Gujarat High Court
Arun Sagarmal Jain Proprietor New ... vs State Of Gujarat on 12 October, 2023
NEUTRAL CITATION
R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 10997 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ARUN SAGARMAL JAIN PROPRIETOR NEW NATIONA LJEWELERS
Versus
STATE OF GUJARAT
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Appearance:
JATIN V YADAV(8946) for the Applicant(s) No. 1
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 12/10/2023
ORAL JUDGMENT
1. The present petition is filed by the petitioner seeking for the following reliefs:
Page 1 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined "(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside the order dated 10.08.2021 passed by the learned 3rd Additional Sessions Judge, Valsad at Vapi, in Criminal Appeal No.06 of 2021 (At ANNEXURE-A hereto) as well as the order dated 12.02.2020 passed by the learned Judicial Magistrate, First Class, Umbergaon, in Muddamal Application No.241 of 2019 in Criminal Case No.92 of 2017.
(Annexure-B hereto), and further be pleased to release the muddamal which is subject matter of said application;
B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the order dated 10.08.2021 passed by the learned 3rd Additional Sessions Judge, Valsad at Vapi, in Criminal Appeal No.06 of 2021 (At ANNEXURE-A hereto) as well as the order dated 12.02.2020 passed by the learned Judicial Magistrate, First Class, Umbergaon, in Muddamal Application No.241 of 2019 in Criminal Case No.92 of 2017. (Annexure-B hereto) and further be pleased to grant interim custody of muddamal to the petitioner;
Page 2 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case:"
2. Brief facts as per the case of the petitioner in this petition are as such that on 26.11.2016, the orig. accused no.1 & 2 were caught by the police with the alleged Muddamal of 15 gold biscuits of 1.5 kilogram, and allegedly, as the orig. accused no.1 & 2 were not able to satisfy the police about the possession of the said gold biscuits, the police seized the same under section 102 of the Code of Criminal Procedure and arrested the said orig. accused no.1 & 2, and thus, it is alleged that the orig. accused no.1 & 2, in connivance with each other, have committed the alleged offences. With the aforesaid and certain other allegations, the F.I.R. is filed.
thereafter, the sheet charge came to be filed pursuant to the aforesaid F.I.R. and the same got culminated into the Criminal Case No.92 of 2017 and the said orig.
accused no.1 & 2 came to be acquitted from the said alleged offences under section 124 of the G.P. Act vide order dated 04.08.2018 passed by the learned 3rd Additional Judicial Magistrate, First Class, Umbergaon. It Page 3 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined is further the case of the petitioner in this petition that vide aforesaid acquittal judgment as the learned trial court has confiscated the alleged Muddamal 15 gold biscuits of 1.5 kilogram in favor of the Government, therefore, the petitioner had preferred an appeal before the Appellate Court being Criminal Appeal No.93 of 2018, which was partly allowed and the part of said order with respect to the confiscation of the alleged Muddamal gold was quashed and the learned trial court was directed to conduct the inquiry regarding the ownership of the same and the petitioner was asked to adduce the evidence regarding the same vide order dated 31.05.2019 passed by the learned Sessions Judge, Valsad.
It is further the case of the petitioner in this petition are as such that during the pendency of the proceeding of trial, the orig. accused persons had preferred the muddamal application below Exh.22 under Section 451 of the Code of Criminal Procedure for releasing the alleged Muddamal of 15 gold biscuits of 1.5 kilogram, which was also rejected vide order dated 15.09.2017 passed by the learned trial court. The petitioner craves leave to refer to and rely upon the Page 4 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined same thereafter, the time of hearing, if required.
Thereafter, as the learned Sessions Judge has remanded back the case, the petitioner preferred fresh muddamal application under section 452 of the Code of Criminal Procedure, 1973, for releasing the muddamal being 15 gold biscuits of 1.5 kilogram, which was rejected vide order dated 12.02.2020 passed by the learned Judicial Magistrate, First Class, Umbergaon, in Muddamal Application No.241 of 2019 in Criminal Case No.92 of 2017.
Therefore, the present petitioner had preferred an appeal before the appellate court being Criminal Appeal No.06 of 2021, challenging the aforesaid order dated 12.02.2020 passed by the learned Judicial Magistrate, First Class, Umbergaon, which was dismissed vide order dated 10.08.2021 passed by the learned 3rd Additional Sessions Judge, Valsad at Vapi, in Criminal Appeal No.06 of 2021. Being aggrieved dissatisfied by and the aforesaid the impugned order dated 10.08.2021 passed by the learned 3rd Additional Sessions Judge, Valsad at Vapi, in Criminal Appeal No.06 of 2021 as well as the order dated 12.02.2020 passed by the learned Judicial Page 5 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined Magistrate, First Class, Umbergaon, in Muddamal Application No.241 of 2019 in Criminal Case No.92 of 2017. Hence, the present petition is preferred.
