Gajendran vs State

K.N. Basha, J.—The learned Counsel for the Petitioner submits that the Petitioner has come forward with this petition, seeking for the relief

of setting aside the order dated 20.10.2008 in Crl.M.P. No. Unnumbered of 2008 passed by the learned Judicial Magistrate, Vadipatti, Madurai

District and direct the Respondent to return of the vehicle Mini van bearing Registration No. TN 57-M-5109 said to have been seized by the

Respondent police.

It is seen that the Petitioner has been implicated in this case as A-4 for the alleged offence under Sections 6 (4) of T.N.S.C.(RDCS) Order

1982 read with 7(1) (a) (ii) of the E.C. Act, on the allegation of transport of 60 bags of 50 kg each PDS rice. It is the further case of the

prosecution that the vehicle owned by the Petitioner, namely, Mini van bearing Registration No. TN 57-M-5109 has been seized by the

Respondent police on 14.08.2008 at about 8 a.m. at Vadipatti, Dindigul Road, after the Respondent police intercepted the said vehicle. It is seen

that the vehicle was seized along with 60 bags of PDS rice. Thereafter, it is the version of the Petitioner that the Petitioner filed a petition u/s 451 of

Code of Criminal Procedure before the learned Judicial Magistrate, Vadipatti, seeking for the relief of return of his vehicle, Mini van bearing

Registration No. TN 57-M-5109 and the learned Magistrate returned the petition by making the docket order dated 20.10.2008 on the ground

that the property not yet remanded in this case.

Mr. K. Jeganathan, the learned Counsel appearing for the Petitioner vehemently contended that the learned Magistrate ought not to have

returned the petition and the impugned docket order to the effect that the petition returned on the ground of property not yet remanded in this case

is untenable in law and against the principles and guidelines stipulated by the Hon''ble Supreme Court. The learned Counsel for the Petitioner in

support of his contention strongly placed reliance on the decision of the Hon''ble Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat

With SLP (Crl.) No. 2755 of 2002, C.M. Mudaliar v. State of Gujarat case, reported in 2003 SCC (Cri) 1943.

It is contended by the learned Counsel for the Petitioner that the Hon''ble Supreme Court further clarified in the subsequent decision in

Sunderbhai Ambalal Desai case reported in 2003 SCC (Cri) 1440 in respect of the very same case clarified to the effect that there may not be any

necessity for producing the vehicle before the court for entertaining the petition for return of the vehicle. Therefore, it is contended that the

impugned order of returning the petition filed by the Petitioner for return of the vehicle is liable to be set aside and the learned Magistrate may be

directed to consider the petition in accordance with law and as per the guidelines stipulated by the Hon''ble Supreme Court in the decision in

Sunderbhai Ambalal Desai case, reported in 2003 SCC (Cri) 1943 and further clarified in the subsequent decision in Sunderbhai Ambalal Desai

case reported in 2003 SCC (Cri) 1440 .

The learned Government Advocate on the other hand submitted that the Petitioner has been implicated as one of the accused as A-4 in this case

for the alleged transport of PDS rice bags in his vehicle, Mini van bearing Registration No. TN 57-M-5109. It is submitted that the said vehicle

was intercepted by the Respondent police on 14.08.2008 and the Respondent police sezied the vehicle along with 60 bags of PDS rice. It is

submitted that thereafter the Respondent police sent intimation to the District Collector in respect of the seziure of the vehicle of the Petitioner. The

learned Government Advocate would further submitted that as on date the vehicle of the Petitioner, namely, Mini van bearing Registration No. TN

57-M-5109 is in the custody of the Respondent police.

I have carefully considered the rival contentions put forward by either side and also perused the materials available on record including the

docket order passed by the learned Magistrate, returning the petition filed by the Petitioner for seeking the relief of return of his vehicle said to have

been seized by the Respondent police.

