Gujarat High Court
Huda Azadbhai Jigarbhai vs State Of Gujarat on 19 August, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/6943/2021 ORDER DATED: 19/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6943 of 2021
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HUDA AZADBHAI JIGARBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. YASH JOSHI, ADVOCATE FOR SWETA A DAVE(8247) for the
Applicant(s) No. 1
MR. MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/08/2021
ORAL ORDER
1. Mr. Zala, learned advocate submits that he has instruction to appear on behalf of the accused and seeks permission to file his Vakalatnama. Registry to accept his Vakalatnama.
2. Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent-State. With the consent of learned advocates on both the sides, the matter is heard today finally.
3. This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking the relief to release the possession of Muddamal being Cash amount of Rs.40,00,000/-, which was seized by the Police in connection with the offence registered with DCB Police Station, Ahmedabad being C.R. No. 11191011210001 of 2021 under Sections 364, 364A, 392 and 114 of the IPC (hereinafter referred to as "the Act"), on suitable terms and conditions.
4. Learned advocate for the petitioner submitted that the petitioner had lodged a complaint against unknown accused persons under Section 364A and other provisions in which the accused persons kidnapped the child Page 1 of 7 Downloaded on : Sun Jan 16 09:13:02 IST 2022 R/SCR.A/6943/2021 ORDER DATED: 19/08/2021 of the petitioner and asked for Rs.40,00,000/- to release his child. It is submitted that the petitioner arranged the money and gave it to the accused persons. It is submitted that during the investigation, the accused persons were arrested by the Investigating Officer and the cash amount, which was given by the petitioner came to be seized from the accused persons.
4.1 Learned advocate for the petitioner submitted that the Report of Police Inspector, Crime Branch, Ahmedabad City is placed on record. Mr. Joshi, learned advocate states that the cash amount of Rs.40,00,000/-, in addition to three Mobiles worth Rs.15000/- and Rs.100/- towards Specs, was seized in Muddamal and according to the Investigating Officer, it was extortion money and the Investigating Officer has expressed that he has no objection if the money is paid back to the petitioner.
5. Learned Additional Public Prosecutor appearing for the respondent- State vehemently contended that there is no proof from where the huge amount of Rs.40,00,000/- was procured. It was, however, urged that the powers of this Court under Article 226 of the Constitution to order release of Cash seized in the Muddamal can be exercised at any time whenever the Court deems it appropriate. It was, accordingly, urged that the present petition may not be entertained.
6. Heard learned advocate for the parties. There is no dispute that the muddamal cash amount of Rs.40,00,000/- belongs to the petitioner which has been seized by the Investigating Officer.
7. In Sunderbhai Ambalal Desai's case (supra), the Apex Court has made the following observations:-
"4. Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which read thus-
"451. Order for custody and disposal of property pending trial in Page 2 of 7 Downloaded on : Sun Jan 16 09:13:02 IST 2022 R/SCR.A/6943/2021 ORDER DATED: 19/08/2021 certain cases.- When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and. if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation-For the purposes of this section, "property"
includes (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.
457. Procedure by police upon seizure of property.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as- (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or Page 3 of 7 Downloaded on : Sun Jan 16 09:13:02 IST 2022 R/SCR.A/6943/2021 ORDER DATED: 19/08/2021 otherwise disposed of, after recording such evidence as it think necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same.
6. It is submitted that despite wide powers proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody.
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."
7.1 The Apex Court has further observed that:
"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 missing, the question was with regard to payment of those articles. In that context, the Court Page 4 of 7 Downloaded on : Sun Jan 16 09:13:02 IST 2022 R/SCR.A/6943/2021 ORDER DATED: 19/08/2021 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."
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.
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 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.
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:-
Page 5 of 7 Downloaded on : Sun Jan 16 09:13:02 IST 2022R/SCR.A/6943/2021 ORDER DATED: 19/08/2021 (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.
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.
8. Considering the factual aspects of the case and the principle rendered in Sunderbhai Ambalal Desai's case (supra), this Court is of the considered opinion that the custody of the muddamal article, if granted in favour of the applicant on certain terms and conditions, would not cause any prejudice to the prosecution.
9. Considering the factual aspects of the case and the principle rendered in Sunderbhai Ambalal Desai's case (supra), this Court is of the considered opinion that the Muddamal cash amount , if granted in favour of the applicant on stringent terms and conditions, no prejudice is likely to be caused to the prosecution. Further, in the decisions referred to herein above, the coordinate Benches have ordered release of the muddamal on suitable conditions.
10. In the result, the petition is allowed. The authority concerned is directed to release the possession of Muddamal being Cash amount of Rs.40,00,000/-, which was seized by the Police in connection with the offence registered with DCB Police Station, Ahmedabad. , on the condition that the petitioner shall furnish, by way of personal bond of the equivalent amount, as mentioned in the seizure memo / panchnama.
10.1 Before handing over the possession of the Cash amount to the petitioner, necessary photographs shall be taken and detailed Page 6 of 7 Downloaded on : Sun Jan 16 09:13:02 IST 2022 R/SCR.A/6943/2021 ORDER DATED: 19/08/2021 panchnama in that regard, if not already drawn, shall be drawn for the purpose of trial. If the Investigating Officer finds it necessary, videography / photography of the muddamal shall also be done and the expenses thereof shall be borne by the applicant.
10.2 Rule is made absolute, accordingly. Direct service is permitted. Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode. Learned advocate for the petitioner is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.
(GITA GOPI,J) SAJ GEORGE Page 7 of 7 Downloaded on : Sun Jan 16 09:13:02 IST 2022