Himachal Pradesh High Court
Tilak Ram S/O Late Sh. Sis Ram vs State Of H.P on 14 September, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No. 143 of 2022
Between:-
TILAK RAM S/O LATE SH. SIS RAM
PRESENTLY AGRICULTURIST,
AGED ABOUT 42 YEARS, R/O
VILLAGE JAISHI, PO BHARARA,
TEHSIL SUNNI, DISTRICT SHIMLA,
H.P.
....PETITIONER
(BY MR. HITENDER THAKUR
& MR. RAHUL GAUTAM
ADVOCATES)
AND
1. STATE OF H.P THROUGH
SECRETARY (HOME) TO THE
GOVERNMENT OF H.P. SHIMLA,
(HP).
2. THE SUPERINTENDENT OF
POLICE, SHIMLA, TEHSIL &
DISTRICT SHIMLA, 171 001 (HP)
3. THE SHO POLICE STATION SUNNI,
TEHSIL SUNNI, DISTRICT SHIMLA,
H.P.
....RESPONDENTS
(BY MR. NARENDER GULERIA, ADDITIONAL
ADVOCATE GENERAL)
Whether approved for reporting:-
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2
This petition coming on for order this day, Hon'ble Mr.
Justice Sandeep Sharma, passed the following:-
ORDER
.
Instant Criminal Revision Petition filed under Section 482 of Cr.P.C. lays challenge to order dated 30.06.2021 passed by learned Additional Sessions, Judge (I), Shimla, H.P., in Cr.MP. No 42-S/4 2021, tilted as Tilak Ram versus State of H.P., whereby an application under Section 451 of Cr.P.C., filed by the applicant-accused (hereinafter referred to as the accused) for release of currency notes amounting to Rs. 1,50,518/-, allegedly recovered by the police alongwith contraband from the house of the petitioner in case FIR No. 45 of 2020, under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, registered at PS Sunni, District Shimla, H.P., came to be dismissed.
2. Precisely, facts of the case, as emerge from the record are that contraband weighing 153 grams of Charas came to be recovered from the house of accused from a bag, in which allegedly 153 grams Charas was kept in one pocket and the currency notes amounting to Rs. 1,50,518/- were kept in another pocket. Since both contraband and currency notes were taken into possession from the same bag, the police presuming currency notes to be the sale proceeds of the contraband, sealed the same alongwith contraband. After completion of investigation, police presented the challan in the competent court of law, but before same could be taken to its logical end, accused preferred an application Under Section 451 Cr.P.C (Annexure P-3), praying ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 3 therein to release the currency notes recovered from his possession in case FIR No. 45 of 2020.
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3. In the aforesaid application, accused averred that upon some false and frivolous complaint, police visited the house of the accused in odd hours and ransacked his house. He alleged that since during investigation, Investigating Officer was unable to find anything incriminating in the house, he seized currency notes amounting to Rs. 1,50,518/- from his possession and arrested him in a false case of possessing 153 grams of Charas. He further averred that he was owner of vehicle No. HP-51A-2144, which he had sold to his brother in law, namely Shri Desh Raj, who purchased the said vehicle in the name of his wife. Money allegedly recovered from the applicant was given to him by his brother- in- law in the month of May, 2020, whereas, a sum of Rs. 50,000/- was arranged by him to make the entire payment of Rs.
1,50,518/- to the Finance Company, from where he had taken the loan to purchase the aforesaid vehicle.
4. Apart from above, accused averred in the application that challan stands presented in the competent court of law and there is no evidence to the effect that the accused indulges in the sale of Narcotic drugs and as such, currency notes recovered by the Investigating Agency are not required during trial, whereas aforesaid money is required by the accused to clear the loans taken from the Finance Company. The accused also averred in the application that since currency notes were seized after taking photographs and seizure memo was prepared in the presence of witnesses, same can be ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 4 proved during recording of evidence by proving seizure memo and photographs in accordance with law.
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5. Aforesaid prayer made on behalf of accused came to be resisted on behalf of the respondent/State, wherein it claimed that since currency notes amounting to Rs. 1,50,518/- came to be recovered from the bag containing contraband, there is a strong reason to presume and believe that money recovered from the bag was sale proceeds of the contraband and as such, it cannot be released till the time session trial is not concluded.
6. Having taken note of aforesaid pleadings and perusal of the record of respective parties, court below dismissed the application vide order dated 28.05.2022, on the ground that huge currency notes of Rs. 1,50,518/-
cannot be found in the house and evidence is yet to be led by the prosecution to prove that currency recovered from house of the petitioner is proceeds of the crime. Apart from the above, court below also observed in the order impugned in the instant proceedings that since property seized and sealed is to be opened in the court to prove the link and recovery, it may not be in the interest of justice to accept the prayer made on behalf of accused for release of currency notes. In the aforesaid background, accused approached this court in the instant proceedings, praying therein to quash and set-aside the aforesaid order and release the currency.
