Ushabh Bhandari Rishab Bhandari vs State Of Rajasthan
2023 Latest Caselaw 3312 Raj

[2023/RJJD/010072]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 4344/2019

Ushabh Bhandari @ Rishabh Bhandari S/o Sh. Chandra Singh Bhandari, Aged About 48 Years, B/c Oswal, R/o 16-G, Bhupalpura, Tehsil Girwa, District Udaipur (Raj.)

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Deputy Director Of Income Tax (Inv)-1, 16 Saheli Marg, Moomal Tower, Udaipur.

                                                                       ----Respondents


     For Petitioner(s)         :     Mr. Pradeep Shah
     For Respondent(s)         :     Mr. Vikram Sharma, PP
                                     Mr. KK Bissa for respondent No.2



                HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                      Judgment

REPORTABLE

    RESERVED ON 11/04/2023
    DATE OF PRONOUNCEMENT : 20/04/2023

1. Instant criminal misc. petition has been filed by the

petitioner against the order dated 31.07.2019, passed by learned

Additional Sessions Judge, Khairwada, District Udaipur in Criminal

Revision No.3/2019 (CIS No.3/2019) by which he dismissed the

revision petition filed by the petitioner and upheld the order dated

26.04.2019, passed by learned Judicial Magistrate, Khairwada,

District Udaipur in Complaint No.1/2018 of Police Station

Khairwada, District Udaipur by which the seized currency was

refused to be handed over to the petitioner.

2. Succinctly stated, the facts of the case are that a sum of

Rs.47,00,000/-, which was being carried by one Sh. Vasudeo

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Chaubisa, an employee of the Firm of the petitioner, was seized by

the Police, being a suspected property, near Khairwada Toll Plaza

on 09.10.2018 under Section 102 Cr.P.C. An application for release

of the said amount was filed by the petitioner before the learned

Judicial Magistrate, Khairwada, District Udaipur stating that the

said amount belongs to him and the same has been disclosed in

the income tax returns submitted till the month of October, 2018.

The learned Judicial Magistrate rejected the petitioner's application

vide order dated 26.04.2019. Being aggrieved, the petitioner

preferred a revision before the learned Additional Sessions Judge,

Khairwada, who also dismissed the revision vide order dated

31.07.2019 and affirmed the order dated 26.04.2019 passed by

learned Judicial Magistrate refusing to hand over the seized

currency of Rs.47 lacs to the petitioner. Hence this misc. petition

before this Court.

3. Counsel for the petitioner submits that Section 102 Cr.P.C.

authorizes a Police officer to seize any property, which may be

alleged or suspected to have been stolen or which may, found

under circumstances, create a suspicion of commission of any

offence. In the present case, the currency of Rs.47 lacs was

certainly seized by the Police from Sh. Vasudeo Chaubisa,

employee of the petitioner, who at the time of seizure made a

specific disclosure about the source of said currency of Rs.47 lacs.

Since, the Police after having recovered currency of Rs.47 lacs

under Section 102 Cr.P.C., forwarded the report, as mandatorily

required by virtue of sub-section (3) of Section 102 Cr.P.C. to the

concerned Magistrate (i.e. Judicial Magistrate, Khairwada), where

the petitioner filed an application for handing him over the

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currency, inasmuch as the same was not claimed by anyone else

and also that satisfactory explanation about the currency being

possessed by Vasudeo Chaubisa was disclosed. Thus, the learned

courts below have committed error in refusing to hand over the

seized currency to the petitioner by the impugned orders.

4. It is further submitted that in the present case, neither there

was any allegation of suspicion of the currency being stolen, or

was there any suspicion that some offence has been committed.

Thus, in absence of any such position, the courts below were

legally required to hand over the custody of the seized currency of

Rs.47 lacs to the petitioner.

