Karnataka High Court
Shri Vishal Ramesh Khatwani vs State Of Karnataka on 4 October, 2024
Author: V Srishananda
Bench: V Srishananda
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.RP No.210/2024
BETWEEN
1. SHRI VISHAL RAMESH KHATWANI
S/O RAMESH MAYARAM KHATWANI
NO.3202, ANRIYA DWELLINGTON APARTMENT,
LOTTEGOLLAHALLI
DOLLARS COLONY
BENGALURU NORTH 560094
...PETITIONER
(BY SRI PRUTHVEEN P. KATTIMANI FOR SRI GIRIDHAR.H,
ADVOCATES)
AND
1 . STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 09.
...RESPONDENT
(BY SRI B.A.BELLIYAPPA, SPP ALONGWITH
SRI VINAY MAHADEVAIAH, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W
401 CR.P.C PRAYING TO EXAMINE THE SAME AND SET
ASIDE THE ORDER DATED 09.11.2023 AND ALLOW THE
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APPLICATION DATED 02.11.2023, CONNECTED WITH THE
ORDER DATED 09.11.2023 MADE BY THE LEARNED VIII
ADDL. CHIEF METROPOLITAN MAGISTRATE IN
CR.NO.256/2023.
THIS PETITION HAVING BEEN RESERVED FOR
ORDER, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
CAV ORDER
(PER: HON'BLE MR JUSTICE V SRISHANANDA)
This revision petition is filed by the applicant under
Section 397 Criminal Procedure Code, 1973 with the
following prayer:
Whereof the Petitioner respectfully prays that this Hon'ble
Court be pleased to:
"i) call for the Records connected with the
Order dated 09.11.2023 made by the learned VIII
Additional Chief Metropolitan Magistrate, in Crime
No. 256/2023 and examine the same and set aside
the Order dated 09.11.2023 and allow the
application dated 03.11.2023.
ii) and grant such other relief as this Hon'ble
Court deems fit under the circumstances of the case
including cost of this proceedings in the interest of
Justices."
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2. Facts in brief which are utmost necessary for
disposal of the revision petition are as under:
Upon the complaint lodged by Smt. Komathi, W/o
Nagesh, a case came to be registered in Cr.No.256/2023
by Sanjay Nagar Police for the offence punishable under
Section 380 and 457 IPC.
3. Gist of the complaint averments would reveal
that complainant is resident of Vijayanagar and she is
working as a manager since four years in a business
concern, situated in new BEL road, in the name and style
of 'Gadgets club' dealing with mobile telephones and its
accessories and such other electronic equipments gadgets.
4. It is her case that on 28.09.2023 at about 8.15
p.m., she closed the shop and went to her home as usual.
Next day i.e., on 29.09.2023, she came back to the shop
at about 9.00 a.m., as usual, when she tried to open the
main door of the shop, she noticed that mobile telephone
sets, laptops, smart watches, analog watches etc., were
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stolen away by some unknown people by breaking open
the lock of the main door.
5. A detailed list was furnished by her as to the
number of items that were stolen away from the shop
worth about Rs.35,00,000/- to Rs.40,00,000/-.
Sl.No. Property type No.of properties
1. I -phones 29
2. One Plus Mobile Phones 03
3. Samsung Company Mobiles 11
4. Google company phones 03
5. Oppo Company Mobiles 02
6. IQOD Company mobiles 02
7. Huawei P-30 Pro Mobile 01
8. Nothing company Mobile 01
9. MAC Company laptops 06
10. Lenovo company laptop 01
11. Redmi Laptop 01
12. I -watchs 15
13. Sada watches 45
14. Samsung handy cam 03
15. Camera 03
16. Another company watches 202
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17. Headphones 05
18. Video play stations 02
19. Bluetooth speaker 01
20. I-Phone hear buds 08
21. Huawei company watches 02
22. Other company speaker and 18
buds
23. I-phone keypad 17
6. Based on the said complaint, police registered
the case in Cr.No.256/2023 and investigated the matter.
