STATE OF GUJARAT Vs. RASULKHAN CHANDKHAN

JUDGEMENT

(1.) This is a reference by the Additional Sessions Judge of Kaira recommending that the order passed by the First Class Magistrate Nadiad rejecting the application by the prosecution for the return of the Muddamal Liquor to the Police for being sent to the Chemical Analyser. The prosecution filed an application before the learned Magistrate for the return of the Muddamal Liquor to the Police in order to enable the Police to send the Muddamal to the Chemical Analyser as the prosecution had only relied on the hydrometer test but in view of the recent ruling of the Bombay High Court is it necessary to get the liquor examined by the Chemical Analyser. The Magistrate was of the view that once the prosecution submitted a charge sheet it is to be considered that the police investigation has been completed. The Police cannot resume the investigation. He therefore thought that the request of the prosecution was not supported by any provision of law and he rejected the application.

(2.) The State filed a revision application before the learned Additional Sessions Judge who thought that this was not a case where the prosecution is seeking to lead any additional evidence but as the prosecution have realised that hydrometer test alone was not sufficient and it was necessary to have the liquor tested by the Chemical Analyser it would be in the interest of justice to return the Muddamal to the Police for being sent to the Chemical Analyser He therefore thought that the order of the learned Magistrate rejecting the application was not correct and therefore referred the matter to the High Court for setting aside the order passed by the learned Magistrate.

(3.) In my opinion the view taken by the learned Magistrate is correct. Under sec. 170 of the Criminal Procedure Code when an officer in charge of a police station finds that there is sufficient evidence against a person he should forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police-report and he should further send to such Magistrate any weapon or other article which it may be necessary to produce before the Magistrate Once an article or a document comes into the custody of a Court it cannot be returned except according to rules of law. Rules regarding the disposal of property produced before any Criminal Court are found in sections 516A and 517(1) Criminal Procedure Code. Muddamal articles produced under sec. 170 of the Criminal Procedure Code before the Criminal Court cannot be returned to the Police during the trial. In view of the provisions Of the Criminal Procedure Code it is not proper for a Criminal Court to return to the Police the article produced before it under section 170(2) Criminal Procedure Code. The reference is therefore rejected. Reference rejected.