3. Heard the learned counsel Mr. P.P. Majmudar with Mr. Keval R. Dholakiya, the learned counsel for the petitioner and Mr. Chintan Dave, the learned Additional Public Prosecutor (APP) for the respondent - State.
4.1 Learned counsel Mr. P.P. Majmudar for the petitioner has drawn my attention to the fact that, while deciding Criminal Case No. 92 of 2017, the trial court has passed an order to confiscate the gold biscuits in question in the Government Treasury. The petitioner has preferred an appeal bearing Criminal Appeal No.93 of 2018, before the appellate court, which has been partly allowed by the learned Sessions Judge, Valsad, on May 31, 2019, by quashing the trial court's order pertaining to the confiscation of gold and directing the trial court to hold an inquiry after providing the petitioner an opportunity to produce necessary evidence.
4.2 Subsequently, the petitioner has filed an application Page 6 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined under Section 451 of the Criminal Procedure Code before the learned Magistrate, being Criminal Misc. Application No.241 of 2019. On February 12, 2020, the trial court rejected the application under Section 452 of the Criminal Procedure Code for the return of the gold in question, which is currently with the Court as Muddamal, and directed the confiscation of these gold biscuits in the Government Treasury. In response, the petitioner filed a Revision Application before the learned 3rd Addl. Sessions Judge, Valsad at Vapi, through Criminal Appeal No.6 of 2021, which was also dismissed on August 10, 2021.
4.3 Following this, the petitioner has initiated this petition and argued that when accused Nos.1 & 2 were acquitted from the alleged offense under Section 124 of the Gujarat Police Act by the trial court, the Muddamal of 15 gold biscuits, weighing 1.5 k.g., which, according to the petitioner, belongs to them. Consequently, the petitioner produced on record necessary documents to the concerned trial court under a Section 452 application.
However, the trial court did not properly deal with the submissions made at the bar and has not conducted the Page 7 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined inquiry as previously directed by the appellate court in the prior round of litigation. Therefore, it is contended that the trial court's order under Section 452 of the Criminal Procedure Code is inherently illegal, unjust, improper, and contrary to the settled position of law.
4.4 Moreover, it is argued that the mere discrepancies between the bills provided by the petitioner and other materials, as well as some admissions made by the petitioner, do not provide sufficient grounds to reject the application under Section 452 of the Criminal Procedure Code, 1973. The appellate court also failed to give proper consideration to the impugned orders passed by the trial court. As a result, it is asserted that both lower courts have committed significant errors in fact and law by not considering the available evidence on record.
4.5 Furthermore, it is maintained that the appeal filed under Section 454 of the Criminal Procedure Code was not properly considered by the appellate court, as it did not provide compelling and well-founded reasons.
Therefore, this present petition necessitates consideration under Section 226 of the Constitution of India, as well Page 8 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined as under Section 482 of the Criminal Procedure Code, due to the substantial legal errors committed by both courts below. Therefore, he has prayed to allow this petition in view of the judgment of the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604.
5. On the contrary, Mr. Chintan Dave, the learned Additional Public Prosecutor (APP) for the respondent -
State, has brought to notice of this Court to the findings of both the courts below and has asserted that both courts have concurrently concluded that the present petitioner lacks evidence to establish ownership of the gold biscuits in question. Furthermore, he has submitted that essentially, the direction, given by the appellate court in the earlier round of litigation in Criminal Appeal No.93 of 2018, is substantially complied with as the petitioner has filed the application under Section 452, whereby the Court has inquired about various aspects, giving the petitioner an opportunity to produce the bills However, it appears that these bills do not align with the materials available in the record. Contrarily, at the time the police seized the gold, the petitioner also failed Page 9 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined to produce any supporting bills for ownership of said gold. Therefore, the has prayed to dismissed this petition.