During the course of investigation, the Investigation Officer
was able to apprehend the accused persons and from their
custody seized following properties.
Sl.No. Property type No.of properties
1. I -phones 29
2. One Plus Mobile Phones 03
3. Samsung Company Mobiles 11
4. Google company phones 03
5. Oppo Company Mobiles 02
6. IQOD Company mobiles 02
7. Huawei P-30 Pro Mobile 01
8. Nothing company Mobile 01
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9. MAC Company laptops 06
10. Lenovo company laptop 01
11. Redmi Laptop 01
12. I -watchs 15
13. Sada watches 45
14. Sony handy cams 03
15. Camera 03
16. Watches belongs to all 202
companies
17. Headphones 05
18. Video play stations 02
19. Bluetooth speaker 01
20. I-Phone hear buds 08
21. Huawei company watches 02
22. Other company speaker and 18
ear buds
23. I-phone keypads 17
24 Maruthi Eeco Goods vehicle 01
Registration No.KA18-C-2093
25 Honda Activa scooter - KA03- 01
JW-3492
7. Applicant being the owner of the seized
material objects at serial Nos.1 to 23, filed an application
under Section 451 and 457 Cr.P.C., seeking interim
custody of the seized material objects.
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8. Learned Additional Public Prosecutor on behalf
of the State opposed the said application filed by the
applicant.
9. Learned Trial Judge heard the parties and by
impugned order rejected the application filed by Smt.
Komathi, who is none other than the complainant.
10. Being aggrieved by the same, complainant is
before this Court in this revision petition on the following
grounds:
The Order of the learned VIII Additional
Metropolitan Magistrate, Bengaluru have erred by
rejecting the application dated 18.10.2023 and has
resulted in miscarriage of justice in the matter of
appreciation of facts and law.
The orders made by the learned VIII Additional
Metropolitan Magistrate, Bengaluru is without
proper appreciation of documents produced by the
Petitioner in substantiation of his claim for interim
custody in the light of no other claim laid for interim
custody and no objection report submitted by the
investigation officer for releasing of the articles to
the custody of the Petitioner.
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The learned VIII Additional Metropolitan Magistrate,
Bengaluru ought to have appreciated the nature of
business carried on by the Petitioner as reselling of
electronic gadgets that were purchased from the
sellers along with the purchase bills under which
those sellers have purchased it.
The Revision is preferred within the period of
limitation."
11. Sri Pruthveen P. Kattimani, appearing on
behalf of Sri Giridhar H, counsel for the applicant,
reiterating the grounds urged in the petition contended
that the seized material objects are all electronic gadgets
for which, the petitioner has supplied the necessary proof
to prima-facie establish the ownership of the applicant
which has been ignored by the learned Trial Judge in the
impugned order and sought for allowing the revision
petition.
12. In support of his arguments, he placed reliance
on the judgment in the case of Sunderbhai Ambalal
Desai vs. State of Gujarat, reported in AIR 2003
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Supreme Court 638. The relevant portions of the said
judgment are culled out hereunder for ready reference:
"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 the 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
property 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."
13. He further contended that the principles of law
enunciated in the judgment of Sunderbhai Ambalal
Desai supra would be squarely applicable to the case on
hand.
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14. This Court after hearing the counsel for the
applicant noticed that in large number of matters, the
seized material objects are not properly dealt with by the
Investigating Agency and not stored in a proper manner
either for want of necessary paraphernalia or on account of
negligent attitude on the part of the Investigating Agency.
15. Even when they are placed before the Court,
having regard to the lack of necessary infrastructure in
preserving the property, the very value of the seized
property would diminish drastically especially when they
are vehicles, perishable items or electronic gadgets.
