Ram Ashish Yadav vs State Of U.P. And Another
2021 Latest Caselaw 11307 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 77
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5552 of 2021
 

 
Petitioner :- Ram Ashish Yadav
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- R.K. Shahi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Gautam Chowdhary,J.

Heard learned counsel for the petitioner and Shri Rakesh Srivastava and Shri Madnesh Prasad Singh, learned AGAs for the State.

This petition has been filed praying for the following reliefs:

"(i) Issue a order or direction to set-aside the impugned order dated 03.03.2021 passed by the learned Court of Judicial Magistrate, Court No.11, Deoria, passed in Misc. No. 58/21 State vs. Krishna Kumar and others AND the order dated 13-08-2021 passed by the learned Sessions Judge, Deoria in Criminal Revision No. 45/2021 C.N.R. No.- UPDEO1001041 2021 Ram Ashish Yadav vs. State of U.P. (Annexure No. 1 and 2 to this writ petition).

(ii) Issue a order or direction commanding and directing the learned Court of Judicial Magistrate, Court No. 11, Deoria, to act in accordance with law and release 4,00,300/- Rs., related with Case Crime No. 32/20 registered under section 60, 63, 72 of the Excise Act, P.S. Bankata, District Deoria, in favour of the petitioner forthwith."

The brief facts of the case are that on the basis of the FIR lodged by the opposite party No.2 at Police Station Bankata, District Deoria, F.I.R. No.0032 of 2020 was registered against the petitioner under Section 60, 63, 72 of the Excise Act. During the alleged raid of the house of the petitioner the police recovered Rs. 4,00,300/- which was said to have been obtained by the petitioner after the sale of liquor etc.

Learned counsel for the petitioner submits that the allegations levelled against the petitioner regarding possession of liquor etc. is totally false and no such item has been recovered from the possession of the petitioner or from his house as has been alleged. Further submission is that the police has illegally entered in the house of the petitioner and taken away cash of Rs.4,00,300/- kept for expanses to be incurred in marriage of the petitioner's daughter. It is also contended that arbitrary and illegal act of seizure of personal rupees of the petitioner by the police is high handed, callous & capricious in nature and hence was challenged before both the learned courts below were under legal obligation to release the seized amount in favour of the petitioner but illegally the same has been negatived hence the impugned orders dated 03.03.2021 and 13.08.2021 are not sustainable in the eye of law and are liable to be quashed.

Learned counsel for the petitioner submitted that the prayer for releasing the currency notes recovered from the possession of the accused could not be withheld by the court till conclusion of the trial.

Further, learned counsel for the petitioner has placed reliance upon the judgment of Apex Court in case of Manjit Singh Vs. State LAWS(DLH)-2014-9-311 in which it has been held as under :-

"53. In Nidhi Kaushik v. Union of India, LPA No.736/2013, decided on 26th May, 2014, the Division Bench of this Court, in which I was a member, examined the aforesaid judgments and summarized the law as under:

"Consequences of refusing to follow well settled law If an authority does not follow the well settled law, it shall create confusion in the administration of justice and undermine the law laid down by the constitutional Courts. The consequence of an authority not following the well settled law amounts to contempt of Court as held by the Supreme Court in East India Commercial Co. Ltd. (supra), Makhan Lal (supra), Baradakanta Mishra (supra), M.P. Dwivedi (supra), T.N. Godavarman Thirumulpad (supra), Maninderjit Singh Bitta (supra), Priya Gupta (supra) and various High Courts in Hasmukhlal C. Shah (supra), Secretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya (supra), C.T. Subbarayappa (supra), Parmal Singh (supra), Ex-CT Nardev (supra) and Head of Department, Air Force Station Amla."

Summary of principles of law The following principles emerge from the above judgments:

54. The properties seized by the police during investigation or trial have to be produced before the competent Court within one week of the seizure and the Court has to expeditiously pass an order for its custody in terms of the directions of the Supreme Court in Basavva Kom Dyamangouda Patil v. State of Mysore (supra), Sunderbhai Ambalal Desai v. State of Gujarat (supra 1), Sunderbhai Ambalal Desai v. State of Gujarat (supra 2) and General Insurance Council v. State of A.P. (supra).

55. The Court has to ensure that the property seized by the police should not be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary and in any case, for not more than one month.

56. If the property is subject to speedy and natural decay or if it is otherwise expedient to do so, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

57. The expeditious and judicious disposal of a case property would ensure that the owner of the article would not suffer because of its remaining unused or by its misappropriation; Court or the police would not be required to keep the article in safe custody; and onerous cost to the public exchequer towards the cost of storage and custody of the property would be saved.

