BAL KRISHAN AQARWAL Vs. STATE OF U P

JUDGEMENT

(1.) This is an application under Section 482 Cr. P. C, by applicant Bal Krishna Agrawal for setting aside the orders dated ?7-l-1992 and 17-8-1992, passed by VIII Additional Chief Judicial Magis trate and the Sessions Judge, Allahabad, rejecting the application of the applicant for release of certain silver ornaments in his favour, which were seized by the police station Kydganj, Allahabad, on 2-11-1991. 2 In brief, the facts giving rise to this application are that on 2-11-1992 the police of Police Station Kydganj, Allahabad, arrested four persons includ ing the applicant and Guru Dutta Tripathi and seized silver ornaments weighing one quintal and 20 Kg. alongwith a Maruti Car, bearing No. DNA 5788. The silver ornaments were suspected to be the stolen property and consequently case Crime No. 540 of 1991, under Section 41/411 I. P. C. was registered at the police station on the basis of the recovery made from the four persons including the applicant. Subsequently the Maruri Car was released in favour of the applicant by the Additional Chief Judicial Magistrate on 6-12-1992 and the accused persons were enlarged on bail. After release on bail the applicant moved the Magistrate for releasing the aforesaid silver ornaments in his favour alleging that he is exclusive owner of the seized ornaments and that he is dealing in silver ornaments and is a registered seller of those ornaments. He sent Guru Dutta Tripathi to M/s. K. V. N. Payals, 23-B Nayagarh Street Tamil Nadu on 16-10-1991 with silver for getting the silver ornaments prepared, Guru Dutta Tripathi, who is agent of the applicant, was handed over the ornaments alongwith relevant documents including Coolie Bill and Form No. 31 but by mistake he left those docu ments at the shop of M/s. K. V. N. Payala. The learned Magistrate rejected the application on 27-1-1992 on the grounds that the person who was bringing the ornaments should have relevant documents in his possession when the property in question was seized by the police ; the bald statement of the applicant could not be relied upon after three months when the affidavit of the applicant or his agent was not filed in support of the allegations made in the release application ; that the applicant had not produced any evidence in order to establish his ownership and that come proceedings were pending in the Sales Tax Department relating to this very silver as is apparent from the case diary. 3. Being aggrieved by that order of the Magistrate, the applicant went up in revision before the learned Sessions Judge (being Criminal Revision No. 87 of 1992), who dismissed the same on 17-8-1992 on the ground that the applicant could not tile any document in proof of his ownership about the silver, which he allegedly sent for preparation of the ornaments. 4. Heard learned counsel for the applicant and the learned A. G. A. for the State It is not disputed that the applicant alongwith Guru Dutta Tripathi and two others was arrested and the silver ornaments were taken from their possession. The prosecution has not been able to tell the Court as to from where the ornaments were stolen. No charge sheet has yet been filed in court against charge sheet has yet been filed in court against the the applicant or any other accused persons though the seizure was made as far back as 2-11-1991. The learned counsel for the applicant stated that no case is pending and no person other than the applicant has come forward to claim ownership about the seized ornaments. The notice of this application was given to the State on 23-1-19*3 but no counter affidavit refuting the allega tions made in the application and accompanying affidavit has yet been filed. The application before the Magistrate was moved one month after the release of the applicant on bail. During this period the applicant was buy in getting himself and other co-accused bailed out and the car on which they were on board has also been released in his favour. The applicant filed documentary evidence to prove his ownership about the silver ornaments before the Magistrate but either of the courts below has not considered those documents. 5. It is true that in the application itself moved before the Magistrate for release of the property it is mentioned that the Coolie Bill and Form 31 which were left by the Agent of the applicant at the shop of M/s. K. V. N. Payala, Tamil Nadu by sheer mistake, were subsequently sent by that firm to the applicant through registered post and the applicant had appended those documents as enclosures to his application moved for release of the goods. The charge sheet has not yet been submitted by the police against the appli cant or any other co-accused though a period of less than 19 months has expired. No person other than applicant has come forward to stake his claim as owner of the seized property. The retention of silver ornaments taken into custody in the expectation that some real owner will be exposed in future is no ground for refusing the release in favour of the applicant, if he proves his ownership. From the allegations made in the application and also from the orders passed by the courts below it appears that the evidence of the applicant regarding his title has not been considered by either of the courts below. 1 think it proper that an opportunity of afforded to the applicant to prove his entitlement to the properties in question in the light of the documents, annexed with the release application, and other evidence if led, to prove his title. 6. Accordingly the application under Section 482 Cr. P. C. is allowed. The orders dated 27-1-1992 and 17- 8-1992 passed by VIII A. C. J. M. and the Sessions Judge, Allahabad, respectively, are set aside and the learned Magistrate concerned is directed to release the property in question in your of the applicant on furnishing adequate security provided he primafacte estab lishes his entitlement to the property in question. Application allowed. .