The investigating agency cannot retain documents seized during investigation if they are not relied upon in the trial, and potential pecuniary loss to a third party does not justify the retention of such documents.

1. An important issue which arises of consideration in the present petition is whether documents seized by the police during investigation and not relied upon with the charge sheet can be retained by the investigating agency and not returned to the accused or the person authorized to retain those documents.

2. A brief exposition of facts. RC Nos.0049(A)2003 DLI and 0050(A)2003-DLI (in short ‘49A/2003’ and ‘50A/2003’ respectively) were registered by the CBI against Vijay Kumar Manchanda, D.N. Upadhyay and others. On 11th September, 2003 documents were seized from the residence of D.N. Upadhyay vide seizure memo dated 11th September, 2003 and retained by the prosecution. In the two charge sheets, not even the seizure memo by which the documents were seized was relied upon what to say about the seized documents.

3. Vide judgment dated 30th April, 2016 D.N. Upadhyay has been acquitted in RC No.49A/2003 however trial is pending in RC No.50A/2003. In R.C. No.50A/2003 D.N. Upadhyay filed an application for return of documents seized as they were not filed in the Court however on the statement of learned Spl. PP the CBI that the documents were required in the case as bank had suffered pecuniary loss despite no FIR has been lodged on that count, the application of D.N. Upadhyay was dismissed on 28th September, 2010. During trial, the CBI concluded its evidence in RC No.50A/2003 in 2015 thus D.N. Upadhyay filed a second application for return of documents on 20th May, 2016. However, again a reply was filed that the documents were still required. D.N. Upadhyay filed yet another application for release of unrelied documents wherein the CBI filed a reply that documents release of which was sought by D.N. Upadhyay in RC 49A/2003 may not be released and the order be kept in abeyance till disposal of RC No.50A/2003.

4. Vide the impugned order dated 9th June, 2016, the application of the petitioner was dismissed for the reason that earlier also similar application were dismissed on 28th September, 2010 and since trial in RC 50A/2003 was pending, there was no ground to release the documents including FDR/NSC.

5. When the matter came up before this Court on 6th December, 2016, this Court passed the following order:-

“The issue raised by the petitioner is whether the CBI can continue to retain documents seized during a search though the same are not relied upon in the course of the trial for the purposes of prosecution evidence. Learned counsel for the petitioner submits that two FIRs were registered against the petitioner being RC No.0049(A)2003 DLI and RC No.0050(A)2003 DLI under Sections 120B, 420, 467, 468, 471 IPC and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (in short the PC Act). The petitioner has already been acquitted in RC No.0049.

On an application filed by the petitioner after acquittal, the learned Trial Court directed that the FDR/NSCs recovered during search be returned to the petitioner. However, when the petitioner filed an application before the CBI for return of the documents the same was denied on the ground that the documents were also recovered in RC No.0050/2003 wherein trial was still pending.

On a query raised to the learned Special PP for the CBI as to which of the documents from the seizure memo dated 11th September, 2003 in the two RCs noted above have been relied upon by the prosecution in trial of RC No.0050/2003, learned Special PP fairly submits that even the seizure memo has not been relied upon by the prosecution in the two chargesheets.

This Court sought a reply from the learned Spl. PP for the CBI bringing to his attention Clauses 13.31 and 14.21 of the CBI Criminal Manual wherein it is mandated that the seized/requisitioned documents and records should be scrutinized promptly and necessary action should be taken to return the documents and records which are not concerned with the case under enquiry/investigation and necessary orders taken from the Court in regard to their custody an