5. Furthermore, it appears that both the courts below while

proceeding to pass impugned orders have kept in consideration

the letter dated 24.10.2018 given before the learned trial court by

the Deputy Director, Income Tax Department, not to give

recovered currency to the petitioner for the same was unexplained

and unaccounted cash, and that notice under Section 132-A of the

Income Tax Act had already been issued to the petitioner. It is

submitted that even if some delinquency has been committed by

the petitioner while filing income tax returns, then also the

Income Tax Department can, by conducting an enquiry with

respect to seized cash currency of Rs.47 lacs, proceed to levy

penalty against the petitioner according to the provisions

enumerated in the Income Tax Act, but a competent court cannot

refuse legal right of an incumbent, who is entitled to have

currency released in his favour.

6. It is further submitted that the basic approach of both the

courts below while dealing with facts of the present case was

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totally erroneous and contrary to the specific law applicant in the

present case. Even otherwise, there cannot be said to be any

dispute that the currency notes recovered by the police under

Section 102 Cr.P.C. are not required for the purpose of any enquiry

or trial and, therefore, it was expected from the trial court to have

passed suitable order for release of the currency in favour of the

petitioner. It is therefore, prayed that the impugned orders may be

set aside and the currency of Rs.47 lacs may be released in favour

of the petitioner and the petitioner is also ready to deposit some

bank guarantee for the same.

7. Learned Public Prosecutor and Learned counsel for

respondent No.2--Income Tax Department has vehemently

opposed the prayer made by the counsel for the petitioner and

submitted that warrant under Section 132-A(1) of Income Tax Act

has already been issued to the petitioner in respect of the seized

currency and subsequent assessment proceeding is still pending in

this case, therefore, the seized currency may not be released in

favour of the petitioner.

8. Heard learned counsel for the parties and perused the

impugned orders as well as material available on record.

9. Hon'ble Supreme Court in the case of Sunderbhai Ambalal

Desai Vs. State of Gujarat reported in 2002 (10) SCC 283

has issued detailed directions while referred to Sections 451 and

457 of the Code of Criminal Procedure, which reads as under :-

"In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:--

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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 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. 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.

8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basayya Kom Dayamangouda Patil v. State of Mysore and Anr. : 1977CriLJ1141 : 1977CriLJ1141 , 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 its 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 inquire or trial. This may particularly be

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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 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 a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. Valuable Articles and Currency Notes

11. With regard to valuable articles, such as, golden or silver 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 purpose, if material on record indicates that such articles belong to the complainant at whose house theft,

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robbery or dacoity has taken place, then seized articles be handed over to the complainant after:--

(1) preparing detailed proper panchnama 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.

13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.

14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed.

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10. After hearing learned counsel for the parties and upon

perusal of the record, this Court is of the opinion that as per the

legislative intent of Section 451 Cr.P.C., the property means any

property regarding which an offence appears to have been

committed or which appears to have been used for the

commission of any offence, and therefore, the release of

vehicle/article/currency notes under Section 451 Cr.P.C. cannot be

restricted merely on account of the fact that they were used for

commission of any offence.

11. Furthermore, in the aforecited precedent law, the Hon'ble

Apex Court has held that the court should pass appropriate orders

immediately and the articles should not be kept for a long time at

the police station, and the procedure for disposal of the seized

valuable articles, currency notes, vehicles, seized liquor and

narcotic drugs has been laid down therein.

12. In the present case, currency of Rs.47 lacs were recovered

by the Police under Section 102 Cr.P.C. way back on 09.10.2018

and still the matter is at the initial stage of the trial and the

currency in dispute is lying in the Police Station.

13. In light of the aforesaid discussion, the present misc. petition

is allowed. The impugned orders dated 31.07.2019 and

26.04.2019 passed by the courts below refusing to hand over the

seized currency to the petitioner, are hereby quashed and set

aside. The seized currency of Rs.47 lacs is ordered to be released

in favour of the petitioner on 'supurdgi' subject to the conditions

that the petitioner shall furnish a bank guarantee of Rs.10 lacs in

favour of the respondent-Income Tax Department, initially for a

period of one year and which shall be renewed by the petitioner till

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completion of proceeding of tax assessment over the seized

currency of Rs.47 lacs, by the respondent-Income Tax

Department. Upon completion of proceedings of tax assessment,

the respondent Income Tax Department shall be at liberty to

recover tax from the bank guarantee as submitted by the

petitioner.

Stay application is also decided.

(MANOJ KUMAR GARG),J 161-MS/-

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