7. Mr. Rahul Gautam, learned counsel representing the accused vehemently argued that impugned order is contrary to the provision of law and as such is not sustainable in the eye of law. He submitted that there is no ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 5 material, whatsoever on record to establish prima facie case that a sum of Rs.
1,50,518/- allegedly recovered from the bag is the sale proceeds of contraband.
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He further submitted that careful perusal of Section 62 of the Act, reveals that only sale proceeds of illicit drug can be confiscated and for that prosecution is required to prove that such substance was sold by petitioner or had knowledge that this amount was the price of that substance. He further invited attention of this Court to Section 63 of Narcotic Drugs & Psychotropic Substances Act, wherein procedure for making confiscations has been provided.
8. Perusal of the aforesaid section reveals that whether the accused is convicted, acquitted or discharged, the court shall decide whether any article or thing seized under this Act is liable to confiscated under Section 60 or 61 or Section 62 and, if it decides that the article is so liable, it may order confiscation accordingly.
9. Mr. Rahul Gautam, learned Counsel for the petitioner submitted that once accused took a specific plea that he had procured the aforesaid money on account her having sold his car to his brother in law and the same was meant to be given to Finance Company from where he had taken loan, Investigating Agency otherwise was under obligation to ascertain aforesaid factum, but instead of verifying the aforesaid fact investigating agency without their being cogent evidence wrongly arrived at conclusion that the money recovered from the bag is the sale proceeds of the crime. Specific stand taken by the accused is that no Charas was ever recovered from his house. He further submitted that since photographs of the currency already stand clicked ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 6 at the time of its recovery and the police has prepared the recovery memos, there is no justification to withhold the aforesaid money during trial, especially .
when the same can be used by accused for his own expenditure. He further submitted that currency recovered from the accused is prone to natural decay while kept in Maalkhana. He further stated that the aforesaid amount can be released on Sapurdari and specific undertaking from the accused that in the event of his being convicted or in the event of his found guilty of indulging in illegal trade of contraband, he would return the aforesaid amount.
10. While refuting aforesaid submissions made on behalf of the counsel representing the accused, Mr. Narender Guleria, Learned Additional Advocate General, contended that once, it is not in dispute that amount sought to be released was recovered from the bag containing contraband, same was rightly confiscated or seized being sale proceeds of the crime. Mr. Narender Guleria, learned Additional Advocate General further submitted that plea/claim raised on behalf of accused that amount recovered from the bag containing Charas was not sale proceeds is yet to be tested/ascertained in the light of totality of evidence led on record by the prosecution. He further submitted that since aforesaid amount is a case property, same needs to be retained till the time trial is not concluded, because in the event of its being released, it may be difficult for prosecution to prove the recovery of the same.
11. Having heard learned Counsel for the parties and perused the material on record, this court finds that the case of the prosecution is that sum of Rs. 1,50,518/- was recovered from one pocket of the bag allegedly ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 7 containing contraband. To the contrary, the case of the accused is that since nothing could be found in his house, police falsely planted case of recovery of .
Charas and wrongly seized the currency amounting to Rs. 1,50,518/- to prove the case against the petitioner under ND&PS. Before ascertaining the rival contentions made on behalf of learned counsel for the parties, this court finds it necessary to take note of the judgment passed by the Hon'ble Apex Court in Sunderbhai Ambalal Desai versus State of Gujarat, (2002), 10 Supreme Court Cases, 283, wherein guidelines came to be framed with regard to procedure to be followed at the time of disposal of articles kept in police custody pending trial. In the aforesaid judgment, the Hon'ble Apex Court while advising the Court below to exercise the power under Section 451 Cr.P.C. expeditiously and judiciously observed herein as under:-
"7. In our view, the powers under Section 451 Cr.P.C.
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 panchanama before handing over possession of 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 properly 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. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 8 missing, the question was with regard to payment of those articles. In that context, the Court observed as under- "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."
9. The Court further observed that 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.
10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.
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 ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 9 police custody for 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.
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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 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. Vehicles
15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 10 the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the 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 vehicles 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 concerned persons.
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 third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then 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 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 it of after preparing necessary panchnama. If sample is required to be taken, sample may 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 Cr.P.C. 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 ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 11 may not be raised that the article which was seized was not the same.
21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the .
concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. 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 concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly".
