IMPORTANT POINT
Under section 451, normally, currency notes can be returned to a claimant, after taking evidence and establishing a prima facie right to get the money released. However, if the currency is a material piece of evidence, the Court may decline the request-In the case of jewellery, guidelines in Sunderbhai Ambalal Desai's case have to be followed. However, in case of huge quantity of gold or the gold is a stock in trade, the court should satisfy itself with cogent evidence the entitlement of the claimant and shall adduce necessary evidences in that regard.

ORDER :

Hariprasad, J.

Specific question begging for an answer in this order of reference is whether or not gold ornaments and money could be released in interim custody under Section 451 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) to a person claiming to be the owner of jewellery/money without incorporating a condition that the said articles should be produced before the court, as and when directed, exactly in the same condition as they were at the time of entrustment?

2. Aggrieved by conditions 2 and 4 in Annexure-A3 order passed by the Chief Judicial Magistrate, Pathanamthitta on Crl.M.P.No.3898 of 2019 in Crime No.1880 of 2019 of Pathanamthitta Police Station, the petitioner/claimant has approached this Court seeking modification of the conditions. A learned single Judge, vide reference order dated 09.10.2019, raised the above mentioned question and as ordered by the Hon'ble the Chief Justice, the matter has been placed before us.

3. Short facts relevant for the decision are as follows:

Pathanamthitta police registered Crime No.1880 of 2019 for an offence punishable under Section 392 of the Indian Penal Code, 1860 (in short, “IPC”). Annexure-A1 takes in both the first information statement (FIS) and the first information report (FIR). Sales Manager, Krishna Jewellery, Pathanamthitta has lodged FIS on the allegation that the accused 1 to 4 on 28.07.2019 at 16.30 hours trespassed into the jewellery store, tied up the defacto complainant, physically assaulted him and thereafter they robbed 3.5 kgs. of gold ornaments kept in a locker and also Rs.13 lakhs in cash. Total loss estimated is Rs.1,25,70,000/-. With these allegations, the case was registered.

4. Annexure-A2 is copy of the petition filed by the defacto complainant under Section 451 Cr.P.C seeking an order for release of cash and gold ornaments produced before the court by the investigating officer.

5. After considering all the contentions of the petitioner, AnnexureA3 order was passed by the Court. Placing reliance on the Supreme Court's decision in Sunderbhai Ambalal Desai v. State of Gujarat ((2002) 10 SCC 283) and another decision by this Court in Thomas Koshy v. State of Kerala (2010 KHC 617), the trial court issued the following directions:

“1. The petitioner shall execute bond for Rs.1,50,00,000/-(One Crore fifty lakhs only) with 2 solvent sureties, each for the like sum for production of the articles before the court.

2. The petitioner shall furnish security of bank guarantee for Rs.1,50,00,000/- before this Court.

3. The petitioner shall not use the above articles for committing any crimes.

4. The petitioner shall produce the above articles before the court in the same condition as and when required.

5. The petitioner shall produce attested photographs of the above articles counter signed by the Sub Inspector of Police, Pathanamthitta.

6. Detailed Mahazar of all the above articles shall be prepared before giving its interim custody to the petitioner.”

6. Conditions 2 and 4 above are under challenge.

7. Heard the learned counsel for petitioner and learned Public

8. We shall start by referring to the facts in Sunderbhai Ambalal Prosecutor. Desai's case. The petitioners, who were certain police inspectors, along with other police personnel, were allegedly involved in offences punishable under Sections 429, 420, 465, 468, 477A and 114 of the Indian Penal Code (in short, “IPC”). Prosecution case was that when they worked at various police stations they committed offences during certain period by replacement of mudammal articles including gold ornaments by other spurious articles, misappropriation of amounts kept in the police station, unauthorised auction of property seized and kept in police custody pending trial and tampering with records in the police station.

9. In the above case, questions relating to interpretation of Section 451 Cr.P.C. have been raised before the apex Court. In paragraphs 10 to 14 following observations are made:

“10. To avoid such a si