PREM CHANDRA DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner Prema Das along with others faced trial Under Section 10 of the west Bengal Gambling Act and Sec, 9 of the West Bengal Maintenance of Public Order Act in Sessions Trial No. 3 of June, 1978 before - the 5th Court of Additional Sessions Judge at Alipore. In connection with the same, some jewelleries, ornaments and other articles were seized by the police and were produced at the time of trial. When the prayer for return of the jewelleries came up for consideration at the conclusion of the trial, the learned Sessions Judge, instead of himself making an order under Sub -section (1) of Section 452 Cr. P. C, ordered in exercise of his power under Sub -section (3) by order dated 14 -1 -79 delivery of the seized properties to Chief Judicial Magistrate, 24 -Parganas at Alipore, The learned C. J. M. by his order dated 4 -8 -1979 ordered confiscation of the seized articles to the State. Aggrieved with the said order Prema Das has come up in revision and on his behalf the propriety and legality of the order are challenged seriously.

(2.) FROM a perusal of the order it appears that the learned C. J. M. found that the petitioner in his petitions did not claim ownership of the articles in question. He was doubtful if the petitioner was owner of the properties or his deceased uncle was the owner of those properties. There is again some doubt if the properties were seized from the possession of the petitioner. Apart from that the learned C. J. M. found that Sees. 457, 458 and 459 of the Cr. P. C. referred to in Section 452(3) under which question of return was being considered had no application to the facts and circumstances of the case. After ordering confiscation of the seized articles the learned C. J. M. further ordered that records together with copy of the order passed by him be forwarded to the learned Additional Sessions Judge, 5th Court for information and necessary action.

(3.) AFTER the C. J. M. has received delivery of the property or if the court holding the trial proceeds to exercise powers Under Section 452(2) itself, a decision will have to be taken first whether the property will be disposed of or its delivery should be given to any person. If for cogent reasons the court considers disposal of the property to be expedient that may be done either by destruction or by confiscation, depending on the nature of property, social safety etc. If disposal of property is not considered expedient, question of its delivery to proper person should engage the attention of the Court of C. J. M. If such a person is known and is ascertained, Section 457(2) contemplates an order for delivery of the property to him. If on the other hand such a person cannot be ascertained the court is to detain the property and to issue a proclamation specifying the articles of which such property consists requiring any person who may have a claim thereto to appear before him and establish his claim before six months from the date of such proclamation. If no person makes a claim to the property within the period noted above the Court of C. J. M. may direct that the property shall be at the disposal of the State Government and may be sold by the Government and the proceeds of the sale shall be dealt with in such manner as may be prescribed in accordance with Section 458 Section 459 contemplates disposal of the sale proceeds of perishable articles in terms of Sections 457 and 458 that is to say the claimants will have to establish his rights to the property before claiming the sale proceeds. From the scheme of the Sections as aforesaid it will be clear that confiscation of the property is not ordinary rule rather delivery of the same to proper person is desirable. The C. J. M. does not appear to have proceeded in the above fashion. The order of the C. J. M. is, therefore set aside, and the Civil (Criminal) Application is accordingly allowed on contest. The records be sent down to the Court of C. J. M., Alipore, with direction to proceed as indicated above.