Heard the learned counsel for the petitioner, learned standing counsel and the learned AGA for the respondents and perused the record.
This is a writ petition for quashing the order dated 9.5.2011 passed by the Additional District and Sessions Judge, Court No.11, Muzaffarnagar in criminal appeal no. 107 of 2011 as well as the order dated 23.2.2011 passed by the Additional Chief Judicial Magistrate, Kairana, district Muzaffarnagar in case crime no. 1051 of 2010, police station Shamli, district Muzaffarnagar.
It appears that certain goods alongwith truck no. UP - 78/ BT 4345 have been seized by the police of police station Shamli district Muzaffarnagar in connection with the aforesaid case.
The Commercial Tax Department was invoiced by the police as there was alleged evasion of commercial tax. Mr. D.K. Mathur, Additional Commissioner, Commercial Tax, Allahabad, Mr. J.P. Agarwal, Additional Commissioner Grade-2, Commercial Tax, Allahabad and Mr. Ram Chandra, Assistant Commissioner, Commercial Tax, Muzaffarnagar, are present in person. Mr. Ram Chandra, Assistant Commissioner stated that he has already inspected the goods and assessed their value for the assessment of tax and the goods are no more required for the assessment.
More so, the aforesaid goods as well as the truck are "case properties" in the aforesaid criminal case. The learned Additional Chief Judicial Magistrate, Kairana seems to have rejected the prayer of the petitioner for release on the ground that the matter was pending for investigation and papers pertaining to the goods were forged and not genuine. The learned Additional Sessions Judge was also of the same view.
The learned counsel for the petitioner submitted that the petitioner may be required to furnish adequate security in lieu of goods to be released by the Magistrate, who undertakes to do so if the Magistrate so requires him.
The learned counsel for the petitioner further submitted that most of the seized goods are electronic items and dry fruits etc. and they are likely to be damaged, if they are kept at the police station during the investigation or trial, therefore, the rejection of the release application on the ground of pendency of the investigation was not proper. In view of the fact that the petitioner claims the ownership and legal possession of the seized goods, the learned Magistrate was required in law to hold a proper inquiry to find out merit in the claim. He was further required to provide an opportunity to the petitioner to prove his claim. Disposal of the release application in a summary manner without holding a proper inquiry can not be upheld.
The Apex Court has already settled the legal position regarding the disposal of case properties relating to criminal cases in Sunderbhai Ambalal Desai vs. State of Gujarat (2002) 10 SCC. In paras 4 to 8 and 13 of the judgment, the Apex Court has made the following observations:
"4. Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which reads 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 of trial, the Court may make such order as it thinks fit for the property 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."
5. 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.
6. 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.
7. 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 panchnama 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 property 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.
8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basayya Kom Dayamangouda Patil v. State of Mysore and Anr, MANU/SC/0136/1977, 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 its 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 inquire 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."
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13. 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 of 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."
The Magistrate was, therefore, required to pass an appropriate order keeping in view the principles laid down by the Apex Court in the aforesaid case. In this view of the matter, the rejection of the application for release only on the ground that the investigation was pending, was not proper. In that situation the Magistrate could ask for appropriate security and could have required the police concerned to prepare an inventory of goods before the release.
Therefore, the view of the learned Magistrate as well as the Additional Sessions Judge that release during the investigation was not proper, cannot be upheld.
So far as the question of assessment of commercial tax is concerned, the authorities have already proceeded with the matter and have collected relevant materials relating to details of the Articles and their prices and they do not require the properties any more. In this view of the matter, the question of liability of commercial tax may not be taken into consideration as impediment on the way of the prayer for release of the goods under section 451 of the Code of Criminal Procedure.
The petition is therefore, allowed. The Additional Chief Judicial Magistrate, Kairana, district Muzaffarnagar is directed to reconsider the matter and pass a fresh order in accordance with law within two months.
Order Date :- 31.5.2011 RKSh