IMPORTANT POINT
Release of seized property during investigation – At investigation stage, seized articles cannot be released by Court under Section 451 Cr.P.C. – However, under Section 457 of Cr.P.C., Criminal Court has jurisdiction to give custody of seized property/articles at the stage of investigation, when those seized property are not produced before Court.

JUDGMENT AND ORDER (CAV)

M. Zothankhuma, J.—Heard Mr. P.N. Goswami, learned Additional Advocate General for the State. Also heard Mr. Z. Kamar, learned Senior Counsel assisted by Mr. N.H. Barbhuiya, learned counsel for the respondent in Crl. Pet. No. 505/2022 and Cr. Pet. No. 517/2022; Mr. P.J. Saikia, learned Senior Counsel assisted by Mr. A.K. Gupta, learned counsel for the respondent in Crl. Pet. No. 356/2022 and Crl. Pet. No. 358/2022; Mr. M. Biswas, learned counsel for the respondent in Crl. Pet. No. 284/2022; Mr. A. Sarma, learned counsel for the respondent in Crl. Pet. No. 641/2022 and Mr. A. Duarah, learned counsel for the respondent in Crl. Pet. No. 642/2022.

2. This batch of petitions has been referred to by a Single Bench of this Court to decide the question “whether pending investigation, seized articles can be released by the Court, by exercising the jurisdiction, either under Section 451, or under Section 457 of the Cr.P.C.”

3. Mr. P N Goswami, learned Addl. Advocate General submits that a Court cannot release seized articles under Section 451, 457 or 102 Cr.P.C during the stage of investigation, unless and until the case reaches the stage of enquiry or trial. He also submits that Section 102 Cr.P.C provides power to the Police Officer, to give custody of any seized property to any person and the said provision does not give any power to the Court to give custody of such property to any person during the investigation stage.

4. The learned Addl. Advocate General submits that the orders passed by this Court in the case of; (1) The State of Assam & Anr. vs. Nur Uddin Daskar, Crl. Pet. No. 368/2022. (2) The State of Assam & Anr. vs. Lalhruaizela, Crl. Pet. No. 597/2022 (3.) Rafikul Islam vs. State of Assam, Crl. Rev. Pet. No. 16/2022 have clearly held that the definition of the words “Inquiry” provided under Section 2(g) Cr.P.C and the definition of “Investigation” as provided under Section 2(h) Cr.P.C shows that an inquiry is not an investigation. Further, as “trial” does not encompass investigation, the power to release seized property under Section 451 Cr.P.C cannot be exercised by a criminal Court at the time of investigation.

5. The learned Addl. Advocate General has also submitted that though the wording of Section 451 Cr.P.C and 457 Cr.P.C are similar, the difference is that the seized property is produced before the criminal Court during an inquiry or trial under Section 451 Cr.P.C, while there is no production of the seized property before a criminal Court during an enquiry or trial under Section 457 Cr.P.C, though the seizure of the property by the Police during investigation is reported to the Magistrate under Section 457 Cr.P.C. He submits that as the criminal Court does not have the power to release custody of property under Section 451 Cr.P.C unless the case reaches the stage of inquiry or trial, the same yardstick would apply to release of seized property under Section 457 Cr.P.C.

Nevada Properties Pvt. Ltd. vs. State of Maharashtra & Anr ., (2019) 20 SCC 119He submits that in the case of Nevada Properties Pvt. Ltd. vs. State of Maharashtra & Anr ., (2019) 20 SCC 119, the Supreme Court has held that while Section 451 Cr.P.C empowers the criminal Court to pass an order of custody of any property during an inquiry or trial, Section 457 Cr.P.C applies to properties which have been seized by the police officer during investigation, but not produced during inquiry or trial.

He also submits that the learned Single Judge of this Court in the case of Sunil Gogoi vs. State of Assam, reported in 2002 (3) GLR 572, fell into error when it held that Section 457 Cr.P.C. gets attracted when trial has not yet started. He submits that in terms of the judgment of the learned Single Judge in Sunil Gogoi (supra), the Court can give custody or dispose of seized property even at the investigation stage, which is not in consonance with the provisions of Section 457 Cr.P.C.

The learned Additional Advocate General ha