( 1 ) HEARD Shri D. N. Vakil, learned counsel appearing on behalf of H. L. Patel advocates for the appellant and Shri A. J. Desai, learned Additional Public Prosecutor, appearing on behalf of the respondent-State.

( 2 ) THE present appeal is against the judgment and order of rejection of the Misc. Criminal Application No. 383 of 1996, claiming muddamal articles after conclusion of the trial in Sessions Case No. 97 of 1994. The said Sessions Case has been disposed of by the Sessions Court on 28th July, 1995. The learned trial Judge vide impugned order rejected the request to return the valuable muddamal recovered during the course of investigation of crime registered with khanpur Police Station vide C. R. No. I-12 of 1993 for the offences punishable under sections 395, 397, etc. of the Indian Penal code. The backbone of the submissions of shri Vakil is that the main accused who were tried by the Court of Sessions had not claimed, however, so far as the gold and silver ingots are concerned. The orig. accused nos. 3 and 4 from whom the muddamal ingots were recovered by the police had claimed that the same may be handed over to them.

( 3 ) IT is not a matter of dispute that some of the accused at present are even absconding and the learned Sessions Judge while rejecting the application has observed that there is ample scope of arrest and filing of the supplementary chargesheet against the absconding accused persons and at that time, the Court may need muddamal for effective proceedings without any hurdle. The resistance of Shri A. J. Desai, learned additional Public Prosecutor, is that the hand over of muddamal to the applicant herein is likely to prejudice the trial which may commence in the event of arrest of absconding accused.

( 4 ) I have considered various contentions placed before me. It is not a matter of dispute that nobody has claimed the muddamal currency notes of Rs. 20,000/-and one of the articles is an ornament popularly known as mangalsutra . This ornament is being preserved and used with utmost sensitivity by a married woman and it is considered to be a symbol of existence of husband of a woman. There is no question that the muddamal article mangalsutra belongs to the complainant and till date of disposal of the Sessions trial, nobody had claimed that article. There is no question of identity of the muddamal currency notes. It is true that the muddamal currency notes are not perishable and they can be preserved by the Court. However, considering the facts of recovery of this muddamal currency notes, it was possible for the learned Sessions judge after conclusion of the trial and that too, one year thereafter, to hand over immediately two articles namely currency notes of Rs. 20,000/- and mangalsutra to the applicant. It appears that this application remained pending for about 10 years. It is strange that such a miscellaneous proceeding remained pending for the reasons best known to the administration of the District panchmahal at Godhra for 10 years. It is not even observed that in this period of 10 years, the police had even attempted to arrest the absconding accused or they have been arrested and the police is likely to file supplementary chargesheet against them. So keeping this totality in mind and its impact and keeping the rival claim of two accused persons, the finding of the learned Sessions judge is absolutely in accordance with law so far as the gold and silver ingots are concerned. The learned trial Judge was legally entitled and was otherwise able to exercise discretion in favour of the applicant for other two articles claimed by the applicant i. e. currency notes of Rs. 20,000/-and mangalsutra by imposing stringent conditions as if the muddamal is being handed over to the applicant in exercise of powers vested with the Court under Section 451 read with Section 452 of the Code of criminal Procedure, 1973, When there is no question of identity of the muddamal currency notes, as emerging fr