SUNDERBHAI AMBALAL DESAI A v.

STATE OF GUJARAT

OCTOBER 1, 2002

[M.B. SHAH AND D.M. DHARMADHIKARI, JJ.) B

Code of Criminal Procedure, 197 3:

Ss. 45 I and 452-Custody or disposal during inquiry or trial of property seized by police-Valuable articles, currency notes, vehicles, liquor, narcotic C drugs etc.-Directions given for custody and 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 D (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.

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 G 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 H 39

A 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 23.11.200 I by replacement of mudammal articles including golden ornaments by other spurious articles, misappropriation of B Jhe amount which was kept at the police station, unauthorised auction of the

property.\vhich was seized and kepi 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 C leave petitions.

At the time of the hearing of these matters, learned counsel for the parties submitted that various articles are kepi: at the police station for a long period by not adhering to the proc.edure prescribed under Cr.P.C., which creates difficulties for keeping them in safe custody. Finally, the sufferers D 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 E 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 custoc!y of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if ii is otherwise expedienl so to do, the Court inay, after recording such evidence as ii 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

SUNDERBHAI AMBALAL DESAI v. STA TE OF GUJARAT 41

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.-

(I) 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 p.:rson entitled C 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 ihe Magistrate thinks fit and if such person is unknown, the Magistrate . D 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 E regard to such property, such as-

(I) 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 G 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:-- H

A l.

Owner of the article would not suffer because of its remaining

unused or by its misappropriation.

Court or the police would not be required to keep the article in safe custody;

If the proper panchanama before handing over possession of article is prepared, that can b1! 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

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. Basavva Korn Dyanmangouda Patil v. State of Mysore andAnr., [1977] 4 SCC 358, this Court dealt with a case where the seized D 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 1found 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 propt:rty which has been the subjectmatter 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 when: 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 thait one of the essential requirements of the Code is that the articles conc1:rned 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

. l

SUNDERBHAI AMBALAL DESAI v. STATE OF GUJARAT 43

or indirectly should be disposed of by the Court and a just and proper A 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." B

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 ju3tice so require, order C payment of the value of the property.

To avoid such a situation, in our view, powers under Section 45 l 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 a11icles 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. E

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:-

(I) preparing detailed proper panchanama of such articles: F

(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 G evidence, as it thinks necessary, tis 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 H

A 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 SllO B after preparing proper panchnama to keep such articles in a bank locker. In

any case, such articles should be produced b1efore 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 C 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.

Vehides

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 fhat 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 E 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 iis true owner is always a matt•:r of litigation and a lot of F arguments are advanced by the concerned persons.

In our view, whatever be the situation, it is of no use to keep suchseized vehicles ill the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and G 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 suc:h vehicle may be ordered to H be auctioned by the Court. If the said vehicle i:s insured with the insurance

I .

SUNDERBHAIAMBALALDESAI v. STATE OF GUJARAT 45

company then insurance company be informed by the Court to take possession A of the vehicle which is not claimed by the owner or a third person. Iflnsurance 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 B 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 C police station. No purpose is served by such storing.·

Similarly for the Narcotic drugs also, for its identification, procedure under Section 45 I Cr.P.C. should be followed of recording evidence and disposal. Is identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser D 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 E 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.

R.P.

Matter is pending.