16. Therefore, after hearing the learned High Court
Government Pleader, this Court felt the necessity of
seeking assistance from the learned State Public
Prosecutor so as to streamline the disposal of the property
as is contemplated vis-à-vis the scheme of Cr.P.C., in
relevant provisions.
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17. Accordingly, learned State Public Prosecutor -
Sri Belliyappa B.A., was present before the Court,
satisfactorily assisted the Court with his submissions.
18. Apart from Sri Belliyappa B.A., learned State
Public Prosecutor, presence of Sri Mehaboob Sab, Joint
Secretary, Home Department, and Sri Ravi S., Secretary,
Home Department, was secured through Video
Conferencing and enquired them about the rules prevalent
with regard to disposal of properties. Learned Additional
Director General of Police - Sri P.Harishekaran was also
present and arguments of Sri Belliyappa, learned State
Public Prosecutor was heard as to the production and
disposal of the seized properties/material objects in a
criminal proceedings at pre-charge sheet stage and post
charge sheet stage and post disposal of the main case.
19. Sri Belliyappa, placed on record standard
operating procedure which has already been issued by the
State Government for disposal of the seized vehicles in this
regard.
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20. For ready reference and for the sake of clarity
the standard operating procedure issued by State
Government is culled out here under:
"Government of Karnataka
(Police Department)
No.CRM-3/30/2024
Office of the
Director General and
Inspector General of Police,
Nrupathunga Road,
Bengaluru-01
Dated :26.08.2024
STANDARD OPERATING PROCEDURE RELATING TO
DISPOSAL OF PROPERTIES CONCERNED WITH
SECTION 497 OF BHARATIYA NAGARIKA SURAKSHA
SANHITA, 2023
In view of the directions issued by Hon'ble High
Court of Karnataka in Criminal Revision Petition
No.210/2024 this Standard Operating Procedure
relating to disposal of properties concerned with
Section 497 of Bharatiya Nagarika Suraksha Sanhita,
2023 is prepared and issued with the instructions to
comply with the following procedures by all Station
House Officers and Investigation Officers of the
Karnataka.
A. As per Section 105 of the Bharatiya Nagarika
Suraksha Sanhita, 2023 all search and seizure of
places and seizure of properties shall be done under
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the audio video recording. Further it is made
mandatory to submit such recorded audio video
visuals to the Judicial Magistrate or the Executive
Magistrate as the case may be at the earliest within 48
hours along with the copy of respective Mahazar.
Accordingly all the Investigation Officers and Seizing
Officer shall comply with the mandatory provisions laid
down U/s 105 and 185 of the Bharatiya Nagarika
Suraksha Sanhita, 2023 with the strict compliance.
1. That, whenever the Seizing Officer or
Investigation Officer during the course of any search
finds any property which he infers and deems
necessary to seize for the purpose of investigation as
evidence or considering it as crime proceeds or
offending material, then he is empowered U/s 103 or
106 of the BNSS to seize such properties under the
Panchanama/Mahazar in the presence of two
independent witnesses and recording the process of
search and seizure by audio videograph.
2. The Investigation Officer shall specifically
mention the details and descriptions of the seized
property in the Mahazar.
3. If the property seized is golden/silver
ornaments or motor vehicles or other material objects
like mobiles, laptops, etc., then the Seizing Officer
shall mention the brief description of those seized
properties with their unique identities or serial
numbers for their proper identification. Subsequently
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the Seizing Officer shall take the photo copies covering
all the four dimensions of such seized properties and
get the signatures of the person from whose custody
those properties are found and seized on the
photographs with time and date.
4. The Seizing Officer or Investigation Officer
shall mention the approximate value of the seized
properties and their durability specifically in the
Mahazar. If the seized property is perishable in nature,
then he shall mention the duration of its life in the
Panchanama and in the PF specifically. Further he shall
request the court to dispose such perishable property
at the earliest or permit him to dispose of such
property at the earliest.
