Karnataka High Court

Sri Haneef S/O. Honnur Saheb vs The State Of Karnataka on 18 July, 2023

Bench: Anil B Katti

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                                                            NC: 2023:KHC-D:7432
                                                           CRL.RP No. 100257 of 2023




                                    IN THE HIGH COURT OF KARNATAKA

                                             DHARWAD BENCH

                                  DATED THIS THE 18TH DAY OF JULY, 2023

                                                  BEFORE
                                  THE HON'BLE MR JUSTICE ANIL B KATTI
                         CRIMINAL REVISION PETITION NO. 100257 OF 2023 (397-)
                       BETWEEN:

                       SRI. HANEEF S/O. HONNUR SAHEB
                       AGE. 47 YEARS, OCC. GOLD SMITH,
                       R/O. TILAK NAGAR, GUNTAKAL,
                       TAL. AND DIST. GUNTAKAL,
                       STATE. ANDHRA PRADESH

                                                                        ...PETITIONER

                       (BY SRI. SRINAND A PACHHAPURE, ADVOCATE)

                       AND:

                       THE STATE OF KARNATAKA
                       THROUGH COWL BAZAR POLICE STATION, BALLARI,
                       NOW REP. BY STATE PUBLIC PROSECUTOR,
          Digitally    HIGH COURT OF KARNATAKA, DHARWAD,
          signed by
          ANNAPURNA    BENCH AT DHARWAD-580011.
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL
DANDAGAL  Date:
          2023.07.21                                                   ...RESPONDENT
          12:39:36 -
          0700
                       (BY SRI. PRAVEEN UPPAR, ADVOCATE)

                              THIS CRIMINAL REVISION PETITION IS FILED U/EC. 397 R/W

                       401 OF CR.P.C. SEEKING TO CALL FOR RECORDS AND SET ASIDE

                       THE IMPUGNED JUDGMENT AND ORDER DATED 18.03.2023 PASSED

                       BY THE COURT OF II ADDL. DISTRICT AND SESSIONS JUDGE,

                       BALLARI IN CRL.APPEAL NO. 02/2023 AND JUDGMENT AND ORDER

                       DATED 15.10.2022 PASSED BY THE COURT OF II ADDL. CIVIL JUDGE
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                                          NC: 2023:KHC-D:7432
                                        CRL.RP No. 100257 of 2023




AND JMFC, BALLARI IN C.C.NO. 632/2023 TO AN EXTENT OF

CONFISCATION OF M.O.NO.1 CASH OF RS.96,600/- TO THE STATE

IS CONCERNED, BY ALLOWING THIS CRIMINAL REVISION PETITION.


       THIS    CRIMINAL    REVISION    PETITION,   COMING    ON   FOR

ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:


                              ORDER

Revision petitioner/accused No.1 feeling aggrieved by

judgment of the first appellate Court on the file of II Addl.

District and Sessions Judge, Ballari in Crl.A.No.2/2023, dated

18.3.2023, preferred this revision petition.

2. Parties to the revision petition are referred with

their ranks as assigned in the trial Court for the sake of

convenience.

3. Heard the arguments of both sides.

4. On perusal of records of the case, it would go to

show that revision petitioner/accused No.1 along with

another accused were tried before trial Court on the file of II

Addl. Civil Judge and JMFC, Ballari, in CC.No.632/2013. The

trial Court after appreciation of evidence on record acquitted

accused Nos.1 and 2 and ordered to confiscate M.O.No.1, 3

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to 16. The appellant/accused No.1 file appeal before the first

appellate Court on the file of II Addl. District and Sessions

Judge, Ballari in Crl.A.No.2/2023 challenging the confiscation

of M.O.No.1 to the State. The first appellate Court has

dismissed the appeal and confirmed order of the trial Court

in confiscating M.O.No.1 cash of Rs.96,600/- to the State

Government.

5. The order passed by the trial Court in confiscating

M.O.No.1 cash of Rs.96,600/- to the State Government is

essentially an order passed in terms of Section 452 of Cr.P.C.