13. In the aforesaid judgment, it has been specifically held by the Hon'ble Apex Court, that it is of no use to keep valuable articles, such as golden or silver ornaments or articles studded with precious stones, in police custody for the years till the trial is over and if there is any material on record to prove the fact that such articles belong to the complainant, such article can be handed over to him preparing detailed proper panchanama of such articles, taking photographs of such articles and a bond that such articles would be produced if required at the time of trial. In the instant case currency sought to be released was taken in to possession by the police after having taken its photographs and preparing the recovery memos. It being so, same can be proved by prosecution while inviting attention of the Court below towards photographs, recovery memos. Otherwise also once factum with regard to recovery of Rs. 1,50,518/- is not being denied by the accused, rather his specific case is that police by planting contraband at his house unauthorizedly and illegally seized his money and such, no prejudice shall be caused to the prosecution if the aforesaid amount is ordered to be released in favour of the ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 12 accused, who can use the same for discharging his liability, if any towards the Financial Company.
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14. A perusal of the status report, Annexure P-4, filed by the Investigating Agency in the aforesaid proceedings under Section 451 reveals that at first instance prosecution had no objection in releasing the aforesaid property in favour of accused, however, during the pendency of the application, prosecution filed another status report objecting therein release of the currency notes i.e. Annexure P-5, on the ground that being a case property, it is yet to be required to be proved in accordance with law. Since photographs of the currency recovered from the currency of accused are already on record and apart from that recovery memos are also there to prove recovery, there is no occasion, if any, to refuse the prayer made on behalf of the accused that too on the ground that before seeking release of currency, accused is required to have declaration from the Civil Court that money sought to be released belongs to him. The aforesaid findings returned by the court below is totally absurd, especially when it is none of the case of the prosecution that money allegedly recovered by it alongwith contraband belongs to third party, rather specific and precise case of the prosecution is that currency notes amounting to Rs. 1,50,518/- recovered from the house of ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 13 the accused is proceeds of the crime. If it is being so, there is no occasion for accused to get the declaration of the civil court that he is owner of the property sought to be released by him. Once, accused setup a case that money recovered .
from his house was given to him by his brother in law as sale proceeds of the vehicle, which he had sold and he had kept this money to be given to Finance Company, the investigating agency ought to have verified aforesaid fact before opposing prayer made on behalf of the accused for release of case property. The case of prosecution is that 153 grams of Charas alongwith currency of
15.
r to Rs.1,50,000/-, was seized from the bag kept in the house of the accused, but definitely cost of 153 grams of Charas cannot be of Rs. 1,50,000/-
No doubt Section 63 gives ample power to the Court to confiscate any article or things seized under this Act irrespective of the fact whether the accused is convicted acquitted or discharged. But such power can be exercised after having found accused guilty of his having committed an offence punishable under Section 20 of the NDPS Act. Question of confiscation is not to be decided at the time of considering prayer made on behalf of the accused for release of the case property, rather at that stage question for determination is whether amount seized is the sale proceeds of the contraband or otherwise. In the absence of any material having come on record to prima facie link the amount sought to be recovered from the house of the accused with the sale/purchase of the Narcotics, it will not be in the interest of justice and fair play to refuse the prayer made on behalf of accused for release of amount recovered from his house.
::: Downloaded on - 24/12/2022 09:45:26 :::CIS 1416. Coordinate Bench of this Court, in case titled as Pradeep Sunta versus State of H.P. and Another, decided on 3rd January, 2020, SCC Online .
HP 40(2020) 212 AIC (sum 27) 14, while placing reliance upon judgment rendered by the Hon'ble Supreme Court Sunderbhai Ambalal Desai supra observed that mandate of Sections 451 and 457 with regard to seizure of the vehicle /articles is that when photographs of property/articles are taken, same can be used as secondary evidence during trial. Physical production of property sought to be released can be dispensed with. A Coordinate Bench of this Court also held that the property can be released after any undertaking/guarantee from the persons seeking release that in the event of its being confiscated under Section 63 of ND&PS Act, he would return the same.
"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 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 ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 15 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 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 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".
17. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and same is accordingly allowed. The impugned order dated 30.06.2021 passed by the Ld. Additional Sessions Judge (I), Shimla, is quashed and set-aside and the court below is directed to release the currency ::: Downloaded on - 24/12/2022 09:45:26 :::CIS 16 notes amounting to Rs. 1,50,518/- in favour of the accused after his having furnished undertaking that in the event of his called upon to deposit the .
property released in his favour, he would deposit the same.
(Sandeep Sharma)
Judge
September 14, 2022
(subhash)
r to
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