A perusal of the impugned docket order of the learned Magistrate reads hereunder:

Retd

Property not yet remanded in this case. Hence returned.

Signature

20.10.2008

It is pertinent to be noted that the Respondent police has not disputed about the seziure of the vehicle of the Petitioner, namely, Mini van as

stated above and as on date, admittedly the vehicle is in the custody of the Respondent police.

It is seen that the Respondent police has not produced the vehicle before the learned Magistrate but on the other hand sent intimation to the

District Collector in respect of the seziure of the vehicle and also in respect of keeping the vehicle in his custody. This Court is of the considered

view that in view of the above said admitted facts, the learned Magistrate ought not to have returned the petition merely on the ground that the

vehicle was not yet produced before the Court. The learned Magistrate ought to have ascertained the actual state of affairs from the Respondent

police. This Court is constrained to state that the impugned docket order of the learned Magistrate is clearly in contravention of the guidelines and

principles laid down by the Hon''ble Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat With SLP (Crl.) No. 2755 of 2002 C.M.

Mudaliar v. State of Gujarat case, reported in 2003 SCC (Cri) 1943 and thereafter clarified by the subsequent decision in respect of the very

same case, namely, Sunderbhai Ambalal Desai case reported in 2003 SCC (Cri) 1440.

This Court is constrained to incorporate the relevant guidelines and principles laid down by the Hon''ble Apex Court in the decision cited

Supra, namely, in Sunderbhai Ambalal Desai case reported in 2003 SCC (Cri) 1943. The Hon''ble Apex Court has held:

The powers u/s 451 Code of Criminal Procedure should be exercised expeditiously and judiciously. It would serve various purposes, namely:

owner of the article would not suffer because of its remaining unused or by its misappropriation;

court or the police would not be required to keep the article in safe custody;

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

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.

B. K. Patil v. State of Mysore, 1977 CriLJ 1141 , relied on

Valuable articles and currency notes

Valuable articles such as golden or silver ornaments or articles studded with pre cious stones, need not be kept in police custody for years till trial

is over. The Magistrate should pass appropriate orders as contemplated u/s 451 Code of Criminal Procedure at the earliest. For 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.

For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided u/s 451 Code of Criminal

Procedure 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 u/s 451 Code of Criminal Procedure to impose any other appropriate condition.

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 bank lockers, Similarly, if articles are required to be kept in police custody, it would be open

to the SHO after preparing proper panchnama 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 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 purposes of investigation and identification. For currency notes, similar procedure can be followed.

Vehicles

It is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately

by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done

pending hearing of applications for return of such vehicles.

In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered

to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take

possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may

be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said

vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken

and detailed panchnama should be prepared.

Liquor/Narcotic drugs

For articles such as seized liquor alos, prompt action shuold be taken in disposing of them after preparing necessary panchnama. If sample is

required to be taken, the sample may be kept properly after sending it to the Chemical Analyser, if required. But in no case, a large quantity of

liquor should be stored at the police station. No purpose is served by such storing.

Similarly for the narcotic drugs also, for its identification, procedure u/s 451 CrP.C. should be followed of recording evidence and disposal. Its

identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that

subsequently, a contention may not be raised that the article which was seized was not the same.

However these powers are to be exercised by the Magistrate concerned. The Magistrate concerned would take immediate action for seeing that

powers u/s 451 Cr.P.C are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not

more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the High Court concerned in

seeing that the rules framed by the High Court with regard to such articles are implemented properly.

The Hon''ble Apex Court in the subsequent decision in respect of the very same case, namely, in Sunderbhai Ambalal Desai case reported in 2003

SCC (Cri) 1440 further clarified that:

Further, with regard to the vehicle also, it is made clear that there may not be any necessity of producing the vehicle before the court and the

seizure report may be sufficient.

Therefore, in the decision cited Supra, the Hon''ble Apex Court has laid down certain guidelines in respect of return of properties, namely, valuable

articles, currency notes and vehicles. It is emphasised by the Hon''ble Apex Court that the powers u/s 451 Cr.P.C. should be exercised

expeditiously and judiciously.