5. The SHO/Investigation Officer shall forward
the seized properties along with proper PF containing
details and descriptions of the seized properties in
consonance with the seized properties along with copy
of Mahazar and photocopies and audio video visuals so
obtained.
6. That, the Investigation Officer shall request
the court to dispose of or take the steps for releasing
the seized properties ad-interim to the proper and
legitimate claimant within 14 days from the production
of such PF and properties. Such request shall be
enclosed with the statement of the property as per the
format given here with.
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7. That, if the Investigation Officer identifies the
legitimate claimant of such seized properties and
deems necessary to handover the possession of such
properties for immediate purposes, then he shall
request the court to deliver the such seized properties
to the identified legitimate claimant by getting
Indemnity Bond executed. Upon the court order the
Investigation Officer may deliver ad-interim custody of
the seized property to such claimant.
8. While delivering ad-interim custody of seized
property either by the court or by the Investigation
Officer upon the court order, he shall ensure that the
property so delivered is having description as per the
statement of the property which is already prepared
during the course of Mahazar. The photo copies of
delivering seized properties shall be taken along with
signatures of the claimant there on and compliance
report be submitted to the court by enclosing all
relevant documents and photographs.
9. That, upon conclusion of trial or disposal of
case, the Investigation Officer shall ensure that the
ad-interim custody whether made absolute or not or
whether the property seized is confiscated or forfeited
to the state or not. If no such orders are found either
in judgment or in any orders, then the Investigation
Officer shall request the concerned Judicial Courts to
pass suitable order for final disposal of the properties
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as per the provisions of Bharatiya Nagarika Suraksha
Sanhita, 2023.
Hence all the Investigation Officers and Station
House Officers of the State of Karnataka shall follow
the above procedures relating to the properties seized
and for their respective disposal.
All unit officers and other supervising officers
shall ensure compliance."
21. Pursuant to the order passed in
W.P.No.21503/2022, the learned State Public Prosecutor
brought to the notice of this Court the amendment to
Section 232 (G) of Karnataka Motor Vehicles Amendment
Rules. The amendment to the said rule is culled out here
under for ready reference:
"As per the Karnataka Motor Vehicles
(Amendment) rules 2018:
Section 232G: Prohibition against release of
motor vehicles involved in accident
Section 232G(1): No court shall release a motor
vehicle involved in an accident resulting in death or
bodily injury or damaged to property, when such
vehicles is not covered by the policy of insurance
against third party risks taken in the name of
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registered owner fails to furnish copy of such
insurance policy despite demand by investigating
police officer, unless and until the registered owner
furnishes sufficient security to the satisfaction of the
court to pay compensation that may be awarded in a
claim case arising out of Section 232(2): Where the
Motor Vehicle is not covered by a policy of insurance
against third party risk or when registered owner of
the Motor Vehicle fails to furnish copy of such policy,
in circumstance mentioned in sub rule(1), the Motor
Vehicle shall be sold off in public action by the
Magistrate having jurisdiction over the area where
accident occurred, on expiry of three months of the
vehicle being taken in possession by the investigating
police officer and proceeds there off shall be deposited
with the Claims Tribunal having jurisdiction over the
area in question, within fifteen days for purpose of
satisfying the compensation that may have been
awarded or may be awarded in a claim case arising
out of such accident.
The above provisions are helpful in disposing
uninsured vehicles involved in the accidents. To
ensure a systematic approach and effective
compensation for affected parties, and also to dispose
the vehicles which are lying in the police station
premises and to prevent undue delay in their disposal,
the following protocol is proposed:
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1. Possession and Sale of Vehicles:
Vehicles involved in accidents that do not have
insurance coverage, once taken into possession by the
Investigation Officer (IO), shall be held for a period of
three months.
After the expiration of this period, the Magistrate with
jurisdiction over the area where the accident occurred
will oversee the public auction of these vehicles.
