State Of Jammu & Kashmir vs Zaffar Iqbal

State has filed the present petition for quashing of order dated 28.05.2018, by virtue of which Principal Sessions Judge, Poonch has directed the petitioner to deposit an amount of Rs.14,500/- within a period of one week.

In the petition, it has been stated that the petitioner is a high ranking Government official and holding post of Sr. Superintendent of Police at District Poonch, as such is entitled to all the fundamental, legal and statutory rights as envisaged under law. It is further stated that an FIR No.43 of 2011 was registered against the respondent at Police Station Mendhar as fake currency to the tune of Rs.30,500/- was recovered from his possession. During the investitation, Rs.14,500/- was also recovered from him. Subsequently, challan was produced and after conducting trial he was acquitted by the learned Principal Sessons Judge, Poonch on 28.09.2017 and now the respondent wants to receive an amount of Rs. 14,500/- which was seized by the police from his possession. It is stated that the seized amount has been stolen from Malkhana of court for which FIR No.31/2015 has been registered and this report has been submitted by Incharge, Malkhana Sessions Court Poonch. Further stated that the seized amount was also stolen from the Malkhana of learned Principal Sessions Judge, Poonch and in this regard an FIR No.31/2015 was registered at Police Station, Poonch and subsequently, an application for the release of Rs.14,500/- was filed by the complainant before the learned Principal Sessions Judge, Poonch in which the objections were filed by the petitioner through Public Prosecutor, Poonch, in which the ground was taken that as the seized amount has been stolen from Malkhana, therefore, the petitioner is not at all responsible for the release of amount. It is pertinent to mention here that the Malkhana is in the custody of the learned Principal Sessions Judge, Poonch and the petitioner's department has no role or control over the articles in the Malkhana.

It is stated that the learned Principal Sessions Judge, Poonch vide its order dated 28.05.2018 has directed the Prosecution to deposit an amount of Rs.14,500/- which has been stolen from the Malkhana, with the Nazir of this Court within a period of one week.

I have considered the submissions made by learned counsel for the State as well as learned counsel for the respondent.

The relevant para of the order impugned reads as under:-

"Application is pending since 12.01.2018 and petitioner counsel seeks the release of the amount on the ground that he is a poor person and he has been acquitted by this court in the month of September 2017. I have called the file from the record and perused the same, there was an allegation against the accused that on 28-03-2011 while he has deposited Rs. 20,000/- in the J&K Bank and handed over to the cashier out of which 11 notes of 500 were found fake and he was handed over to the police and police registered the case and apprehended the accused and at his instance Rs. 30,500/- has been also recovered from his possession. Petitioner has faced the trial of the case and finally he has been acquitted for the charge leveled against him. As the prosecution has miserably failed to connect the accused no. 1 with the commission of the charge levelled against him. One thing has come clear that Rs. 14,500/- Indian currency has been recovered by police which belongs to him. Now, he has claimed the same amount from the police. Ld. P.P has shown no objection if it is released in favour of the applicant. Now, if any theft has been committed in the Malkhana it is not a fault of the applicant, it is the duty cost upon the State to protect life and property of public. Police has not made any effort to round up the accused and to recover stolen money up till now. I think, it is failure on the part of police but they are duty bound to pay the recovered amount to the petitioner as it is hard earned money of the petitioner. Hence, keeping all these facts and no objections from P.P an amount of Rs. 14,500/- is hereby released in favour of the petitioner.  Ld. P.P has sought time to hand over the amount to the petitioner, despite, so many opportunities he was unable to deposit the amount. Ld. Counsel has moved an application for attaching the account head of the S.SP. Ld. P.P again sought time to file the objections but failed. Hence, this court has given lot of time to deposit the amount that could be released in favour of petitioner, as such it is appropriate to direct Branch Manager J&K Bank Poonch to deduct an amount of Rs. 14,500/- from the official account of S.SP who is the head of the District Police and remit the same in this court by or before second of June."

In Basava Kom Dyamogouda Patil v. State of Mysore & another, (1977) 4 SCC 358, the Supreme Court dealt with a case in which the recovered ornaments kept in a trunk in the police station were found missing and the owner of the property sought indemnification. The question arose with regard to payment of those articles. In that context, the Court observed as under: -

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance.

