IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 22.12.2011 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.R.C.No.1201 of 2010 Kirubanidhi .. Petitioner Vs 1.State by Inspector of Police, N1, Royapuram Police Station, Chennai – 600 013. Crime No.380 of 2010 2.R.A.Duraipandian .. Respondents Criminal Revision filed under sections 397 and 401 of Criminal Procedure Code praying to call for the records and set aside the order passed by the learned XVI Metropolitan Magistrate, George Town, Chennai, in Crl.M.P.No.1216 of 2010 dated 11.10.2010 in Crime No.380 of 2010 pending on the file of the respondent and direct the 1st respondent to remove the seal and also direct the learned XVI Metropolitan Magistrate, George Town, Chennai, to hand over the key bearing Door No.10B, G.A.Road, 4th Lane, Old Washermenpet, Chennai – 600 021, which was deposited by the 1st respondent in Cr.No.380 of 2010 to the petitioner. For Petitioner : Mr.C.D.Johnson For Respondent 1 : Mr.A.N.Thambidurai, APP O R D E R This revision arises against the order of the learned XVI Metropolitan Magistrate, George Town, Chennai, in Crl.M.P.No.1216 of 2010 dated 11.10.2010. 2. The petitioner is the owner of the premises in which goods comprising of food packets, biscuits, chocolates, cosmetic items etc. were stored and in respect of which a case stands registered by the first respondent in Crime No.380 of 2010 for offence under sections 273, 420 IPC r/w section 27 of Drugs and Cosmetics Act. The tenant of the petitioner is the accused in such case. While causing arrest of such tenant/accused, the first respondent seized the offending materials by locking and sealing the rented portion of the property. The representation of the petitioner made to the first respondent on https://hcservices.ecourts.gov.in/hcservices/ 15.06.2006 to hand over the vacant possession by removing the materials went unheeded. The petitioner also informed that Form-95 was submitted before the Court below by the first respondent and a request was made to inspect the property on 10.06.2010 pursuant to which the learned Magistrate passed an order directing the 'B' property clerk to inspect the godown and report. The 'B' property clerk inspected the godown on 15.07.2010, sealed the premises and hand over the keys to the Magistrate on the same day. The petitioner moved W.P.No.13746 of 2010 seeking a direction to the first respondent to remove the seal that had been put on his premises and restore possession of the same after removal of the materials that had been confiscated in connection with Crime No.380 of 2010. The petitioner informed that under orders dated 19.07.2010, such Writ Petition was closed with a direction to work out his remedies before the Magistrate. Informing the above, the petitioner has moved Crl.M.P.No.1216 of 2010 seeking a direction for production of seized materials before the Court and handing over vacant possession and key to the petitioner. Such petition was dismissed by the order under challenge. 3. The Court below observed that the petitioner may collect rents for the property from his tenant and though it had ample powers to deal with case property u/s.451 Cr.P.C., the present was a peculiar case where the property was expired goods and injurious to human beings and therefore, the same could not be given to anybody for interim custody by invoking the provision u/s.451 Cr.P.C. Holding that it was necessary to keep the case property for safe custody, the petition was dismissed. 4. Heard learned counsel for the petitioner and learned Additional Public Prosecutor. 5. The premises belonging to the petitioner have been kept locked at the instance of the first respondent since 01.05.2010. The goods seized in connection with Crime No.380 of 2010 have not been produced before the Court below. It would but have been proper for the first respondent to seek appropriate directions in keeping with Sections 457, 458 and 459 Cr.P.C. Such sections read as follows: "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. https://hcservices.ecourts.gov.in/hcservices/ (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. 458. Procedure when no claimant appears within six months. (1)If no person within such period establishes his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may be prescribed. (2)An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate. 459. Power to sell perishable property.- If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner, or that the value of such property is less than five hundred rupees, the Magistrate may at any time direct it to be sold; and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale." 6. For the fault of the first respondent in not having obtained appropriate directions towards disposal of the goods, the petitioner who is the owner of the property, cannot be made to suffer interminably. Even in passing the order under challenge the Court below has failed to see that u/s.451 Cr.P.C., it was open to it to direct the goods to be sold or otherwise disposed of if the same is subject to speedy and natural decay or if it is otherwise expedient so to do. It is nobody's case that the goods seized are hazardous or dangerous substance. It would be in the fitness of things to direct the first respondent to move the Court below for a fresh order u/s.451 Cr.P.C. The Court below shall after recording such evidence as it thinks necessary direct the seized articles to be disposed of. In recording any evidence, the Court below may follow the procedure indicated in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 Supreme Court 638). 7. Given the circumstances of the case, the Court below before passing order shall also cause notice to the accused in the case and ascertain if such person has any claim. In the event of his having https://hcservices.ecourts.gov.in/hcservices/ any claim, he shall be required to forthwith remove the articles. 8. In the result, the Criminal Revision is allowed and the order of the learned XVI Metropolitan Magistrate, George Town, Chennai, in Crl.M.P.No.1216 of 2010 dated 11.10.2010, is set aside. The Court below is directed to hand over the keys to the petitioner after effecting compliance with the above, not later than one month of the receipt of this order. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar gm To 1.The XVI Metropolitan Magistrate, George Town, Chennai. 2.-Do- thro'the Chief Metropolitan Magistrate, Egmore, Chenani -8. 3.The Inspector of Police, N1, Royapuram Police Station, Chennai – 600 013. 4.The Additional Public Prosecutor, High Court, Madras. Copy to:The Section Officer, Criminal Section , High Court, Madras - 104. 1 cc to Mr.C.D.Johnson , Advocate, Sr.No.78471/11 Crl.R.C.No.1201 of 2010 sv(co) pmk.18.1.2012 https://hcservices.ecourts.gov.in/hcservices/