SUBHASH CHANDRA SONI Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner feeling aggrieved with the order dated 15.1.2009 passed by the Sessions Judge, Gonda has preferred this petition. THE facts giving rise to the present petition are that an F.I.R. was lodged under Section 392 I.P.C. in regard to a loot alleged to have been committed on 19.10.2008 when the petitioner was gong to open his shop. THEreafter, the miscreants were arrested and looted property was recovered by the police. THE petitioner has given a detail of the looted articles including the currency notes, which according to him belong to the customers. On 23.10.2008 the petitioner moved an application for release of the looted articles and currency notes before the Chief Judicial Magistrate, Gonda, on which the police has also submitted a report on 25.10.2008 that the articles be released in favour of the petitioner, but the Chief Judicial Magistrate vide order dated 17.11.2008 rejected the application of the petitioner. Feeling aggrieved with the aforesaid order, the petitioner preferred a revision, which was allowed by means of order dated 12.12.2008. In pursuance to the revisional court's order dated 12.12.2008, the Chief Judicial Magistrate ordered for release of the ornaments including the currency notes in favour of the petitioner with certain conditions vide order dated 7.1.2009. Against the order dated 7.1.2009 the petitioner preferred an application under Section 440(2) Cr.P.C. before the Sessions Judge and the Sessions Judge vide order dated 15.1.2009 partially modified the order dated 7.1.2009 passed by the Chief Judicial Magistrate. Hence this petition. Submission of learned counsel for the petitioner is that notes recovered from the accused persons belong to the customers and there is no other claimant to claim the ownership of the said notes. He further submits that a detail panchanama of the recovery of the notes has been prepared in which the numbers of the notes have been mentioned and so the same is sufficient for proving the recovery and the production of the notes will not be required for the said purpose. He also submits that the law in regard to release of the currency notes has been settled by the apex court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, 2003 (46) ACC 223 and hence the trial will not be affected in any manner and the notes may be returned to the petitioner. Learned A.G.A. on the other hand has submitted that there is no illegality in the order passed by the revisional court and the notes being the case property the same cannot be released in favour of the petitioners. I have heard learned counsel for the parties and gone through the record. In the case of Imtiaz Ahmad and another vs. State of U.P. and others, 1994 (1) Crimes 242 this Court held as under: "8. THE learned Standing Counsel has submitted that the currency notes being case property cannot be released unless the trial is over. THE submission of the learned Standing Counsel cannot be accepted. Article 300A of the Constitution states:- "No person shall be deprived of his property save by authority of law." Article 300A is a protective provision which operates as a safe guard against any arbitrary invasion of the property rights. THE rights to property consists of a bundle of rights such as ownership, possession, use and enjoyment of property and so on. Thus the provisions of Sections 451 and 457 of the Code of Criminal Procedure will have to be interpreted in the light of the Constitutionally enacted Right to Property under Article 300A. If the submission of the learned Standing Counsel that property in respect of which any crime has been committed must in all cases be detained in court custody or police custody without examining the purpose of such detention was to be accepted then perhaps the above mentioned provisions of the Code may have to be struck down being violative of Article 14 of the Constitution on the ground that the said provisions spell arbitrariness. However, the provisions of the Code are to construed in a reasonable and fair manner. THE detention of property in the custody of the court or the police is a matter which has always to be viewed in the prospective of lis. If the property is indissolubly linked with the lis or any part of the claim then alone the court may detain the property in custody of the court. 9. Whenever the court is countenanced with the question of release of the property involved in a case during the pendency of the trial or other proceedings a serious thought has to be given whether actual production of the property before the court will have any bearing on the decision of the case. In most cases the production of the property at the time of the trial may not at all be necessary. In the present case there is no other claimant of the currency notes in question and the release of these currency notes is not going to affect the trial in one way or the other." While dealing with the similar situation this Court in the case of Sunil Kumar Verma vs. State of U.P. 1994 (2) Crimes 276 held as under: "4.Since there is no other claimant of this money a balance has to be struck preserving the interest of the prosecution and of the applicant. It is, therefore, desirable that the first and the last currency notes of each the bundles alongwith the chits pasted on it be preserved in court and returned during the pendency of th trial. THE rest of the currency notes can be returned to the applicant on furnishing security by way of bank guarantee." In the case of Sunderbhai Ambalal Desai (supra) the apex court held as under: "8. With regard to valuable articles, such as, golden or silver ornaments or articles 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. 9. Fro this purpose, 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:- (1)preparing detailed proper panchnama of such articles; (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. 10.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. 11.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 the bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchanama to keep such articles in a bank locker. In any case, such articles should be produced before 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 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." In the present case, it is evident that F.I.R. under Section 392 I.P.C. was lodged at crime No.489 of 2008. THE petitioner happens to be the complainant and the victim of the loot. THE looted articles and currency notes as alleged by the petitioner belong to him and customers and, therefore, he is suffering a lot on account of the fact that he is answerable to his customers and his business will also be affected. THEre is no other claimant in regard to the currency notes. THE question which falls for consideration is as to whether the ornaments and the currency notes recovered from the possession of the accused persons require production during the course of the trial or the panchanama, photographs and the documents prepared will be sufficient to prove the recovery. In this regard, the apex court in the case of Sunderbhai Ambalal Desai (supra) in para 6 of the judgment opined as under: "6. 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;