Gujarat High Court

Henil Hemantbhai Kahar vs State Of Gujarat on 21 June, 2021

Bench: Gita Gopi

     R/SCR.A/3409/2019                              ORDER DATED: 21/06/2021




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO. 3409 of 2019

=============================================
                         HENIL HEMANTBHAI KAHAR
                                  Versus
                            STATE OF GUJARAT
=============================================
Appearance:
MR. BHAVIK P SHAH(6391) for the Applicant(s) No. 1
MS MONALI BHATT APP for the Respondent(s) No. 1
=============================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 21/06/2021

                                ORAL ORDER

1. 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.26,660/-, which was seized pursuant to the physical

search of the petitioner and also prays to quash and set

aside the order dated 03.12.2018 passed by 5th Additional

Sessions Judge, Surat in Criminal Revision Application

No.276/2018 confirming the order dated 28.08.2018

passed by 19th Additional Judicial Magistrate, First Class,

Surat in Muddamal Application No.138 of 2018, rejecting

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the application of the petitioner for interim custody of the

said cash.

3. It is stated that the petitioner was arrested by

the Katargaam Police Station in connection with C.R.

No.III-353/2018 under section 65(a)(e), 81, 98, 99, 116(c)

of the Prohibition Act, dated 27.07.2018, and at that time

the police searched and seized Rs.26,660/- from the

possession of the petitioner. After release on bail, the

petitioner approached the Court of Judicial Magistrate,

Surat for releasing of the cash amount of Rs.26,660/-,

which was dismissed by the learned Judicial Magistrate,

observing that the petitioner was unable to produce any

evidence in regard to cash, which was found from his

possession. Being aggrieved by the same, the petitioner

preferred Criminal Revision Application No.276/2018

before the 5th Additional Session Judge, Surat, which

came to be dismissed by confirming the order passed by

the learned Judicial Magistrate.

4. Mr. Bhavik P.Shah, learned advocate for the

petitioner submitted that the seized amount of

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Rs.26,660/- was for the purpose of the tuition fees of her

younger sister and for the rent of his house. In support of

his submission, Mr. Shah, drew attention of the Court to

the additional affidavit on record filed by Amankumar

Vijaybhai, uncle of the present petitioner, who has

affirmed that the said money was given by him in cash for

tuition fees for her niece and for deposit of the rent of the

house, on the promise to return back the same within a

short time. 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.

5. 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.

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6. Learned Additional Public Prosecutor

appearing for the respondent - State vehemently

contended that the muddamal cash of Rs.26,660/- was

seized from the possession of the petitioner pursuant to

physical search, who was caught with liquor by the

police. Learned APP submits that the petitioner has failed

to show the source of cash found from his possession. 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.

7. 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

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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 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.

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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

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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 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.

7.1 The Apex Court in case of Sunderbhai Ambalal

Desai (supra) has expressed its view, directing the

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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 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."

8. 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

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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.