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Code of Criminal Procedure, 1973: Ss. 451 and 452-Custody or disposal during inquiry or trial of properly seized by police-Valuable articles, currency notes, vehicles, liquor, narcotic drugs etc. -Directions given for custody arid disposal of such articles so that no loss is caused either to State exchequer or to the owner of the property or to the Insurance company because of keeping them for a long time either in Police Malkhanas or at Police Stations. =CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (CRL.) No. 2745 of 2002. From the Judgment and Order dated 20.6 2002 of the Gujarat High Court in Crl. R.A. No. 241 of 2002. WITH S.L.P.(Crl.) No. 2755 of 2002. Ujwal Kumar Jha, Aslam Ahmed, Ranjan Kumar Jha, Nakul Dewan and Ejaz Maqbool for the Petitioners. S.K. Dholakia and Ms. Hemantika Wahi for the Respondent. =2003 AIR 638 , 2002(3 )Suppl.SCR39 , 2002(10 )SCC283 , 2002(9 )SCALE153 , 2002(10 )JT80

 

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CASENO.:

Special Leave Petition (crl.) 2745 of 2002

PETITIONER:
SUNDERBHA1 AMBALAL DESAI

RESPONDENT:
STATE OF GUJARAT

DATE OF JUDGMENT: 01/10/2002

BENCH:
M.B. SHAH & D.M. DHARMADHIKARI

JUDGMENT:
JUDGMENT

2002 Supp(3) SCR 39

The following Order of the Court was delivered :

In these two petitions filed by the police inspectors serving the Gujarat
State, it has been contended that prosecuting agency has no right to ask
for remand of petitioners (accused) for the purpose of collecting evidence
and the application moved for remand of the petitioner (accused) was
unjustified because anticipatory bail was granted to them.

It is the prosecution version, as per the FIR lodged on 7.2.2002 by the
Assistant Commissioner of Police ‘D” Division, Surat that petitioners and
other police personnel are involved in offences punishable under Sections
429, 420, 465, 468, 477-A and 114 IPC. It is alleged that when they were
working at various police stations, they have committed offences during the
period from 20.2.1992 to 23.11.2001 by replacement of mudammal articles
including golden ornaments by other spurious articles, misappropriation of
the amount which was kept at the police station, unauthorised auction of
the property which was seized and kept in the police custody pending trial
and tampering with the records of police station. The High Court by its
judgment and order dated 20.6.2002 rejected the application against the
order passed by the trial court granting remand of the petitioner. Hence,
these special leave petitions.

At the time of the hearing of these matters, learned counsel for the
parties submitted that various articles are kept at the police station for
a long period by not adhering to the procedure prescribed under Cr.P.C.,
which creates difficulties for keeping them in safe custody. Finally, the
sufferers are-either the State exchequer or the citizens whose articles are
kept in such custody. It is submitted that speedier procedure is required
to be evolved either by the Court or under the rules for disposal of
muddamal articles which are kept at various police stations as most of the
police stations are flooded with seized articles. It is, therefore,
submitted that directions be given so that burden of the Courts as well as
at the police station can, to some extent, be reduced and that there may
not be any scope for misappropriation or of replacement of valuable
articles by spurious articles.

Learned counsel further referred to the relevant Sections 451 and 457 of
Code of Criminal Procedure, which read thus-

“451. Order for custody and disposal of property pending trial in certain
cases.-When any property is produced before any Criminal Court during any
inquiry or trial, the Court may make such order as it thinks fit for the
proper custody of such property pending the conclusion of the inquiry or
trial, and. if the property is subject to speedy and natural decay, or if
it is otherwise expedient so to do, the Court may, after recording such
evidence as it thinks necessary, order it to be sold or otherwise disposed
of.

Explanation-For the purposes of this section, “property” includes (a)
property of any kind or document which is produced before the Court or
which is in its custody.

(b) any property regarding which an offence appears to have been committed
or which appears to have been used for the commission of any offence.

457. Procedure by police upon seizure of property.-

(1) Whenever the seizure of property by any police officer is reported to a
Magistrate under the provisions of this Code, and such property is not
produced before a Criminal Court during an inquiry or trial, the Magistrate
may make such order as he thinks fit respecting the disposal of such
property or the delivery of such property to the person entitled to the
possession thereof, or if such person cannot be ascertained, respecting the
custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the
property to be delivered to him on such conditions (if any) as the
Magistrate thinks fit and if such person is unknown, the Magistrate may
detain it and shall, in such case, issue a proclamation specifying the
articles of which such property consists, and requiring any person who may
have a claim thereto, to appear before him and establish his claim within
six months from the date of such proclamation.”

Section 451 clearly 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.

It is submitted that despite wide powers proper orders are not passed by
the Courts. It is also pointed out that in the State of Gujarat there is
Gujarat Police Manual for disposal and custody of such articles. As per the
Manual also, various circulars are issued for maintenance of proper
registers for keeping the muddamal articles in safe custody.

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.

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

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.

To avoid such 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

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.

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.

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 or 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.

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 SIIO 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.

Vehicles

Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat
further submitted that at present in the police station premises, number of
vehicles are kept unattended and vehicles become junk day by day. It is his
contention that appropriate directions should be given to the Magistrates
who are dealing with such questions to hand over such vehicles to its owner
or to the person from whom the said vehicles are seized by taking
appropriate bond and the guarantee for the return of the said vehicles if
required by the Court at any point of time.

However, the learned counsel appearing for the petitioners submitted that
this question of handing over vehicles to the person from whom it is seized
or to its true owner is always a matter of litigation and a lot of
arguments are advanced by the concerned persons.

In our view, whatever be the situation, it is of no use to keep such-seized
vehicles at the police stations for a long period. It is for the Magistrate
to pass appropriate orders immediately by taking appropriate bond and
guarantee as well as security for return of the said vehicles, if required
at any point of time. This can be done pending hearing of applications for
return of such vehicles.

In case where the vehicle is not claimed by the accused, owner, or the
insurance company or by third person, then such vehicle may be ordered to
be auctioned by the Court. If the said vehicle is insured with the
insurance company then insurance company be informed by the Court to take
possession of the vehicle which is not claimed by the owner or a third
person. If Insurance company fails to take possession, the vehicles may be
sold as per the direction of the Court. The Court would pass such order
within a period of six months from the date of production of the said
vehicle before the Court. In any case, before handing over possession of
such vehicles, appropriate photographs of the said vehicle should be taken
and detailed panchnama should be prepared.

For articles such as seized liquor also, prompt action should be taken in
disposing it of after preparing necessary panchnama. If sample is required
to be taken, sample may kept properly after sending it to the chemical
analyser, if required. But in no case, large quantity of liquor should be
stored at the police station. No purpose is served by such storing.

Similarly for the Narcotic drugs also, for its identification, procedure
under Section 451 Cr.P.C. should be followed of recording evidence and
disposal. Its identity could be on the basis of evidence recorded by the
Magistrate. Samples also should be sent immediately to the Chemical
Analyser so that subsequently, a contention may not be raised that the
article which was seized was not the same.

However these powers are to be exercised by the concerned Magistrate. We
hope and trust that the concerned Magistrate would take immediate action
for seeing that powers under Section 451 Cr.P.C. are properly and promptly
exercised and articles are not kept for a long time at the police station,
in any case, for not more than fifteen days to one month. This object can
also be achieved if there is proper supervision by the Registry of the
concerned High Court in seeing that the rules framed by the High Court with
regard to such articles are implemented properly.

Adjourned for three weeks.

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