2. Deposit of Auction Proceeds:
The proceeds from the auction of these uninsured
vehicles shall be deposited with the Claims Tribunal
having jurisdiction over the area in question.
The deposit must be completed within 15 days
following the auction.
3. Police officers role in disposal:
If authorized by the Magistrate, the Investigation
Officer may conduct the public auction through the
MSTC (Metal Scrap and Trading Corporation, a Gol
Miniratha company) portal.
The proceeds from the auction should be deposited
into the account head specified by the jurisdictional
Magistrate.
This procedure ensures that uninsured vehicles are
managed efficiently while securing funds for
compensating accident victims.
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The above inferences are drawn from the Government
notification dated 04.10.2018 which is appended to
this note.
Therefore suitable orders may be issued by Hon'ble
High Court to all the magistrates dealing with motor
vehicles accident cases to dispose uninsured vehicles
as per the provisions of Section 232G of the Karnataka
Motor Vehicles Act within the specified time frame."
22. This Court also noted that sophisticated
material objects namely; laptops and such other electronic
equipments/gadgets, high end mobile telephones when
seized by the police, at the police station level there is no
proper infrastructure to store them in a proper manner.
Many times, those material objects may throw sufficient
light in unearthing the truth in the alleged crime.
Therefore, the same needs to be properly stored without
causing damages to the storage media available in the
gadgets like Data card, Hard Disk etc.
23. Many times, the Constables, Head Constables,
Assistant Sub-Inspectors who usually handle the seized
material objects, may not have requisite knowledge in
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properly handling the seized material objects which are
delicate and sophisticated in nature. Exposing the seized
material objects to extreme weather conditions or while
sealing the material objects in the usual form with cloth
and sealing the same, may damage the material objects
not only resulting in the diminishing value of the seized
material objects, but also the loss of the material evidence
which could be retrieved from those material objects.
24. Hence, this Court felt the necessity of issuing
proper directions while handling the material objects.
25. Sri Sandesh J Chouta, learned Senior Counsel
assisted the Court as Amicus Curiae as he was
representing in a similar matter which was thereafter tried
by some other Court having regard to the change in the
roster.
26. He has also furnished sufficient inputs in this
regard which is placed on record with appreciation. He
relied upon the principles of law enunciated in the case of
Sri Prashant Rao v. The Chief Secretary Government
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of Karnataka, W.P.No.21503/2022. The order dated
08.02.2024 in the said writ petition reads as under:
"Heard Shri Prashant Rao, petitioner/party-in-person
and Shri K.Shashi Kiran Shetty, learned Advocate
General.
Perused the affidavits dated 01.02.2024 and
06.02.2024 filed by Shri Anucheth, Joint
Commissioner of Police (Traffic), Bengaluru and Shri
Tushar Giri Nath, Chief Commissioner, BBMP
respectively. Learned Advocate General submitted
that in the joint meeting held on 31.01.2024
between officers of BBMP and officials of Police
Department (Traffic), following four areas have been
identified:
"i) Removal of encroachments on the footpaths,
pavements.
ii) Regulating street vendors as per the "Street
Vendors (Protection of livelihood and regulation of
street vending) Act, 2014 and the "Karnataka Street
Vendors (Protection of Livelihood, Regulation of
Street Vending and Licensing) Scheme, 2020.
iii) action to be taken in respect of vehicles parked
on footpaths, pavements.
iv) the mode of identifying and disposal of
abandoned/unclaimed vehicles within the city of
Bengaluru."
