IMPORTANT POINTS
Taking photographs of the material object and obtaining the signature of the complainant and also of the accused thereon and keeping them in the case records to be exhibited at the time of trial, would serve the purpose. Thus, the interest of the prosecution, the interest of the owner of the property, the need of the prosecution to produce the property as evidence during trial and the right of the accused would be protected.

ORDER :

1. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for setting aside Annexure-B order passed by the Judicial First Class Magistrate-I, Palakkad.

2. The petitioner is the owner of a small jewellery shop. On the morning of 06.08.2019, while opening his shop, two persons came on a motorcycle and snatched away the bag in his hand, which contained gold and silver ornaments worth Rs. 9,00,000/- and they left the place on the motorcycle.

3. A case was registered as Crime No. 250/2019 of Walayar police station under Section 392 read with 34 I.P.C. in relation to the incident. One of the culprits was arrested on the same day and the stolen properties were seized from his possession. The ornaments were produced before the court.

4. The petitioner filed an application under Section 451 of the Code for getting interim custody of the ornaments. As per Annexure-A order, the learned Magistrate allowed the application on certain conditions. One of the conditions was that the petitioner shall not alter or dispose of the ornaments till the final disposal of the case.

5. The petitioner filed an application to delete the aforesaid condition and permit him to sell the ornaments. As per Annexure-B order, learned Magistrate dismissed that application on the ground that the property involved in the case is highly necessary at the time of evidence for identification.

6. Heard learned counsel for the petitioner and the learned Public Prosecutor.

7. Learned counsel for the petitioner submitted that the petitioner is not a person conducting large scale business in gold or silver ornaments. It is submitted that the ornaments robbed from his possession constitute the entire stock in his shop. It is also submitted that, if the petitioner is not permitted to sell the ornaments in the course of his business, it would affect his livelihood.

8. Learned Public Prosecutor has fairly submitted that the petitioner is the owner of a small jewellery shop. He would state that the prayer for selling the ornaments can be allowed if sufficient safeguards could be taken to retain evidence regarding the identity of the stolen property.

9. Section 451 of the Code reads as follows:

“451. Order for custody and disposal of property pending trial in certain cases - When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.”

10. In Basavva Kom Dyamogouda Patil vs. State of Mysore, AIR 1977 SC 1749, the Supreme Court has held as follows:

“The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice.......The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order sho