2011(1) Crimes 207 (Bom,)
SHORT NOTE
BOMBAY HIGH COURT
A.P. Bhangale, J.
Sankapaka Laxman Bhoomaiah
@ Babu —Appellant
versus
Intelligence Officer, Narcotic Control
Bureau Bombay —Respondent
Criminal Appeal No. 589 of 1995
Decided on 29.11.2010

IMPORTANT POINT
An order is required to be passed to restore the property to possession of the person who may be best entitled to its possession unless for reasons recorded otherwise the trial court may decide to confiscate or forfeit the property, as the case may be, if it is satisfied that the said property is used in commission of offence.

Headnote:Criminal Procedure Code, 1973—Section 452—Trial Court on passing judgment of acquittal against appellant of offence under Section 8(c) read with Section 21 of NDPS Act directed the destruction of muddemal property and cash amount of Rs. 10,000/- (US dollar 1000) and amount under three fixed deposits to be forfeited to State—Appeal—Record showed that no inquiry was made regarding disposal of said property—Panchnama showed that aforesaid property was recovered from possession of appellant—In absence of any evidence to contrary, as a general rule, property could be returned to person from whom it was seized on conclusion of trial unless for reasons the Trial Court decides to confiscate or forfeit the property—Proceedings needed to be remanded back.

       Held: In view of Section 452 of Cr.P.C., the trial Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof, or otherwise of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which may have been used for the commission of any offence. What is necessary is, an inquiry, independent or in the course of trial, so as to pass a final order at the conclusion of the trial, regarding delivery of any property to any person claiming to be entitled to the possession thereof with or without condition as to bond or surety to the satisfaction of the court, requiring the executant to restore such property if such order is modified or set aside any appeal or revision.

       In the present case, after going through the impugned judgment it does not appear that any inquiry was made regarding disposal of the aforesaid property. It is true that no elaborate inquiry or examination of witnesses is necessary, but court has to look into evidence already before it in the course of the trial with relevant circumstances on record. Separate notice may not be required to be served on the accused or the prosecution, if order is passed simultaneously in the judgment of the criminal case, however, the record must show that some inquiry was made which may be in summary manner regarding right to possession of the property. In this case, it appears that the panchnama dated 12.12.1988 does show that the aforesaid property was recovered from possession of the appellant. In the absence of any evidence to the contrary, as a general rule, property may be returned to the person from whom it was seized at the conclusion of the trial in view of section 452 of Cr.P.C. In other words, the property is required to be returned to the persons who is the best entitled to possession of the seized property. Some inquiry proceeding undertaken must be reflected from the record as an order is required to be passed to restore the property to possession of the person who may be best entitled to its possession unless for reasons recorded otherwise the trial court may decide to confiscate or forfeit the property, as the case may be, if it is satisfied that the said property is used in commission of offence.

       For all these reasons, the appeal is required to be allowed in the following terms:

        (a) The proceedings are remanded back to learned trial Judge (Special Judge, N.D.P.S. Court for Greater Bombay) so as to hold an inquiry in respect of right to possession of the property described as cash amount of Rs. 10,000/-(3) eight fixed deposit receipts (4) bank pass book of A/c No.3080. The trial Court shall decide the question after giving opportunity of hearing to the appellant as well as Respondent No.1 and then pass an appropriate order in accordance with law in view of section 452 of Cr.P.C. (Paras 8 to 10)