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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
RAJUBHAI CHHOTALAL PATEL - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CRIMINAL APPLICATION NO. 7098 of 2021
Decided On : 25-08-2021
Constitution of India,1950 - Articles 226 and 227 – Criminal Procedure Code,1973 - Sections 438 102 ,(1), (3) and 451 - Direction for grant of bail to person apprehending arrest – Order for custody and disposal of property pending - Petitioner was carrying money which was from his own savings and borrowed from relatives and he had gone for purchasing gold submits that complaint being N.C. Case was registered with PS against three accused who were found in Car with cash amount of between and car and cash were seized under Section 102 Cr.P.C. It was accordingly urged that Court may direct release of muddamal cash in exercise of extra-ordinary jurisdiction under Article 226 of Constitution of India - Whether amount of was deposited in any Bank Account opened by concerned police.
Finding of the Court:
Police has already given opinion and have approved and given consent of handing over cash amount to present petitioner learned Courts below have erred in not handing over cash amount to present petitioners - Power under Section 451 of Cr.P.C. should be exercised expeditiously and judiciously which clearly empowers Court to order for proper custody of articles or property pending conclusion of trial as owner of article would not suffer because of its remaining unused or its misappropriation - Court or police would not be required to keep article in safe custody and if proper panchnama before handing over possession of article is prepared that can be used in evidence instead of its production before Court during trial - Court is of considered opinion that custody of cash if granted in favour of petitioner no prejudice is likely to be caused to prosecution - Court under Article 226 of Constitution to order release of muddamal cash can be exercised at any time whenever Court deems it appropriate still however it was urged that present petition may not be entertained - Apex Court in regard to valuable articles and currency notes held that no useful purpose would be served to keep such articles in police custody for years till trial is over and in such cases, Magistrate should pass appropriate orders as contemplated under Section 451 of the Cr.P.C. at earliest.
Result: Petition allowed
ORDER :
1. Rule. Learned APP waives service of notice of rule on behalf of respondent State. With the consent of learned advocates on both the sides, the matter is heard today finally.
2. This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking relief to release the muddamal cash to the tune of Rs.4,50,000/-, which was seized pursuant to the non-cognizable offence entry dated 20.07.2020, bearing N.C. Case No.64 of 2020 registered with Khokhra Police Station, Ahmedabad City under Section 102 of Code of Criminal procedure, 1973.
3. Referring to the report of the police sub-inspector, Khokhra Police Station, Ahmedabad City, addressed to Additional Chief Metropolitan Magistrate, Court No.13 Gheekanta, Ahmedabad City dated 01.10.2020, Mr. Jaydeep H.Sindhi, learned advocate for the petitioner submits that, the police has no objection if the said amount of Rs.4,50,000/- seized under the provision of Section 102 Cr.P.C., be handed over to the present petitioner.
3.1. Mr. Sindhi, submits that the petitioner was carrying the money, which was from his own savings and borrowed from the relatives, and he had gone for purchasing the gold. Mr. Sindhi submits that the complaint being N.C. Case No.64 of 2020 dated 21.07.2020, was registered with Khokhra Police Station, Ahmedabad City against three accused namely (i) Rajenra @ Raju Avelbhai Patgir (ii) Rajesh Ranabhai Rajaya and (iii) Maldan Ajubhai Langdiya, who were found in the Hundai Verna Car No.GJ-11-S-2535 with cash amount of Rs.4,50,000/- at 02:00 Hours between Jasodanagar Circle to Kedila Bridge Road, and the car and cash amount of Rs.4,50,000/- were seized under Section 102 Cr.P.C. It was, accordingly, urged that this Court may direct release of the muddamal cash in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India.
3.2 Mr. Sindhi stated that the petitioner approached the Court of Additional Chief Metropolitan Magistrate for release of muddamal cash by preferring Muddamal Application, which came to be rejected on 07.11.2020. Being aggrieved by the same, the petitioner preferred Criminal Revision Application No.06 of 2021 before the Additional Session Judge, City Civil & Sessions Court, Ahmedabad, which also came to be rejected vide order dated 03.03.2021 by confirming the order passed by the Additional Chief Metropolitan Magistrate.
4. Heard learned advocates on both the sides and perused the material produced on record. Section 102 Cr.P.C. permits any police officer to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence; and such officer, if subordinate to the officer in-charge of a police station, then he is required to forthwith report the seizure to the superior officer.
4.1 Sub-section (3) of Section 102 Cr.P.C. provides that every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. Thus, the provision makes it clear that if any seizure is made under sub-section (1) of Section 102 Cr.P.C., then the report has to be made to the Magistrate having jurisdiction regarding such seizure.
5. Here, in this case, the vehicle and the cash amount of Rs.4,50,000/- was seized. The report of the sub-inspector, Khokhra Police Station, Ahmedabad City addressed to the Additional Chief Metropolitan Magistrate was in connection to the application moved by the present petitioner for handing him back the amount so seized under Section 102 Cr.P.C. The report of the police does not suggests that the seizure of car and the a
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