6.1 I have considered the rival submissions made at the bar. I have also considered the affidavit as well as documents available on the record of this Court. It transpires that the petitioner now claims that at the relevant time, someone entrusted him with the gold for crafting jewelry. When he was transferring the gold to Ambika Jewelers for this purpose, the jewelry could not be made. Subsequently, the gold was sent again to Palgarh. During this process, Ambika Jewelers replaced the gold with an equivalent quality, only differing in serial number. Thus, the serial numbers on the gold varied, causing a mismatch with the numbers on the bills. The argument presented by the present petitioner through the additional affidavit is not convincing one, and the documents attached to the affidavit do not instill any confidence. The petitioner had the opportunity to produce these materials and make the necessary submissions before the trial court when granted this chance in response to the application filed under Section 452 of the Criminal Procedure Code, 1973. Furthermore, Page 10 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined even during the appeal stage under Section 454, the petitioner failed to do so.
6.2 Furthermore, both the courts have concurrent found that the petitioner has failed to establish his ownership by producing cogent and convincing documents. Therefore, considering the nature of the Muddamal, the Court has no option but to direct the gold to be in the custody of the court by confiscating the goods in question in favour of the Government. However, it is always open for the petitioner to establish his ownership in appropriate civil proceedings.
6.3 It is appropriate to rely on the judgment of the Hon'ble Apex Court in the case of Bharat Sanchar Nigam Ltd. versus Suryanarayanan and Another reported in (2020) 12 SCC 637, more specifically, paragraphs 13 to 23 are relevant, which are as follows:-
"13. Section 452 provides for the disposal of the property at the conclusion of the trial.
Sub-sections(1) and (2) of Section 452 provide as follows:-Page 11 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023
NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined "452. Order for disposal of property at conclusion of trial.
(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub- section (1) is modified or set aside on appeal or revision."
In terms of sub-section (1) of Section 452, when an inquiry or trial before a criminal court has been concluded, the court is empowered to pass an appropriate order for its disposal by destruction, confiscation or delivery to any person claiming to be entitled to the possession thereof or otherwise. Entitlement postulates a right. The function which the Court exercises under Section 452 is of a judicial nature. In making that order, the court must undoubtedly have due regard to the entitlement claimed by the person who seeks the possession of the property.
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14. We are unable to subscribe to the submission which has been urged on behalf of the first respondent that when it makes an order under Section 452, the court is merely required to determine the source from which the property was seized. Indeed, if this construction were to be placed, it would mean that the right of a person who claims title to the property would be subordinate to the claim of a person from whose possession the property was seized. A claim of title to the goods which have been seized is a relevant consideration while passing an order under Section 452. Where there are conflicting claims of entitlement to the property, the Magistrate may deal with them or, where it is found that the rival claims need to be resolved after an evidentiary trial, relegate the conflicting claimants to prove their rights and entitlements before a competent court.
15. Indeed this is the basis of the decision of this Court in Madhavan (supra). In that case, the accused was charged for an offence under Section 302 IPC for shooting a person dead with a licensed gun. He was acquitted of the charge of having committed the offence on the ground that he had exercised his right of self-defence. Yet the trial court had confiscated the weapon to the government. This Court set aside the judgment of the High Court which had upheld the view taken by the Sessions Court. The principle which has been laid down by this Court is as follows:-
Page 13 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined "The words "may make such order as it thinks fit" in the section, vest the court with a discretion to dispose of the property in any of the three modes specified in the section. But the exercise of such discretion is inherently judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with the sound principles founded on reason and justice, keeping in view the class and nature of the property and the material before it. One of such well recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the court should normally restore the property of class (a) or (b) to the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made, when there is no dispute or doubt - as in the instant case - that the property in question was seized from the custody of such accused and belonged to him."
16. The above observations indicate that the authority which is entrusted to the Court under Section 452 of the CrPC (equivalent to Section 517 of the Code of 1898) is judicial in nature. As a judicial power, it has to be exercised for valid reasons keeping in view the class and nature of the property and the material before the Court. Normally the Court would, following the discharge or acquittal of the accused, restore the property to the person Page 14 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined from whose custody it was taken. A departure from this rule of practice is not lightly made when there is no dispute or doubt that the property which was seized from the custody of the accused belongs to him. These observations in the decision of this Court in Madhavan (supra) clearly indicate that ordinarily the person from whom the property was seized would be entitled to an order under Section 452, when there is no dispute or doubt that the property belongs to him. It is only when the property belongs to the person from whom it was seized that such an order can be passed.
17. Where a claim is made before the court that the property does not belong to the person from whom it was seized, Section 452 does not mandate that its custody should be handed over to the person from whose possession it was seized, overriding the claim of genuine title which is asserted on behalf of a third party. It must be noted that in Madhavan case (supra), there was no dispute that the weapon of offence belonged to the accused from whom it had been seized.