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Learned Advocate General further submitted
that abandoned vehicles on the road shall be towed
away and owners of vehicles shall be contacted
through Regional Transport Officer. Thereafter,
permission will be sought by jurisdictional Magistrate
to auction the vehicles. Adverting to the proceedings
in PF No.53/2022 on the file of the Metropolitan
Magistrate, Traffic Court-I, Mayo Hall, Bengaluru,
which is annexed to the affidavit filed by Shri
Anucheth, Joint Commissioner of Police (Traffic),
learned Advocate General submitted that learned
Magistrates are permitting sale of unclaimed vehicles
after expiry of 6 months. He submitted that this
Court may consider reducing the time duration as
storage of unclaimed vehicles will cause
administrative hazard. We see some force in his
arguments. In our considered view, vehicles which
are beyond 15 years old can be sold after 30 days,
vehicles which are 1 to 5 years old after 3 months
and vehicles which are 5 to 15 years old within 2
months, after following all procedures and taking
permission from jurisdictional Magistrate. The
Government may seek appropriate directions based
on further development in the matter. Registrar
General shall communicate this order to the learned
Magistrates in Bengaluru City."
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27. In the light of the above legal principles and
factual aspects and the arguments that are put forth on
behalf of the parties, this Court perused the impugned
order.
28. In the first place, the Investigating Agency
failed to incorporate the value of the seized material
objects in the First Information Report itself. Complainant
has clearly stated that the properties worth Rs.35,00,000/-
to Rs.40,00,000/- were stolen away from the shop of the
complainant.
29. The details of the stolen material objects were
also mentioned as referred to supra. Whereas in the First
Information Report the police had shown the value of the
stolen material objects as nil.
30. When the properties were placed before the
learned Trial Magistrate by way of a Property Folio Memo
('P.F. Memo' for short), again the value of the property
was not at all shown.
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31. Pertinently, in a casual manner, the learned
Trial Magistrate permitted the Investigating Agency to
retain the seized material objects. The request made by
the Investigation Officer is again in a usual manner without
assigning as to why the material objects are to be retained
by the Investigating Agency and purpose of retaining
them.
32. In column No.4 of P.F. Memo, it is incumbent
for the Investigating Agency to mention the details of the
seized material objects so as to distinctly identify them
during the trial and also value thereof.
33. Why the Investigation Officer who submitted
the P.F. Memo to the learned Trial Magistrate dated
02.10.2023, failed to mention the value of the seized
material objects is not forthcoming on record. It is also
noted that the learned Trial Magistrate permitted the
seized property to be retained by initialling the said P.F.
Memo on 06.10.2023 without application of judicial mind.
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34. This depicts that the seized material objects
were handled by the Investigating Agency in a very casual
manner. Learned Trial Magistrate also did not bestow his
attention while permitting the Investigating Agency to
retain the seized material objects.
35. Admittedly, there were twenty nine I-phones
and three 1+company manufactured mobile telephones,
eleven Samsung company manufactured mobile
telephones and six number laptops manufactured by Apple
company, Sony company manufactured handy cams are
forming the part of the seized material objects apart from
other small gadgets.
36. In the impugned order learned Trial Judge did
not bestow his attention to at least mention the details of
the seized material objects and its value thereof.
37. Paragraph No.3 of the impugned order reads
as under:
"3. Heard. The petitioner claims to be the
owner of the aforesaid properties. The accused
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persons were stolen the aforesaid properties by
break open the shop. In order to prove the
ownership of the aforesaid properties the petitioner
has produced registration certificate of establishment
of shop styled as "Gadgets Club" and he is the owner
of the aforesaid shop. In support of his application
he has produced some photographs and also bills to
show the purchase of the seized properties".
38. As could be seen, the learned Trial Judge has
doubted the genuineness of documents which are
produced to prima-facie establish the ownership of seized
material objects.
39. It is pertinent to note that there was no rival
claim in respect of the seized property. Thus, in the
absence of the rival claim, all that the learned Trial
Magistrate was required to consider was, if the material
objects are returned to the applicant who is none other
than the complainant, would it hamper the investigation
and whether those material objects would be available for
identification during the trial.
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40. Whenever, interim custody of the seized
property is permitted to be given by the Court or by the
Investigation Officer upon the Court order, the releasing
officer shall ensure that property released shall have a
proper description which should be inconsonance with the
details of the property seized under the mahazar.