It is pertinent to be noted that the Hon''ble Apex Court has further held in the decision cited Supra that the production of the vehicle seized

before the Court is not a condition precedent for entertaining the petition for return of the vehicle filed u/s 451 of Code of Criminal Procedure As

far as the instant case is concerned, it is not disputed by the Respondent police about the seizure of the vehicle, namely, Mini van bearing

Registration No. TN 57-M-5109 which belongs to the Petitioner. The undisputed fact remains further that admittedly the said vehicle is now with

the custody of the Respondent police and added to that admittedly the said vehicle was seized for the case registered against the Petitioner and

others for the alleged offence under Sections 6 (4) of T.N.S.C. (RDCS) Order 1982 read with 7(1) (a) (ii) of the E.C. Act.

It is pertinent to be noted that the vehicle of the Petitioner was seized as early as on 14.08.2008 and the vehicle was kept idle in the custody of

the repondent police and also exposed to sun and rain and further there is also reasonable apprehension of missing important parts of the vehicle

and as a result, it is no doubt that the condition of the vehicle would be deteriorated day-by-day and in such event, the Petitioner would be put in

to great hardship and irreparable loss. Therefore, this Court is constrained to set aside the impugned docket order of the learned Judicial

Magistrate, Vadipatti, Madurai District, dated 20.10.2008, returning the petition filed u/s 451 of Code of Criminal Procedure for the return of the

vehicle of the Petitioner, namely, Mini van and consequently direct the learned Magistrate to consider the petition filed by the Petitioner for return

of the vehicle, namely, Mini van bearing Registration No. TN 57-M-5109 seized on 14.08.2008 by the Respondent police and to pass orders on

merits and in accordance with law by following the principles and guidelines stipulated by the Hon''ble Apex Court in the decisions cited supra by

imposing suitable conditions as indicated by the Hon''ble Apex Court and to dispose of the petitions as expeditiously as possible and more

particularly within a period of ten days from the date of receipt of the copy of the order of this Court.

Before parting with this matter, this Court is constrained to state that the learned Magistrates are frequently returning the petition filed u/s 451

of Code of Criminal Procedure on the ground of the vehicle not produced before the Court, ignoring the admitted fact of seizure of the vehicle by

the concerned Respondent police. It is also seen that in number of matters, the guidelines stipulated by the Hon''ble Apex Court in the decisions

cited Supra, have not been taken note by the learned Magistrates concerned. In view of such state of affairs, the affected and aggrieved persons

have been put into great hardship and irreparable loss in a case of theft of gold jewellery or valuable articles and cash and the victims, viz., the

complainants, having already suffered mental torture and agony, have also put into great hardship and irreparable loss on the ground of delay and

rejection of the petition filed u/s 451 Code of Criminal Procedure for return of their articles and cash in spite of the admitted fact that they are the

owners of the properties and such properties including cash were stolen from their premises or from them and in spite of the arrest of the accused

and recovery of the articles and in spite of the fact fact that there is no counter claim, they are not able to get return of the articles and properties. It

is also pertinent to be noted that in respect of the vehicles seized in several cases, the vehicles have been kept in the police custody at the Police

Station exposing to the sun and rain and also missing of important and valuable parts of the vehicle ultimately, resulting in grave miscarriage of

justice to the owners of the vehicles. Therefore, this Court is constrained to state that the learned Magistrates, while dealing with the petition filed

u/s 451 of Code of Criminal Procedure for return of properties, namely, valubale articles, currency notes and the vehicle, should give effect to the

principles and guidelines stipulated by the Hon''ble Apex Court in the decisions cited Supra in its letter and spirit and the learned Magistrates

should strictly follow the principles and guidelines laid down by the Hon''ble Apex Court in the matters of return of properties.