1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO. 85 /2011 ( Western Carriers vs. State of Maharashtra ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... CORAM : A.P. BHANGALE, J. DATED : 16 th June, 2011. None appears for the petitioners. The authorized person on behalf of the petitioner -company too is absent when the matter was called out. Heard Mr D B Yengal, learned counsel for the respondent. It appears that by this petition the petitioner has questioned the judgment and order passed by learned Sessions Judge, Bhandara in Criminal Revision No. 32/2010 whereby the Revision Application challenging the order dated 27.4.2010 (below Exh.25) in Cri. Case RCC No.91/2008 came to be dismissed. It further appears that an application was filed under section 457 of the Criminal Procedure Code, 1973 (in short “the Code”) for release of muddemal property - aluminum cilly seized in respect of crime registered as CR No. 31/2008 reported under sections 394 read with section 366 read further with section 34 of the IPC at Sakoli Police Station. It appears that the learned Judicial Magistrate, F.C. Sakoli who rejected Exh.25 in RCC 2 No.91/2008 considered the contentions in respect of the seized muddemal property that the accused had melted the aluminum scrap and prepared aluminum cilly, thus, changing the property before its seizure by the Investigating Officer. It was observed that for proper specific identification of seized muddemal, evidence would be necessary. Thus, in absence of documentary evidence as to ownership of aluminum sheet, learned JMFC rejected prayer for release of the muddemal property to the applicant (petitioner herein) as the muddemal would be necessary for identification during the course of evidence. The Revisional Court also when legality and propriety was questioned of the aforesaid order, confirmed it on the same ground. Mr D B Yengal, learned APP with reference to the affidavit-in-reply stated that the muddemal property would be necessary for identification and evidence during the course of evidence in the trial Court because it is case of the prosecution that the accused had melted the aluminum ingots robbed from hijacked truck and original nature of the aluminum ingots was changed in order to conceal the identity by melting the same into aluminum cilly. It is further submitted that it is for the petitioner-Company to lead documentary evidence as to its ownership in respect of the seized aluminum cilly converted from aluminum ingots and, as such, the petition is opposed. 3 Under Section 457 of the Code, when an application is made for return of muddemal property to the Magistrate before whom the application is made, has wide discretion to pass an order as he thinks proper. The discretion in such a case has to be exercised after considering the interest of justice including the prospective necessity of the production of the seized muddemal article at the time of evidence in the trial. Under these circumstances, it would not be just and proper to return the seized property to the petitioner/ applicant if such muddemal property is likely to be required in evidence at the trial. The muddemal property, therefore, need not be returned to the applicant as a matter of course or as a matter of right The question has to be decided on merits in respect of each case by use of discretion considering the interest of justice. It would be open for the petitioner to lead necessary evidence in the trial and to claim the property at the time of conclusion of the trial. It is open for the petitioner to move the trial Court under section 452 of the Code. With the above observation, Writ Petition stands disposed of. JUDGE Sahare