should be returned to the person from whose custody it is seized in the case where acquittal is ordered. Thus, the general rule is that the property seized from a person should be returned to him when he is acquitted of the charge. No doubt, this rule has exceptions when the Criminal Court finds that the property was in possession of the complainant and the accused took it away without his permission and it was subsequently recovered from his possession by the police and in that case the muddamal article should be ordered to be returned or restored to the complainant. Thus the general rule has certain and several exceptions depending on the circumstances of each case and there cannot be any straight-jacket formula and, therefore, no person can claim, as of right, that the property seized from him should be returned to him in such a contingency.
9. In the present case, the muddamal articles are gold ingots. Admittedly, they are not the same articles which were stolen from the residence of the original complainant. The theft was committed in respect of gold ornaments, as per the prosecution case. However, the prosecution has failed to prove the charges against the accused. With the result, the accused was accorded acquittal. If it is proved in the course of the inquiry or to the satisfaction of the Court that the gold ingots or gold nuggets formed part of the muddmal articles and as such were prepared from the gold ornaments stolen, then it is open for the Court to direct the return of the said gold ingots or muddamal articles to the owner of the ornaments even in the event of the acquittal of the accused. The learned trial Magistrate has ordered to return the gold ingots or nuggets to be returned to the complainant after holding an inquiry. While taking such a decision, the complainant has not been able to give any evidence to prove that the nuggets were made out of the gold ornaments which were stolen from the house of the complainant. Therefore, it was contended before this Court that since the complainant has failed to prove the ownership of gold nuggets, the petitioner who is a goldsmith, from whose custody the gold ingots were seized, should be returned the muddamal gold. This submission itself is not sufficient to hold that since the complainant has not led any evidence to prove the ownership of the muddamal gold ingots, the inquiry after conclusion of the trial as contemplated under Section 452 of the Code is not a criminal trial. No. doubt, it is a summary inquiry. In such an inquiry, decision can be reached even on the preponderance of the probability taking into account the material available before (he Court regardless of the onus to prove. That is not all. The learned trial Magistrate based his conclusion to return the muddamal gold to the complainant on the basis that the petitioner herein who is an original prosecution witness - a goldsmith from whose custody the gold ingots were recovered, had a guilty conscious as difference was noticed between the bill at Exh. 32 and entries in the Gold Control Register, at Exhs. 78 and 79. After having examined the said entries and the contents of the bill, at Exh. 32, it can only be contended that the bill might have been subsequently created and, therefore, there may be guilty conscious on the part of the petitioner/original prosecution witness, goldsmith. But could it be said that that aspect itself would constitute an evidence which would furnish direct link between the muddamal gold ingots and the stolen gold ornaments from the residence of the complainant? Answer would be no ! The muddamal gold is not the same which was stolen. The theft was committed in respect of gold ornaments. According to the prosecution case stolen ornaments were sold by the accused to the goldsmith-the petitioner herein. In order to hold that the gold ingots recovered from the possession of the petitioner during the course of the investigation were converted out of the gold ornaments stolen from the residence of the complainant, this link is required to be established. The learned trial Magistrate and the learned Additional Sessions Judge, with due respect, reached to the conclusion that the gold ingots or nuggets should be returned to the original complainant as the petitioner could not show the bona fides while making bill, at Exh. 2 and which is in contradiction of the documentary evidence of entries made in the Gold Control Register, at Exhs. 78 and 79. With due respect to the Courts below, this aspect itself would not be sufficient to reach to the conclusion that the link is established. Unfortunately, this aspect is not duly appreciated by the Courts below and, therefore, this Court has no option but to interfere with the impugned orders in this revision.
10. In view of the facts and circumstances narrated hereinbefore, there is no fit case to make a departure from the general rule. General rule is that any property seized from a person should be returned to him if he is acquitted of the charge. It is the general rule that in case of acquittal, ordinarily, the property should be returned to the person from whose custody the muddamal articles were seized in the course of the investigation or in the course of trial. No exceptional case is made out which would warrant the departure from that general rule. No doubt, melted gold could be returned to the complainant if there was a direct link between the muddamal articles seized and the gold ornaments stolen from the residence of the complainant in view of the provisions of Section 452(5) of the Code.
11. However, in the present case, there is no evidence to furnish the direct link between the seized gold and the stolen gold ornaments. This is a case wherein the gold ingots or nuggets were recovered or seized by the police during the course of the investigation from the custody of a third party, i.e., a goldsmith-Soni Chimanlal Jethalal who is the present petitioner. He has claimed over the muddamal articles-gold ingots. The main anxiety of the inquiry under Section 452 of the Code should be to see as to who is the person who is best entitled to the possession of the muddamal articles at the conclusion of the trial or inquiry. Needless to mention that the question of title to the property or ownership of the muddamal articles is not adjudicated upon by the Courts below in an inquiry under Section 452 of the Code and, therefore, if the aggrieved party so desires, may establish his or her title over the muddamal article or ownership or title over the muddamal article even by resorting to civil remedies. But in so far as the proceedings under Section 452 of the Code are concerned, the Court is required to consider as to who is the person best entitled to have possession of the muddamal articles at the conclusion of the trial. Ordinarily, therefore, in absence of any exceptional circumstances, as narrated above, the person from whose custody the muddamal articles are seized, should be given the muddamal articles at the conclusion of the trial, which culminated into acquittal. No exceptional case is made out.
12. Having regard to the facts and circumstances narrated hereinbefore, this Court has no hesitation in holding that the impugned order passed by the learned Judicial Magistrate, First Class, at Rajkot, on 31-7-1981, and confirmed by the learned Additional Sessions Judge, at Rajkot, on 10-9-1982, in Criminal Appeal No. 31 of 1981 is not only erroneous but is perverse and illegal. Therefore, it is required to be quashed and set aside. Therefore, the muddamal articles in question, now, shall be returned to the petitioner herein Soni Chimanlal Jethalal, who is a goldsmith and prosecution witness, from whose custody they were seized during the course of the investigation by the police.
13. In the result, this revision is allowed. The muddamal gold ingots in question shall be returned to the petitioner-Soni Chimanlal Jethalal. Rule made absolute to the aforesaid extent.