The necessity for proper custody and disposal of property pending trial, and the trial court's authority to examine disputed facts during the trial.

1. The petitioner/accused has filed the instant criminal revision petition as against the order dated 19.11.2012 in Cr. M.P. No. 2934 of 2012 passed by the learned Principal Judge for NDPS Act Cases, Madurai.

2. The learned Principal Special Judge for NDPS Act Cases, Madurai, while passing the order in Cr. M.P. No. 2934 of 2012 on 19.11.2012 has among other things observed that “.... Because the property seized from the accused is money. It is kept in the Court custody. It will not lose its value etc.” and resultantly, declined to allow the petition for handing over of the cash to the petitioner on interim custody.

3. Assailing the correctness of the orders of dismissal in Cr. M.P. No. 2934 of 2012 dated 19.11.2012 passed by the learned Principal Special Judge for NDPS Act Cases, Madurai, the learned counsel for the petitioner/accused submits that the learned Special Judge should have allowed the Miscellaneous Petition, in as much as he has failed to appreciate the fact that the prayer of the revision petitioner/petitioner is only for an interim custody and that too after affording sufficient opportunity.

4. It is the contention of the learned counsel for the petitioner that the ingredients of Sections 62 and 63 of the NDPS Act would not stand in the way of consideration as regards the applicability of Section 451 of the Code of Criminal Procedure.

5. Also, the learned counsel for the petitioner, by placing reliance on the Honourable Supreme Court decision in Sunderbhai Ambalal Desai and C.M. Mudaliar v. State of Gujarat AIR 2003 SC 638 : (2002) 10 SCC 283 : 2003 (1) CTC 175 , strenuously urges before this Court that currency could be termed as property for the purpose of Section 451 of the Code of Criminal Procedure which can very well be returned to the petitioner after taking necessary photos and recording the serial numbers of the currency.

6. Yet another plea on the side of the revision petitioner is that the petitioner has volunteered himself to give an undertaking for the return of the cash, but this material aspect of the matter has not been looked into by the trial Court in a proper and real perspective.

7. It is the contention of the learned counsel for the revision petitioner that no useful purpose will be served in keeping the cash idle in the custody of the Court and in any event, just because there is a provision in regard to the confiscation, the same cannot be a valid reason for the trial Court to dismiss the Cr. M.P. No. 2934 of 2012.

8. Lastly, the learned counsel for the petitioner submits that the money recovered in the present case viz., Rs. 54,700/- and odd, represents the cash raised by the petitioner after obtaining jewel loan from the co-operative Bank. But this is disputed by the prosecution on the footing that while recovering five kilograms of Ganja, the amount has been seized and it represents the sale proceeds of selling Ganja.

9. Conversely, it is the contention of the learned Government advocate (Criminal Side) appearing for the Respondent that the seizure of a sum of Rs. 54,750/- in cash from the petitioner at the time of recovery of 5 kilograms of Ganja cannot be returned to the petitioner because of the fact that the said sum represents the sale proceeds of the selling of Ganja and therefore, prays for dismissal of the Revision Petition, since the trial Court has rightly dismissed the Miscellaneous Petition, in the interest of Justice.

10. At this stage, the learned counsel for the revision petitioner/petitioner cites the decision of Honourable Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (supra), wherein at page 176, it is held that

“The Court exercising powers regarding custody and disposal of property pending trial can under Section 451 of the Code of Criminal Procedure pass appropriate orders with regard to such property like

(a). order for the proper custody of property pending conclusion of the inquiry or trial;

(b). order to sell or otherwise dispose of after recording such e