18. The decision in Pushkar Singh (supra) involved prosecution for offences under Sections 449 and 372 of the Gwalior Penal Code. The Magistrate held that no case was established against the accused and the money which was recovered from his house belonged to him. There was a specific finding that the money did not belong to the Page 15 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined complainant. The Sessions Judge dismissed the revision by the complainant. The High Court was moved for the return of the amount to the complainant and not to the accused, which application was allowed. This Court held that in view of the clear finding of fact by the Magistrate to the effect that no offence was committed in respect of the sum of money and that it did not belong to the complainant, followed by the acquittal of the accused, the amount recovered had to be delivered to the accused. Hence, the view of this Court was that following the acquittal of the accused and since there was a specific finding that the money belonged to him, an order for return of the money to the complainant could not be countenanced .
19. Learned counsel appearing on behalf of the first respondent, however, submits that in the present case, the appellant did not move an application under Section 452 and hence an order cannot be passed in terms of that provision for the restoration of legal possession to the appellant. The issue before the Court, however, is somewhat different. The basic issue is whether the first respondent who moved an application for the release of the seized property to him under Section 452 has established a claim of entitlement.
20. Prima facie, at this stage, we are unable to find any reasonable basis in the record for handing over custody of Page 16 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined the seized goods to the respondent. During the course of the hearing, we requested learned counsel appearing on behalf of the first respondent to indicate at least, prima facie, some basis for the claim of title in the acquisition of the goods or the payment which has been made for acquiring them. As we note from the judgment of the trial court, the claimant had produced certain invoices between 8 February and 20 February 1992, recovery having been effected on 21 February 1992. The Magistrate noted that no cash receipts were produced by the first respondent and though vouchers were produced by CW-10, they did not prove that they were for the purchase of the seized goods. Nothing at all has been shown in response to our query.
21. In our view, the claim which has been made by the first respondent to the title to the goods is seriously in dispute. Hence it was but appropriate and proper that such a claim be agitated before the competent civil forum. The view of the Magistrate was correct. In the absence of such an adjudication, the custody of the goods, which have been seized, should continue to be with the appellant. In passing this order, we are also guided by the fact that as noticed in the order of the Magistrate, the appellant had indicated through its evidence that the goods were stolen from its godown and were of a nature which were not capable of being acquired from the open market.
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22. The High Court was in error in directing return of the goods to the first respondent. The first respondent must, in our view, be relegated to the civil court for establishing its claim and title to the goods as observed in the order passed by the Magistrate, which was affirmed by the Sessions court.
23. The goods were made over to the appellant as far back as on 21 February 1992. Nearly 26 years have elapsed since then. We see no reason or justification to require the appellant to hold these goods in its custody indefinitely thereby occupying valuable space and leaving productive resources unutilised. The appellant shall preserve a sample of the goods in question, should it be required for adjudication before the competent civil court. Subject to this, we grant permission to the appellant to sell the goods by auction and to maintain an account of the money which has been realised from the sale. The amount which is realised by the appellant, shall abide by such directions as may be passed by the competent civil court in the suit which may be instituted by the first respondent."
6.4 Based on the information presented above, I am of the opinion that both courts below have not committed any errors in their findings of the facts, and their judgments are in alignment with the provisions of Page 18 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined Sections 452 and 454 of the Cr.P.C. It cannot be asserted that the learned trial court, while deciding the Section 452 application, failed to comply with the direction issued by the appellate court in the previous round of litigation in Criminal Appeal No.93 of 2018.
Upon a bare examination of the judgment, it becomes evident that following a comprehensive inquiry and considering the Section 452 application of the Cr.P.C., the trial court granted the petitioner ample opportunity to produce necessary documents such as bills.
Subsequently, the trial court made its decision in accordance with the law. The appellate court also considered the appeal appropriately. Therefore, no errors have been made by the courts that would necessitate any intervention by exercising of my powers under Article 226 of the Constitution of India and Section 482 of the Criminal Procedure Code, 1973. Accordingly, the present petition is required to be dismissed and there is no illegality and perversity found in the findings of both the courts below and there is no abuse of process of law.
7. Resultantly, the present petition is dismissed with Page 19 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023 NEUTRAL CITATION R/SCR.A/10997/2021 JUDGMENT DATED: 12/10/2023 undefined no order as to costs. Notice stands discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 20 of 20 Downloaded on : Wed Oct 18 20:33:40 IST 2023