Releasing Officer shall retain photographs/photocopies of
the seized properties and documents of the released
vehicles with the signature of the claimant. Compliance
report shall be submitted to the Court enclosing the
relevant documents and photographs.
41. The learned Trial Magistrate ought to have
taken into account that in the absence of rival claim, the
seized properties could have been released in favour of the
applicant with conditions like taking the photographs and
retaining the documents pertaining to the seized material
objects and indemnity bonds/bank guarantee to the extent
of the value of the seized property.
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42. Learned Trial Magistrate also possesses
sufficient discretionary power to ensure that the seized
property is not alienated and identity thereof is not
altered. Wherever necessary direction can also be issued
to produce the same as and when required during the trial
can also be issued while passing release order. Without
adhering to the any of the above, in a casual and
mechanical manner, the learned Trial Magistrate has
dismissed the application of the applicant resulting in
miscarriage of justice.
43. Therefore, in the facts and circumstances of
the case on hand, the impugned order needs to be set
aside by exercising the revisional power vested in this
Court and application needs to be allowed.
44. Having said thus, this Court felt the necessity
of issuance of general directions insofar as the release of
the seized material objects and also for proper
preservation of the material objects before its release
either at the crime stage or after the charge sheet is filed
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or when the properties are deposited into the Court along
with the charge sheet.
45. Further, it is noticed that State Government is
required to frame necessary rules which would be in
consonance with the power of the Court for disposal of all
the seized properties including the electronic devices,
digital devices, seized medical samples, food items,
adulterated petroleum products which are highly
inflammable in nature, perishable objects, precious metals
like gold and silver etc.
46. Till such time, the directions issued by this
Court would serve as model guidelines for the Trial
Magistrate while dealing with release of the seized
properties either under Section 451 and 457 Cr.P.C., or
under Section 497 of BNSS.
47. As such, the following directions are issued
which would cover in general the disposal of the properties
as is contemplated under Section 451 and 457 of Cr.P.C.,
and presently under the provisions of Section 497 of
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Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS' for
short).
Directions/Guidelines:
(1) Description of the seized property shall be
incorporated in the seizure mahazar so as to
distinctly identify the seized property at all
stages in the criminal trial.
(2) Mahazar shall include, serial numbers, make of
the seized property, manufacturers name, if
any, distinctive marks, if any, hall mark, if any,
on the gold and silver articles with distinct
numbers.
(3) Mahazar shall include, approximate value of
the seized property (estimation of valuation to
be obtained from the registered valuers
wherever necessary). It shall accompany the
P.F. Memo when it is placed before the learned
Trial Magistrate.
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(4) Trial Magistrate shall verify the contents of
mahazar with aforesaid details and personally
examine the seized properties and satisfy that
the seized properties are tallying with the
description made in the mahazar and P.F.
Memo.
(5) Unless a specific grounds/reasons are made
out by the Investigating Agency, seized
property shall not be allowed to be retained by
the Investigating Agency.
(6) Even if the request for retention is allowed, the
learned Trial Magistrate instead of passing a
mechanical order by initialing on the
readymade seal with words 'permitted to
retain', pass a suitable speaking order in the
order sheet of the case, directing the
Investigating Agency that they would be
retaining the property as a 'Bailee' and ensure
that proper care is taken to preserve the
seized property.
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(7) Learned Trial Magistrate shall ensure that
proper infrastructure is available with the
police for preservation of the seized material
objects and must report to the Court as to its
status when the charge sheet is filed.
(8) If the seized property is sent to the Forensic
Science Laboratory, Investigating Agency shall
ensure that the property is sent in a proper
sealed condition and seals are intact, at all
levels.
(9) Whenever the property is ordered to be
retained by the Investigating Agency, and if an
application seeking release is rejected, after
the investigation, and if the need of retaining
property is not imperative, the Court may pass
suitable orders with regard to the interim
disposal of the property.
