Aditya Labhashankar Joshi vs State Of Gujarat
2021 Latest Caselaw 10406 Guj

     R/SCR.A/5159/2021                                    ORDER DATED: 03/08/2021



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO. 5159 of 2021

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                         ADITYA LABHASHANKAR JOSHI
                                   Versus
                              STATE OF GUJARAT
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Appearance:
MS BHAKTI M JOSHI(3820) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 03/08/2021
                                 ORAL ORDER

1. Rule. Learned APP waives service of notice of rule on behalf of respondent State. With the consent of learned advocates on both the sides, the matter is heard today finally.

2. This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking relief to release the muddamal cash of Rs.12,23,700/-, which was seized pursuant to the raid carried out at the house of the petitioner and also prays to quash and set aside the order dated 20.05.2021 passed by 2nd Additional Sessions Judge, Talaja in Criminal Revision Application No.7 of 2021, confirming the order dated 20.03.2021 passed by Additional Judicial Magistrate, First Class, Talaja in Muddamal Application, rejecting the application of the petitioner for interim custody of the said cash.

R/SCR.A/5159/2021 ORDER DATED: 03/08/2021

3. Ms. Bhakti M.Joshi, learned advocate for the petitioner submitted that the a raid was carried out at the house of the petitioner and muddamal cash worth Rs.12,23,700/- was seized. The name of the applicant has not been mentioned in the prohibition offence being FIR No.11198053200825 of 2020, registered with Talaja Police Station under Sections 65(a), 65(e), 116B, 98(2) and 81 of the Prohibition Act. Ms. Joshi stated the the co- accused had named the petitioner and therefore on search of the house of the petitioner by the official of Talaja Police Station, the cash, which was lying in the house of the petitioner was seized by the police. It is stated that no muddamal of contraband liquor has been recovered from the house of the petitioner. The officials of the Talaja Police Station had illegally seized the muddamal cash and if the said muddamal cash will not be returned back to the petitioner, he has to suffer a great hardship.

3.1 Ms. Joshi stated that the charge-sheet has already been filed, wherein it is shown that the currency notes were seized from the house of the petitioner. She submits that the petitioner is not required to show any income tax return and the ownership of the currency notes is not disputed, since no one has claimed the money and the same was found from the house of the petitioner. The denomination of the currency notes and the PAN Card have been noted in the panchnama.

R/SCR.A/5159/2021 ORDER DATED: 03/08/2021

3.2 Ms. Joshi, learned advocate, further submitted that, the petitioner is engaged with selling of milk and doing labour job. She submits that the amount was seized at the time of search of the house of the petitioner and not at the time of alleged offence. It was, accordingly, urged that this Court may direct release of the muddamal cash in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India.

3.3 Ms. Joshi stated that being the real owner of the currency notes, petitioner approached Additional Judicial Magistrate, First Class, Talaja be preferring Muddamal Application, which came to be rejecting and thereafter the petitioner has approached 2 nd Additional Sessions Judge, which also came to be rejected vide order dated 20.05.2021.

4. The attention of the Court was invited to the judgment of the Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638, wherein the Apex Court in regard to the valuable articles and currency notes, held that no useful purpose would be served to keep such articles in police custody for years till the trial is over and in such cases, Magistrate should pass appropriate orders as contemplated under Section 451 of the Cr.P.C., at the earliest.

5. Ms. Monali Bhatt, learned APP for the respondent State submits that, the petitioner has not produced any authentic documents regarding the money

R/SCR.A/5159/2021 ORDER DATED: 03/08/2021

recovered from the house of the applicant. It was, however, urged that the powers of this Court under Article 226 of the Constitution to order release of the muddamal cash can be exercised at any time whenever the Court deems it appropriate, still however it was urged that the present petition may not be entertained.

6. Heard learned advocates on both the sides and perused the documents on record. Considering the facts of the case, it would be beneficial to refer to the decision rendered by the Apex Court in Sunderbhai Ambalal Desai's case (supra), the relevant portion of which reads thus;

"5. Section 451clearly 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 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.

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

R/SCR.A/5159/2021 ORDER DATED: 03/08/2021

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.

8. The question of proper custody of the seized article is raised in number of matters. In Smt. Baswa 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 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

R/SCR.A/5159/2021 ORDER DATED: 03/08/2021

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."

9. 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.

10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.

6.1 The Apex Court in case of Sunderbhai Ambalal Desai (supra) has expressed its view, directing the procedure for handing over currency notes, which is as under:

Valuable Articles and Currency Notes

11. 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.

12. For this purposes, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or

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dacoity has taken place, then seized articles be handed over to the complainant after:- (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."

7. The power under Section 451 of Cr.P.C. should be exercised expeditiously and judiciously, which clearly empowers the Court to order for proper custody of the articles or property pending conclusion of the trial, as owner of the article would not suffer because of its remaining unused or its misappropriation. The Court or the police would not be required to keep the article in safe custody and if the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial.

8. Considering the factual aspects of the case and the principle rendered in Sunderbhai Ambalal Desai's case (supra), and the fact that the panchnama reflects that the currency notes have been seized and the number and denomination of the currency notes have been noted in the panchnama and no one has come forward to claim the said money, this Court is of the considered opinion that the custody of the cash, if granted in favour of the petitioner, no prejudice is likely to be caused to the prosecution.

R/SCR.A/5159/2021 ORDER DATED: 03/08/2021

9. In the result, the petition is allowed. The order dated 20.05.2021 passed by 2nd Additional Sessions Judge, Talaja in Criminal Revision Application No.7 of 2021, confirming the order dated 20.03.2021 passed by Additional Judicial Magistrate, First Class, Talaja in Muddamal Application are quashed and set aside. The authority concerned is directed to release the muddamal Cash of Rs.12,23,700/- of the petitioner.

9.1 Before handing over the possession of the cash to the petitioner, necessary photographs shall be taken and detailed panchnama in that regard, if not already drawn, shall be drawn for the purpose of trial.

10. Rule is made absolute. 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.) Pankaj