The State Of Maharashtra vs Shree Ganapati Dev Ani Pujechi ...
2021 Latest Caselaw 5788 Bom

            This Order is modified/corrected by Speaking to Minutes Order dated 03/05/2021

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL INTERIM APPLICATION NO.825 OF 2021
                               (For Return of Property)
                                         IN
                         CRIMINAL APPEAL NO.217 OF 2021

       The State of Maharashtra
       (through Sub Divisional Officer Shrivardhan)                               ...Applicant
                Versus
       Shree Ganapati Dev Ani Pujechi Nemnuk Trust
       Registration No.A604.
       Registered under the Maharashtra Public Trust Act
       and Rules 1950.
       Through Trustee - Balkrishna Ganesh Bapat
       Age : 54 years, Occu.: Agriculture,
       R/o.: At Post. Diveagar,
       Tal. Shriwardhan, Dist. Raigad                                             ...Respondent

       2 to 14 (deleted)

       Mr. S. V. Gavand, A.P.P for the Applicant - State.

       Mr. R. S. Apte, Senior Counsel a/w Mr. Ketan A. Dhavle,                                    for the
       Respondent.

       Mr. Amit Tanaji Shedage, Sub-Divisional Officer, Shrivardhan, is present.

                                          CORAM : REVATI MOHITE DERE, J.

                                         DATE :         31st MARCH, 2021

       ORDER. :

1. At the outset, learned APP appearing on behalf of the applicant

- State seeks leave to amend to delete the names of Respondent Nos.2 to

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14 from the array of Respondents in view of the order dated 3 rd March

2021, passed by this Court (Coram: Sandeep K. Shinde, J.) in Criminal

Application No.2038 of 2018 in Criminal Appeal (Stamp) No.1482 of 2018.

Leave granted. Amendment to be carried out forthwith.

2. Heard learned counsel for the parties.

3. Rule. Rule is made returnable forthwith with the consent of

the parties and is taken up for final disposal. Mr. Apte, waives notice on

behalf of the sole respondent.

4. Mr. Gavand, learned APP submits that pending the hearing and

final disposal of the aforesaid appeal filed by the respondent - Shree

Ganapati Dev Ani Pujechi Nemnuk Trust, the applicant - State be permitted

to make a gold mask of Lord Ganesha from the gold seized in the said case

i.e. Special MCOC Case No.01 of 2012, and returned to the applicant -

State, and the applicant - State be permitted to further install the same in

the Ganesh Temple, at Diveagar.

5. Learned senior counsel for the respondent - Shree Ganapati

Dev Ani Pujechi Nemnuk Trust (for short 'Trust') has no objection, if the

application is allowed.

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6. Perused the papers. On 17th November 1997, one Draupadi

Dharma Patil whilst doing agricultural work in her landed property bearing

Gut No.673 found one box containing gold mask of Lord Ganesha and

some jewellery/gold. The said mask of Lord Ganesha was weighing 1305

grams and other gold items were weighing 660.5 grams (Total gold 1965.5

grams). Pursuant to the said discovery, Draupadi Patil handed over the

said gold mask and other gold articles to the respondent - Trust. As the

said gold articles, given by Draupadi Patil to the trustees, and accepted by

the trustees, was in breach of the provisions of the Indian Treasure Trove

Act. On 9th December 1997, Mr. Ganesh Bapat, Trustee of the respondent

- Trust executed a bond of Rs.10 lakhs alongwith other guarantors before

the learned Judicial Magistrate First Class, Shrivardhan.

7. Thereafter, proceedings were conducted under the Indian

Treasure Trove Act, 1878 before the learned Collector, Raigad. The

learned Collector vide order dated 25th August 1998 declared the said

property found by Draupadi Patil and handed over by Draupadi Patil to the

respondent - Trust, as 'ownerless'. Admittedly, the said order has not been

challenged till date and as such has attained finality. The learned Collector

subject to certain terms and conditions gave the said property to the

respondent - Trust with specific stipulation stating therein that at all times

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the Government shall be the owner of the said property i.e. gold mask of

Lord Ganesha and other gold/stone items. Thereafter, the gold mask was

installed in the Ganpati Temple at village Diveagar. It appears that for the

security of the said mask proper arrangements were made by the respondent

- Trust, by installing CCTV cameras and by appointing security guards in

the temple.

