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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.671 OF 2016
Jaikisan s/o. Gopikisan Dhoot,
Aged about 59 years,
Occupation : Business,
R/o. House No.5, Madhuban Colony,
Dhamangaon Road, Yavatmal,
Tq. & Distt. Yavatmal : PETITIONER
...VERSUS...
The State of Maharashtra,
Through Police Station Officer,
Police Station Yavatmal City,
Yavatmal, Tq. & Distt. Yavatmal. : RESPONDENT
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Shri A.A. Naik, Advocate for the Petitioner.
Shri H.D. Dubey, Additional Public Prosecutor for the Respondent.
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CORAM : S.B. SHUKRE, J.
th DATE : 7 OCTOBER, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. Heard finally by consent.
3. Learned Magistrate by his order dated 2 nd March, 2016 refused to release the gold ornaments seized at the instance of the accused No.1 but from the custody of the accused No.2 saying that the ::: Uploaded on - 13/10/2016 ::: Downloaded on - 14/10/2016 00:14:11 ::: J-cwp671.16.odt 2/5 applicant is not prima facie entitled for the custody of the seized ornaments. The ground of refusal was that there was no documentary evidence on record showing the ownership of the ornaments to be with the petitioner. The criminal revision being Revision No.22/2016 filed by the petitioner to seek relief from his suffering in this case, was also rejected by the learned Sessions Judge, Yavatmal by his order passed on 13.7.2016. Learned Sessions Judge reiterated the same reason as given by the learned Magistrate in refusing respite to the petitioner.
4. Learned counsel for the petitioner submits that the ornaments have been admittedly identified by the petitioner and his wife at the police station and that was the reason why the Investigating Officer in his reply to the concerned Court of the Magistrate stated that he had no objection in handing over the custody of the ornaments conditionally to the petitioner. He states that this reply of the Investigating Officer was not considered at all by the Courts below and it shows perversity and arbitrariness on their part.
5. Learned A.P.P. submits that an appropriate order in the interest of justice be passed.
6. On going through the record of this case, I find that there is great substance in the argument of learned counsel for the petitioner.
The investigating officer had given his no objection for releasing the custody of the gold ornaments in favour of the petitioner. The impugned ::: Uploaded on - 13/10/2016 ::: Downloaded on - 14/10/2016 00:14:11 ::: J-cwp671.16.odt 3/5 orders do not say even a word about no objection given by the Investigating Officer. The Courts below have only insisted upon the documentary proof of ownership. It is well-known that in most of the cases, the victims of the crime, who are robbed of their valuable articles like gold ornaments, are not in a position to submit to the Court any documentary proof of their ownership. The reason being that the ornaments are handed down from one generation to another and traditionally, the receipts of the bills are not preserved. Therefore, it becomes the duty of the Court to consider all the facts and circumstances of the case to arrive at a prima facie conclusion regarding ownership of the ornaments or in some cases about the person having a better claim over the ornaments. In this case, admittedly, both the accused have not claimed custody of the ornaments. Obviously, they being accused, they would not be claiming custody of the ornaments, lest some adverse inference would be drawn against them. The investigating officer has also given his no objection in the matter. Then, the ornaments have been identified by the petitioner and his wife. In such cases, the conclusion should have been that the petitioner is having a better claim over the ornaments and same having been not been drawn, by ignoring the material facts and circumstances of this case, I find that the impugned orders are illegal and perverse. They cannot be sustained in the eye of law. The petition is, therefore, allowed.
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7. The impugned orders are quashed and set aside.
8. The application filed for release of the custody of the seized gold ornaments (Exh.-3) during the pendency of the trial is allowed.
9. All the seized articles be released into the custody of the petitioner on his executing a supratnama of Rs.2/- lakhs on condition that the petitioner shall not dispose of or transfer or deal with the seized articles in any manner, shall preserve them in their present form and shall produce them before the trial Court, if required so by that Court, till final disposal of the case.
10. Rule is made absolute in these terms.
JUDGE
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