Coming now to the decision of the High Court that the articles in question were never actually produced by the police before the Court, we find that this is factually incorrect. It appears from the finding of the High Court that immediately after the articles were recovered by the police and the police submitted a charge-sheet to the Chief Judicial Magistrate, it produced the articles before the Court, but the Court directed the Sub-Inspector to retain the property until the same is verified and valued by a goldsmith for which the Court moved the higher authorities for sanction of necessary funds. The Sub-Inspector was also directed to bring the goldsmith. In these circumstances, the Sub-Inspector took back the articles and kept them in the Guard Room of the police station. It would thus appear that the articles were actually produced before the Court but were retained by the Sub-Inspector under the directions of the Court. A production before the Court does not mean physical custody or possession by the Court but includes even control exercised by the Court by passing an order regarding the custody of the articles. In the instant case when once the Magistrate, after having been informed that the articles were produced before the Court, directed the Sub-Inspector to keep them with him in safe custody, to get them verified and valued by a goldsmith, th articles were undoubtedly produced before the Court and became custodia legis.

It is common ground that these articles belonged to the complainant/appellant and had been stolen from her house. It is, therefore, clear that the articles were the subject-matter of an offence. This fact, therefore, is sufficient to clothe the Magistrate with the power to pass an order for return of the property. Where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. We do not agree with the view of the High Court that once the articles are not available with the Court, the Court has no power to do anything in the matter and is utterly helpless.

In the instant case it is clear that the value of the property stolen is easily ascertainable on the materials on the record and does not admit of any difficulty. It is true that in the complaint Ext. 9 the total value given by the appellant comes to Rs. 13,320/-. But this cannot be a correct criterion because the Court has to calculate the value of only that property which has been recovered from the accused and seized by the police. It may be that some property may not have been recovered at all. The correct principle, therefore, to apply in this case would be to find out if there is any material to show the value of the articles actually seized by the police from the possession of the accused. It would appear from Ext. 1 the charge-sheet that the total value of the articles which were recovered from the five accused comes to Rupees 10,049/-, which may be rounded off to Rs. 10,000/-. Exhibit 34 which is the report lodged by the police regarding the property having been stolen also shows the value of the property kept in the trunk to be Rs. 10,050/-. This will appear from Ext. 34 which gives a detailed and exhaustive list of the articles kept in the trunk and the value thereof. In these circumstances, therefore, it can be safely held that the value of the property recovered form the possession of the five accused and stolen from the house of the complainant was Rs. 10,000/-. It is also clear that in the instant case, no plea had been taken by the State that the property was lost in spite of due care and caution having been taken by it or due to circumstances beyond its control. On the other hand, while all the articles were stolen from the trunk kept in the Guard Room of the police station, except the formality of a report having been lodged, no action seems to have been taken by the State against the Sub-Inspector or the officers who were responsible for the loss of the property, even to this date. In these circumstances, therefore, the State cannot be allowed to successfully resist the application filed by the appellant. The appellate is entitled to receive the cash equivalent of the property lost which has been held by us to be Rs. 10,000/-, and this amount should be paid to the complainant by the State.

The appeal is accordingly allowed, the orders of the High Court as also of the two Courts below are hereby set aside and the State is directed to pay a sum of Rs. 10,000/- to the complainant/appellant. In the circumstances of the case, the appellant shall be entitled to costs throughout from the respondent."

In view of above law, it is apparent that in criminal proceedings during investigation or otherwise if any property is seized; kept in police Malkhana and is stolen, then court in appropriate cases can order payment of value of properties where State or its officers fail to make out defence that they had taken due care and caution to protect the property; Seizure of the property by the police amounts to a clear entrustment of the property to a government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases.

In present case, as is evident from impugned order that Rs.14,500/- of applicant/accused was seized in the case FIR No.43/2011, wherein he was acquitted on 28.09.2017; seized money was kept in Malkhana under the custody of police from where it was stolen and FIR No.31/205 was registered. Even after the application for release of amount was filed, PP stated that he has no objection and sought time for arrangement of funds; but instead has filed present petition. The petitioner has, thus, failed to prove any prima facie defence that the State or its officers had taken due care and caution to protect the property, which was lying in the Malkhana. The law cited by learned counsel for the petitioner is not applicable, because it is pertaining to the civil liability.

In view of above law, I am of the view that, there is no infirimity of law in the impunged order. It is upheld accordingly. This petition is dismissed. Stay, if any, is vacated.