The court may grant interim custody of seized property based on prima facie evidence of ownership while disputes regarding final ownership remain unresolved.

JUDGMENT :

PRAKASH D. NAIK, J.

1. The applicant is aggrieved by order dated 10th December 2019 and 19th December 2019 passed by Sessions Court in Sessions Case No.169 of 2019.

2. The applicant is the owner of jewellery shop at Subhas Nagar, Rebello Compound, MIDC, Andheri (East), Mumbai. The respondent no.1 was working in the said shop. Another person Indersingh Rajput was also working in said shop. The applicant went to his native place on 28th April 2018. Keys of the shop were handed over to respondent no.1. Various gold ornaments were lying in the shop. On 4th May 2018, the applicant received a call that there is robbery in his shop. The ornaments from shop were taken away. The applicant returned to Mumbai. Respondent no.1 had lodged the FIR against unknown persons on 5th May 2018 u/s.394, 328, 34 of IPC. During the course of investigation involvement of respondents was disclosed. Respondent nos.1 to 4 were arrested. Gold ornaments were recovered

3. The applicant preferred application u/s.457 of Cr.P.C. for return of property viz gold ornaments of 7 kilogram and 94.500 miligram valued approximately at Rs.1,84,45,700/- seized in crime no.210 of 2018 registered with MIDC Police Station before the Court of Additional Chief Metropolitan Magistrate, 22nd Court, Andheri, Mumbai. The applicant contended that he is the owner of ornaments seized by police. The respondent nos.1 to 3 filed say and opposed the application contending that some persons had mortgaged jewelleries with them and the gold ornaments belonging to them were seized by police. The learned Magistrate vide order dated 6th June 2019 observed that the record of the case has been sent to Sessions Court at the time of committal. In the absence of final report it is difficult to decide interim custody of ornaments.

4. Applicant preferred another application vide Exhibit-3 for return of property i.e. gold ornaments of 7.094 kgs before Sessions Court. Prosecution and accused no.2 filed say. Prosecution gave no objection for release of articles on conditions. Vide order dated 14th October 2019 the Court directed that the persons named Pankaj Mahaveer, Vanechand Jain, Bharatkumar Jain, Rameshkumar Acharya and Prakash Badana’s say are necessary from whose possession some of the golden ornaments in the form of fine gold are seized. Accordingly Bharatkumar Jain and Rakesh Kumar Acharya filed affidavit that they have no objection to release the said gold in favour of the applicant and they will not claim the same in future. Vide order dated 10th December 2019 it was observed that say of the prosecution reveal that from shop owned by Bharat Kumar Jain 200 gms biscuits of gold and from Rakesh Kumar Acharya 200 gms two biscuits of gold were recovered. In view of no objection of prosecution and affidavit of Bharatkumar Jain and Rakesh Kumar Acharya, the aforesaid articles can be released. The Court released 200 gms each gold fine biscuits recovered from Bharat Kumar Jain and Rakesh Kumar Acharya to be returned to applicant on bond on usual conditions. The application was kept pending.

5. The applicant’s application Exhibit-3 for return of property before Sessions Court for return of gold ornaments of 7.094 kg was heard again. Accused no.3 Sohanlal Lohar filed application for releasing 2300 gms gold jewellery. The prosecution had filed say to the application submitted by applicant and gave no objection to release the ornaments to applicant. However, prosecution raised objection to application of Sohanlal Lohar. The learned Sessions Judge vide order dated 19th December 2019 observed that originally report was lodged by Kamlesh Lohar alleging robbery of gold ornaments worth Rs.8,28,000/- and cash of Rs.45,000/-. Later on Devilal Lohar (applicant)