It is profitable to refer Section 452 of Cr.P.C. which reads as

follows:

452. Order for disposal of property at conclusion of trial:

(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. (2) An order may be made under sub- section (1) for the delivery of any property to any person

NC: 2023:KHC-D:7432 CRL.RP No. 100257 of 2023

claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub- section (1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term" property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

On plain reading of this proviso, it is evident that when an

inquiry or trial in any Criminal Court is concluded, the Court

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may make such order as it thinks fit for the disposal, by

destruction, confiscation or delivery to any person claiming

to be entitle to possession thereof or otherwise, of any

property or document produced before it or in its custody, or

regarding which any offence appears to have been

committed, or which has been used for the commission of

any offence.

6. In the present case, trial Court in exercise of it's

order under Section 452 of Cr.P.C has ordered for

confiscating M.O.No.1 cash of Rs.96,600/- to the State

Government. It is not in dispute that cash of Rs.96,600/-

M.O.No.1 is recovered from the possession of accused No.1.

The accused No.1 during the course of his 313 of Cr.P.C

statement has submitted his written say claiming seized

amount as belongs to him. There are no any other rival claim

over property seized under M.O.No.1. The trial Court has not

recorded any of it's reasoning for confiscating cash of

Rs.96,600/- to the State Government. The trial Court has to

pass order regarding property at the time of conclusion of

trial as envisaged in terms of Section 452 of Cr.P.C.

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7. Learned counsel for revision petitioner relied on

the Co-ordinate Bench judgment of this Court in K.N.Suresh

V/s. State of Karnataka and another, reported in

2012(2) AIR KAR.R.401, wherein it has been observed

and held that it is needless to state that property seized in

the case requires to be returned to person from whom the

same has been seized and therefore, it is directed that police

shall return property to person from whom the same has

been seized. This decision was also cited before the first

appellate Court. However, the first appellate Court holding

that the said proceeding is arising out of quashing the

proceedings in terms of Section 482 of Cr.P.C and there is no

acquittal of accused after trial of the case. Hence, did not

accept the principles enunciated in this decision.

8. It is profitable to refer the judgment of Hon'ble

Apex Court in NAIZ AHMAD VS STATE OF U.P. AND

ANOTHER reported in 1994 SUPP (3) SCC CASES 356,

wherein it has been observed and held that criminal

proceedings ended in favour of the accused from whom the

truck was seized. Consequently, it was ordered to be

returned to respondent/accused. Hon'ble Apex Court has

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rejected the claim of appellant that he has purchased the

truck in question. Therefore, in view of the principles

enunciated in this judgment of the Hon'ble Apex Court, it is

evident that the property has to be released in favour of

person from whose possession it has been seized when trial

is ended in acquittal.

9. It is also useful to refer another judgment of

Hon'ble Apex Court in N. MADHAVAN VS STATE OF

KERALA reported in AIR 1979 SUPREME COURT, 1829,

wherein it has been observed and held that:

"When after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property, which is produced before it or which is in his custody, to the person from whose custody it was taken. Departure from this rule of practice is not to be lightly made when there is no dispute or doubt when the property was seized from the custody of such accused and belonged to him." "Where the Sessions Judge did not give any reason for directing confiscation of the licensed gun belonging to the accused and there was no material indicating the special

NC: 2023:KHC-D:7432 CRL.RP No. 100257 of 2023

circumstances which would warrant a departure from the general rule."

In view of the principles enunciated in this decision, the

normal rule is that to restore the property from whose

possession it has been seized. The departure from this rule

of practice is only on the basis of special reasons for ordering

the property to be confiscated or returned to any other

person, who is entitled for the same. In the present case,

neither the trial Court nor the first appellate Court has

assigned any valid reasons from departing the normal

practice to return the seized property from whose possession

it has been seized. Therefore, in view of principles

enunciated in both aforementioned judgments of Hon'ble

Apex Court the trial Court was not justified in confiscating