8. On 23rd March 2012 in the evening, Ashok Sitaram Bhagat,

trustee of respondent-Trust closed the temple. At that time, two security

guards viz. Mahadev Ghadashi and Anant Bhagat were on night duty. On

24th March 2012, dacoity was committed in the said Lord Ganesha Temple

at night and two security guards were murdered and the gold mask and

other gold ornaments were stolen by the accused. The said incident came to

light on 24th March 2012 in the morning and was immediately reported to

the police. Accordingly, a case was registered with the Dighi Sagari Police

Station, vide C.R. No.04 of 2012, alleging offences punishable under

Section 394 and 397 of the Indian Penal Code. It appears that subsequently

Section 396 of the Indian Penal Code was also added. After investigation,

charge-sheet was filed against 12 accused, alleging offences punishable

under Sections 396, 397 r/w 120B, 201, 379, 412 r/w 34 of the Indian

Penal Code and also the provisions of the Maharashtra Control of

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Organized Crime Act. It is pertinent to note that during the course of

investigation, gold ingots were recovered at the instance of 4 accused i.e.

gold ingots and balls weighing 1246.430 grams were recovered, at the

instance of accused No.2 - Kailas Bhosale under Section 27 of the

Evidence Act; gold ingots weighing 78 grams and gold weighing 12 grams

(total 90 grams) were recovered at the instance of accused No.4 - Anand

Raimokar under Section 27 of the Evidence Act; gold ingot weighing 10

grams was recovered at the instance of accused No.5 - Ajit Dahale; and,

curve shaped gold weighing 15 grams and precious stones weighing 37.50

grams were recovered at the instance of accused No. 9 - Khairabhai

Bhosale also under Section 27 of the Evidence Act. The total gold in the

temple (including the mask) was 1466 grams and the total gold recovered

from the accused was 1361.43 grams and precious stones, 37.50 grams.

Admittedly, during trial none of the accused claimed the ownership of the

gold ingots and gold as well as precious stones recovered in the said case.

9. The trial Court after considering the evidence on record,

convicted 10 of the 12 accused and sentenced them to different

punishments vide judgment and order dated 16th October 2017. With

respect to the gold which was seized, the learned Judge in clause - 24 of

the operative order, has observed thus:-

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"24. The muddemal Article No.19 i.e. gold of 1 Kg. 246 gram 430 miligram, Muddemal Article No.32 i.e. 15 grams of gold sheet and stones fixed in it, Muddemal Article No.33 i.e. 37.500 gram gold and stones, Muddemal Article No. 34 i.e. 10 grams gold, muddemal article No.37 i.e. 78 grams gold ingot, muddemal article No.38 i.e. 12 gram gold ingot recovered from accused Nos.2, 4, 5 and 9 is confiscated and be sent to the Government Mint after appeal period is over."

10. It is pertinent to note that during the course of trial, two

applications were filed before the learned Special Judge, for return of the

property i.e. one application by the trustee - Balkrishna Ganesh Bapat and

another application by the trustee - Vijay Sudam Todankar. The learned

trial Judge rejected both the said applications on the ground that the said

gold mask of Lord Ganesha was owned by the Government as per the

provisions of Indian Treasure Trove Act, and the custody of the said mask

was given to the respondent - Trust, subject to certain terms and

conditions, so that the devotees could worship the gold mask of Lord

Ganesha. The learned Judge was of the view that since the accused had

melted the said mask and prepared ingots, the said gold mask was not in

existence and as such the question of returning the same to the respondent -

Trust did not arise and as such rejected both the applications filed by the

trustees, seeking return of the property.