(10) Learned Trial Magistrates/leaned Sessions
Judges are hereby directed to ensure the
disposal of the property in respect of Narcotic
33
drugs and psychotropic substances as per the
directions of the Hon'ble Supreme Court in the
case of Union of India vs. Mohanlal and
another, reported in (2016) 3 Supreme
Court Cases 379.
(11) In case of seizure of the vehicles, the standard
operating procedure and the amendment to
the Rule 232G of Karnataka Motor Vehicles
(Amendment) Rules, 2018 shall be borne in
mind by the learned Trial Magistrate while
disposing the application filed under Section
451 and 457 Cr.P.C., or under Section 497 of
BNSS.
(12) In respect of the electronic and digital material
objects, the learned Trial Magistrate shall
ensure that the same to be retained by the
police under retention order to ensure that the
same are not exposed to the atmospheric
moisture, resulting in damage to the seized
electronic equipment or data stored therein.
34
(13) Necessary directions in this regard shall be
made in the order while P.F. Memo is filed into
the Court seeking retention of the seized
electronic items, Compact Disc, Pendrives and
such other storage media when produced and
ordered to be retained shall be properly
preserved by taking necessary precautions so
as to avoid the damage to the data stored
therein which may have a direct bearing on the
merits of the trial.
(14) Precious items like Gold, Silver shall not be
ordinarily to be retained with the Investigating
Agency unless the same is required for
investigation purpose like identity, finger print
examination etc., and wherever it is necessary,
photographs/videographs of the seized
material objects can ordered to be returned to
the applicant after deciding the rival claim, if
any.
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(15) In respect of the explosives, inflammable
substances, like adulterated petroleum
products, gas cylinders etc, the learned Trial
Magistrate shall ensure the safety of the seized
material objects, not only the safety of seized
material objects and possible accident in the
place where it is stored and pass suitable
orders.
(16) In respect of perishable items, the learned
Trial Magistrate without loss of time, shall
consider the application and pass suitable
orders like auctioning the perishable items and
directing the auction money to be kept in
'escrow account' subject to the final result of
the criminal proceedings.
(17) In respect of the seized material objects under
the special enactments like Essential
Commodities Act etc., learned Trial Magistrate,
shall strictly adhere to the rules and
36
regulations under the special enactment and
pass appropriate orders as early as possible.
(18) In respect of seized cash, photograph/
videograph of the currency notes to be taken
and serial numbers of the seized currency
notes shall be written in a mahazar.
Immediate steps are to be taken to deposit the
currency notes to Reserve Bank of India and
value of the currency notes thereof shall be
ordered to be returned to the successful party
at the end of the trial.
48. These directions are only indicative and not
exhaustive and would serve and guide broadly the power
to be exercised by the learned Trial Magistrate or
Revisional Courts as the case may be in disposal of the
seized properties under Section 451 and 457 Cr.P.C., and
497 of BNSS.
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49. In view of the above discussion, following
order is passed:
ORDER
Criminal Revision petition is allowed.
The application filed by the applicant seeking
interim custody of the above referred material
objects is allowed on following conditions:
(1) Revision petitioner shall execute an indemnity
bond to the tune of Rs.40,00,000/-.
(2) Revision petitioner is hereby directed to take
the photographs and videographs of the seized
material objects, for which the Investigating
Agency shall cooperate and produce the same
before the Court in a pendrive.
(3) Revision petitioner shall not alter the identity
of the seized material objects and in case, if
there is a deterioration in value, may apply for
sale of the material objects after the same is
identified before the Court of law by examining
the mahazar witnesses inasmuch as the charge
sheet is already filed.
(4) If any such application is made, learned Trial
Magistrate is at liberty to pass appropriate
order.
(5) Revision petitioner shall produce the material
objects as and when directed.
Sd/-
(V.SRISHANANDA)
JUDGE
MR
