1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Application No.2973 of 2008 (Sagar s/o Bansilal Jain v. State of Maharashtra) And Criminal Revision Application No.158 of 2008 (Sagar s/o Bansilal Jain v. State of Maharashtra) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Shri Anil S. Mardikar, Advocate for Applicant. Shri D.P. Thakre, APP for Non-Applicant No.1. Shri A.K. Choube, Advocate for Non-Applicant Nos.2 and 3. CORAM : R.C. Chavan, J. DATE : 25th November, 2008 1. Criminal Application No.2973 of 2008 seeks to have the order passed in Criminal Revision Application No.158 of 2008 by the learned Ad hoc Additional Sessions Judge-II, Akola quashed and set aside. In the said revision, the order of learned Judicial Magistrate First Class, 6th Court, Akola passed in Crime No.109 of 2008, whereby the learned Magistrate had rejected the application of the present applicants for delivery of seized property, was challenged. 2. Criminal Revision Application No.158 of 2008 is directed against the order passed by the learned Ad hoc Additional Sessions Judge-II, Akola, whereby he allowed Criminal Revision of respondents Rajaram Laxminarayan Bhutada and Nandkishor Laxminarayan Bhutada and directed 2 that the custody of pulses seized by Police Station Ramdaspeth be handed over to Nandkishore Laxminarayan Bhutada on his executing a bond of Rs.1,70,000/- with a solvent surety in the like amount. 3. Facts, which led to filing of the two proceedings, are as under : The applicant is a grain merchant. One Ganesh Deorao Gawande of Shelu Bazar obtained the keys of the applicant's godown from the applicant in order to inspect the grain, got the duplicate keys made and thereafter committed theft of 115 bags of tur and 37 bags of gram. The applicant realized about this theft when he happened to visit the godown considerably after the incident, i.e. on 31-5-2008. Before that on 10-5-2008, the said Ganesh Deorao Gawande had already disposed of the property in the market yard of Agriculture Produce Market Committee, Karanja Lad, District Washim and respondents Rajaram and Nandkishor had purchased the same by paying the price thereof to the vendor, i.e. Ganesh Deorao Gawande. On a report by the applicant, an offence was registered. In course of investigation, the police interrogated the vendor Ganesh and recovered the property at the instance of Ganesh from Rajaram and Nandkishor. 4. Both the parties applied for return of the property to the learned Magistrate. The learned Magistrate rejected the applications of both the parties and directed auction. These orders were challenged by both the parties and as indicated 3 above, the revision of the applicant was rejected by the Court of Session, whereas that of the purchasers was allowed. 5. I have heard the learned counsel for the applicant, the learned APP for the State, and the learned counsel for respondent Nos.2 and 3, in both the matters. 6. The learned counsel for the applicant first relied on the judgment of the Supreme Court in Khatri and others etc. v. State of Bihar and others, reported at AIR 1981 SC 1068, the applicability whereof to the facts of the case is not clear. May be the statement made by an accused leading to discovery under Section 27 of the Evidence Act cannot be washed away by an affidavit, but that would be qua the accused. As far as the third person is concerned, like the respondents herein, and at a stage of the proceedings like the present one where the question is of release of property pending trial, it may not be inappropriate to keep such affidavit out of consideration. In any case, even if that affidavit is excluded, the property was purchased by respondent Nos.2 and 3 in the market yard openly and they had absolutely no reason to suspect that it was a stolen property. 7. The learned counsel for the applicant next relied on a judgment of this Court in Prakash Vernekar v. State of Goa and another, reported at 2007 All MR (Cri) 2293. In that case, when the ornaments were recovered under Section 27 of the Evidence Act, it was held that as a normal rule that after the enquiry or trial when the accused is discharged or acquitted, 4 the Court ought to have restored the property to the person from which it was taken. This normal rule would come into play only after the trial is held. Even at this stage if the normal rule were to be applied, right now the property has been seized from the custody of respondent Nos.2 and 3 and, therefore, pending trial they would be the most appropriate persons to receive the custody of the property on their furnishing requisite bond. Since the property is perishable in nature, interest of no one would be served by keeping the said property in the custody of police or in the property room of the Court. Therefore, the learned Additional Sessions Judge cannot be faulted while directing return of property to respondent No.2 Rajaram Laxminarayan Bhutada. The learned Additional Sessions Judge has, however, ordered return of the property on furnishing bond in the sum of Rs.1,70,000/- only. He ought to have considered the time that may be lost in the trial and the eventual loss that may be caused should the applicant be held entitled to the property. Therefore, the learned Additional Sessions Judge ought to have directed the respondent to execute a bond in the sum of Rs.3,50,000/-, that is twice the value of the property, which has been ordered to respondent No.2 Nandkishore Laxminarayan Bhutada. 8. With this modification in the impugned orders, both the applications are disposed of. JUDGE pdl