Balraj Sethi vs State Of U.P.
2023 Latest Caselaw 13766 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 49
 
Case :- CRIMINAL REVISION No. - 2004 of 2023
 
Revisionist :- Balraj Sethi
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Arun Kumar Shukla,Arvind Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Arun Kumar Shukla, the learned counsel for revisionist and the learned AGA for State.

Perused the record.

Challenge in this criminal revision is to the order dated 03.03.2023 passed by Special Judge (M.P./M.L.A. Court) II Additional Civil Judge (Senior Division)/ACJM, Saharanpur, in case Crime No. 7 of 2023 State vs. Iqbal alias Bala & Others under Sections 395, 386. 365, 342 and 506 IPC, Police Station Mirzapur, District Saharanpur, whereby the release application filed by revisionist in terms of Section 451 Cr.P.C. has been rejected.

Learned counsel for revisionist submits that applicant Balraj Sethi is the first informant in aforemenioned case Crime No. 7 of 2023. After lodging the FIR certain building material were seized by the police as is evident from the documents occurring at page 612 of the paper book during the pendency of aforementioned case Crime No. Accordingly revisionist filed an application in terms of Section 451 Cr.P.C. seeking release of the goods so seized by the police.

Release application filed by revisionist was opposed by accused who filed their objections to the same.

Ultimately court below by means of impugned order dated 03.03.2023 rejected the release application filed by the revisionist.

Perusal of impugned order, goes to show that the release application filed by revisionist has been rejected by Court below primarily on the ground that revisionist has failed to establish his ownership in respect of the seized goods. On the above premise Court below rejected the release application. Reference was also made to the fact that objection with regard to the ownership of the disputed goods of revisionist have also been raised by the accused.

Learned counsel for revisionist contends that the order impugned in present criminal revisioni is manifestly illegal and arbitrary. Court below has failed to evaluate the objections filed by the accused. No attempt was made by court below to evaluate the material adduced by the parties in respect of their respective claims. It is then contended that the seized goods are of perishable nature which are lying in open. As such their value is getting depreciating day by day. Moreover, the seizure of the seized goods till the pendency of the trial is not necessitated by any critical circumstance of the case. Reference is also made to the judgment of the Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002)10 SCC 283. He has relied upon paragraphs 6, 7, 10, 14, 15, 16 and 17 of the said judgment. For ready reference, the same are re-produced hereinunder:-

"6. In our view, the powers underSection 451Cr.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. 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 observed as under-

"4. The object and scheme of the various provisionsof the Codeappear 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 requirementsof the Codeis that the articles concerned must be produced before the Court or should be in its custody. The objectof the Codeseems 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 underSection 451Cr.P.C. should be exercised promptly and at the earliest.

10. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided underSection 451Cr.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 underSection 451Cr.P.C. to impose any other appropriate condition.

14. 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.

15. 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.

16. 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.

17. Similarly for the Narcotic drugs also, for its identification, procedure underSection 451Cr.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 may not be raised that the article which was seized was not the same."

On the basis of above, the learned counsel for revisionist contends that no attempt has been made by court below to consider the case of the present applicant in the light of the directions contained in aforesaid judgment. On the above premise, he submits that order impugned in present revision cannot be sustained and is therefore liable to be set aside by this Court.

Per contra, the learned AGA has opposed the present criminal revision he submits that Court below has rejected the release revision filed by revisionist primarily on the ground that the ownership of the revisionist over the disputed articles was raised by the accused, who filed their objections, and secondly no such document was filed by the revisionist before Court below on the basis of which the exclusive ownership of the revisionist in respect of the seized articles could be concluded. As such no illegality has been committed by Court below in passing the order impugned. The revision therefore does not involve any question of law which requires interference by this Court. As no jurisdictional error has been committed by Court below in passing the order impugned, present revision is liable to be dismissed.

Having heard the learned counsel for revisionist and the learned AGA for State and upon perusal of record this Court finds that no attempt was made by Court below to weigh the objection raised by accused ragarding the ownership asserted by the revisionist in the light of the material placed before the Court. The Court further finds that Court below has failed to appreciate/refer to the judgment of the Supreme Court in Sundarbhai Ambalal Desai (supra) refer to above. No attempt has been made by Court below to ensure the release of seized goods in the light of the directions contained in the aforesaid judgment particularly when the goods seized are of perishable nature and that there does not exists any such critical circumstance necessitating the continuation of the seized goods till the pendency of the trial. In view of above court below has thus committed a jurisdictional error in passing the order impugned.

In view of the discussion made above, the present criminal revision succeeds and is allowed.

It is accordingly allowed.

The impugned order dated 03.03.2023 passed by Special Judge (M.P./M.L.A. Court) II Additional Civil Judge (Senior Division)/ACJM, Saharanpur is hereby set aside.

Court below shall pass a fresh order in the light of observations made herein above within a period of three weeks from the date of presentation of a certified copy of this order.

Order Date :- 2.5.2023/Ruhi