The person entitled to possession of property seized under Section 523, Criminal P. C. is the person whose possession was lawful at the time of seizure.

ORDER :- This petition has been filed by the petitioner to set aside the order of the Commissioner of Police and Presidency Magistrate, Madras City directing the return of a conch to the second respondent herein under Section 523, Criminal P. C. The facts of the case are these: The second respondent Amir Mohideen gave a complaint to the Sub-Inspector of Police, North Beach Police station that the petitioner committed theft of a conch belonging to him. On that complaint the Sub Inspector of Police investigated the matter and examined both the petitioner and the second respondent and ultimately referred the complaint to the first respondent as a mistake of fact. Later the revision petitioner filed a petition under Sec. 523, Criminal P. C. before the Commissioner of Police and Presidency Magistrate for the return of the conch. The Commissioner of Police ordered the return of the conch to the second respondent after having considered the facts as disclosed in the course of investigation, though the conch had been seized from Sultan Ibrahim to whom the petitioner was alleged to have entrusted the same.

2. Enquiry by the Commissioner of Police disclosed the following facts. According to the revision petitioner the conch was pledged by the second respondent Amir Mohideen with him as security for the amount borrowed from him and the same was kept by him with Sultan Ibrahim for safe custody. But in his statement before the Commissioner of Police the petitioner stated that towards the middle of 1966, the second respondent sold the conch to him for Rs. 4000 for cash and, as he found later that the price paid by him was exorbitant, he asked the second respondent to dispose of the conch and gave the conch to him for the said purpose. Thereafter the second respondent did not return the conch, nor sold it and paid the value to him. The petitioner wrote several letters to the second respondent and for a long time he did not hear from him. After some time having come to know that the second respondent had come to Madras, he questioned him and asked him about the conch. According to the petitioner, the second respondent told him that the petitioner could keep the conch with him and that he would collect Rs. 4000 and pay and take back the conch from him. After this the petitioner sent for Sultan Ibrahim and handed over the conch and three days later the second respondent met him and discussed about the conch and as there was certain misunderstanding between them the second respondent gave a complaint against him. Sultan Ibrahim was examined. According to him on or about 20th or 25th November 1967, he was sent for by the petitioner and at that time the second respondent was also with the petitioner and that the petitioner told him that there was a dispute between him and the second respondent and that he would give the conch for safe custody to him and that if later it was settled between them he could return the conch to the second respondent. He stated that he had the conch with him and it was seized by the police from him.

3. The case of the second respondent is that he bought the conch from Annamalai Chettiar in 1967 and that he wanted to sell the conch. He contacted the petitioner who was dealing in conches and known to him for some years and offered the conch for sale at the petitioner's place of business at No. 31 Adam Sahib Street and the petitioner took it from him and handed it over to Sultan Ibrahim who walked away with it and when he questioned about the same the petitioner did not give any proper reply. He further stated that thereupon his uncle and Kattuva Mohideen interfered in the matter and questioned the petitioner and the petitioner promised to return the conch that night itself, and when his uncle and Kattuva Mohideen went to him in the night, the petitioner was not there and since then he could not be got at and therefore, he gave a complaint to the Sub-Inspector of Police.

4. The Sub Inspector of Police stated in the c