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11. Being aggrieved by the said order, the respondent - Trust

filed the aforesaid appeal being Criminal Appeal No. 217 of 2021, in

particular, for the reasons set out by the learned Judge in paras 577 to 583,

thereby declining to return the property to the respondent - Trust. The said

appeal filed by the respondent - Trust has been admitted by a separate

order passed today.

12. The applicant - State of Maharashtra has filed the aforesaid

application seeking return of the property described in 'Annexure - A',

which is on page 406 of the application and has prayed that the applicant -

State be permitted to make gold mask of Lord Ganesha by using the said

property and for installing the same in the Ganesh Temple, at Diveagar.

13. According to the learned APP, the Collector, Raigad in 1998

had given the gold mask to the respondent - Trust under the provisions of

Indian Treasure Trove Act, 1878 on executing a bond of Rs. 7 lakhs. The

learned APP further submitted that the dacoity of the gold mask i.e. of the

idol of Lord Ganesha had touched the emotions and feelings of the people

residing in the Konkan belt. It is submitted that though the gold mask is not

recovered in the same form, the gold of the said mask has been recovered in

the form of ingots and that there is public sentiment that similar gold mask

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of Lord Ganesha be again prepared with the said gold ingots, which were

recovered at the instance of the accused. He submitted that for almost 8

years, after the dacoity which was committed in March 2012, the people

are anxiously waiting to see that the gold mask of Lord Ganesha, is

reinstalled in the said temple. Learned APP submitted that the applicant

intends to make an identical gold mask of Lord Ganesha which was stolen

by making use of the same gold recovered from the accused, as stated

aforesaid. He submitted that after the gold mask is prepared with the same

recovered gold and precious stones, the same will be installed in the temple,

after taking a bond from the respondent - Trust. He further submitted that

the concerned officer i.e. the Sub-Divisional Officer, Shrivardhan, will

supervise the making of the gold mask of Lord Ganesha and that the said

officer will ensure that the purity of the gold is maintained as well as the

complete usage of the gold and stones so seized. Statement accepted.

14. As noted above, none of the accused have claimed the gold

which was seized at their instance. Presently, the gold which was seized

from the accused, is lying with the State Government.

15. Learned Senior Counsel for the respondent - Trust states that

they will abide by any of terms and conditions that may be imposed by the

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State Government before the mask of Lord Ganesha is installed in the

temple.

16. Considering the aforesaid, there is no impediment in allowing

the application. Accordingly, the following order is passed:-

ORDER

i) The State Government is accordingly permitted to make a gold

mask of Lord Ganesha with the entire gold recovered and seized at the

instance of the accused, in the aforesaid case;

ii) The precious stones which are also seized and recovered will

also be used in making of the said mask;

iii) The purity of the gold to be maintained. The Sub-Divisional

Officer, Shrivardhan, to supervise the making of the gold mask of Lord

Ganesha and ensure that the purity of the gold is maintained;

iv) Valuation of the mask with respect to weight and purity to be

taken from a Government valuer, after the same is prepared;

v) After the preparation of the gold mask of Lord Ganesha, the

State Government is permitted to hand-over the said mask to the respondent

- Trust, who will install the same in the Ganesh Temple at Diveagar, on

such terms and conditions, as the applicant - State, deems so fit and proper;

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vi) Before the said mask of Lord Ganesha is made, the Sub-

Divisional Officer, Shrivardhan, to take photographs of the gold ingots/gold

items and precious stones as mentioned in 'Annexure - A', under a

pachanama and file the same in the aforesaid appeal;

vii) The Sub-Divisional Officer, Shrivardhan, shall also give an

undertaking that in the event, if an occasion so arises and if this Hon'ble

Court so directs, the applicant - State will produce the said gold mask

before this Court;

viii) The Sub-Divisional Officer, Shrivardhan, to also execute a

bond that he will comply with the aforesaid directions, before the trial

Court, before the gold is taken from the State Government.

17. Accordingly the application is allowed. Rule is made absolute

in above terms.

18. All concerned to act on the authenticated copy of this order.

REVATI MOHITE DERE, J.