Time limit for release

58. Whenever a property is seized by the police, it is the duty of the seizing officer/SHO to produce it before the concerned Magistrate within one week of the seizure and the Court, after due notice to the concerned parties, is required to pass an appropriate order for its disposal within a period of one month. Valuable articles

59. The valuable articles seized by the police may be released to the person, who, in the opinion of the Court, is lawfully entitled to claim such as the complainant at whose house theft, robbery or dacoity has taken place, after preparing detailed panchnama of such articles; taking photographs of such articles and a security bond.

60. The photographs of such articles should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Wherever necessary, the Court may get the jewellery articles valued from a government approved valuer.

61. The actual production of the valuable articles during the trial should not be insisted upon and the photographs along with the panchnama should suffice for the purposes of evidence.

62. Where such articles are not handed over either to the complainant or to the person from whom such articles were seized or to its claimant, then the Court may direct that such articles be kept in a locker.

63. If required, the Court may direct that such articles be handed back to the Investigating Officer for further investigation and identification. However, in no circumstance, the Investigating Officer should keep such articles in custody for a longer period for the purposes of investigation and identification.

64. If articles are required to be kept in police custody, the SHO shall, after preparing proper panchnama, keep such articles in a locker.

Currency notes

65. The currency notes seized by the police may be released to the person who, in the opinion of the Court, is lawfully entitled to claim after preparing detailed panchnama of the currency notes with their numbers or denomination; taking photographs of the currency notes; and taking a security bond.

66. The photographs of such currency notes should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over and memo of the proceedings be prepared which must be signed by the parties and witnesses.

67. The production of the currency notes during the course of the trial should not be insisted upon and the releasee should be permitted to use the currency."

He further submitted that since there is no dispute about the fact that the currency notes belong to the petitioner, he is entitled for custody of the same in view of the provisions of Section 457 Cr.P.C.

He lastly submitted that the reason given by the learned Magistrate in the impugned order for rejecting the petitioner's prayer for releasing the currency notes of Rs.4,00,300/- in his favour is contrary to the law laid down by the Apex Court in the case of Sundar Bhai Ambalal Desai Vs State of Gujrat 2003(1), J.I.C.615, SC and hence the impugned order can not be sustained and is liable to be quashed.

Per contra learned AGAs made their submissions in support of the impugned order.

I have heard learned counsel for the parties present, perused the impugned order as well as other materials brought on record and the case law cited on the subject by the learned counsel for the petitioner. In view of the law laid down by the Apex Court in the case of Sundar Bhai Ambalal Desai (Supra) as well as this Court in the case of Manjit Singh (supra), the currency notes and ornaments etc. which are case property can not be withheld by the court till disposal of the trial only on the ground that such properties are case properties. The valuable articles like ornaments domestic articles and currency notes etc. which case property can be returned to the person entitled to the possession thereof. Section 457 of the Code lays down the provision for releasing the property seized by the police which is not produced before the Court during inquiry or trial. The provision under Section 457 of the Code is being extracted below:

"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 can not 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"

As per requirement of the provisions under Section 457 of the Code the property which has been seized by the police under the provision of the Code and has not been produced before the 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. In this case, what was required of the learned Magistrate was that he should have ascertained as to who was entitled to the custody of currency notes. After ascertaining the person entitled to the custody of currency notes he should have passed order for custody of currency notes in view of the provisions under Section 457 of the Code. The learned Magistrate rejected the application only on the ground that the currency notes were case property which were required to be produced during the trial but the custody of currency notes could not have been denied to the petitioner by the learned Magistrate, rather the property should have been disposed of by him in accordance with the provision under Section 457 of the Code . Thus the impugned order is bad in the eyes of law and is liable to be set aside and the matter deserves to be remanded back to the learned Magistrate for his fresh decision in the matter in accordance with the provisions of Section 457 of the Code.

The impugned order dated 03.03.2021 passed by the learned Court of Judicial Magistrate, Court No.11, Deoria, passed in Misc. No. 58/21 State vs. Krishna Kumar and others AND the order dated 13-08-2021 passed by the learned Sessions Judge, Deoria in Criminal Revision No. 45/2021 C.N.R. No.- UPDEO1001041 2021 Ram Ashish Yadav vs. State of U.P. are hereby quashed and the matter is remitted back to the learned Magistrate with a direction to him to dispose of the application moved by the complainant-petitioner afresh keeping in view of the Provisions of 457 of the Code within a period of three months from the date of production of certified/ computerized copy of this order before him.

Order Date :- 11.11.2021

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