The need for proving ownership of seized property and the presumption of unlawful possession in the absence of satisfactory explanation.

JUDGMENT

(Prayer:Criminal Appeal has been filed under Section 454 of Cr.P.C., against the order dated 28.09.2021 passed by the Chief Judicial Magistrate Court, Thiruvarur, dismissing Crl.M.P.No.150/2021 seeking for return of the properties viz., documents and cash seized in Crime No.7 of 2020 on the file of the Deputy Superintendent of Police, Vigilance and Anti Corruption Wing,Thiruvarur.)

1. The Criminal Appeal is directed against the dismissal order dated 28.09.2021 passed by the Chief Judicial Magistrate, Thiruvarur, in the Criminal Miscellaneous Petition No.150 of 2021 filed under Section 451 of the Criminal Procedure Code.

2. The below question which is very serious and important in the present day context has arose in this appeal. Whether the properties seized from a public servant during the search operation by the Vigilance Wing of the Police be returned to the legal heirs of the public servant, if he dies pending investigation?

3.The facts leading to this appeal in short is:-

On 10.12.2020, Thiru.Dhanaraj, District Environmental Engineer in Tamil Nadu Pollution Control Board, was arrested for demand and receipt of Rs.40,000/- as illegal gratification from a Rice Mill owner to renew the license. Subsequently, as follow up action on 11.12.2020, search of his house at Urapakkam was conducted, which resulted in recovery of Rs.56,66,000/- (interestingly out of which, Rs.2,66,500/- were currencies of denomination of Rs.500/- and Rs.1000/- which were declared as invalid legal tender under the demonetization). Besides cash, incriminating documents and movables including gold jewels were found in his residence and there were inventorised by the police and copy given to the accused. Dhanaraj the accused got bail from the High Court vide order dated 18.01.2021, however pending investigation in Crime No.7 of 2020, he died on 07.05.2021. The appellants who are the wife and children of the deceased Dhanaraj filed petition before the Chief Judicial Magistrate, Thiruvarur, under Section 451 of Cr.P.C for return of the documents, gold jewels and cash seized from the house of the accused on 11.12.2020.

4. The State filed counter opposing the petition stating that during the lifetime of the accused, neither Dhanaraj nor the petitioners were able to satisfactorily account for the cash seized. Further, they did not seize any gold jewels as alleged in the petition. After taking inventory the gold jewels of various description weighing about 490 grams was returned to the 2nd petitioner, Haripradeep, S/o Dhanraj. Till his lifetime, Dhanraj did not seek for custody of the cash seized from him. Till date the petitioners only say that the money was mobilised by Dhanaraj for constructing a Hospital for his daughter, Haripriya(3rd petitioner) but not produce any record to support this claim. The claim of Haripriya is that she and her husband entrusted cash of Rs.9,50,000/- to her father Dhanaraj. This claim also not supported by any documents. Hence, the money has to be confiscated to the State as unclaimed money.

5. The trial Court, after considering the objection and the law governing for return of property seized by the police during investigation, dismissed the petition holding that without the proof of ownership, the petitioners are not entitled to get the money back. Further, he also observed that decision regarding the disposal of the property will be taken after the Police file the Final Report.

6. Against the above order, the petitioners have filed Criminal Appeal which was not taken on file initially since the Registry had an objection whether appeal will lie against the dismissal order of the petition filed under Section 451 of Cr.P.C., (Petition for interim custody of the property). The papers returned were represented by the petitioners with endorsement saying, the petition filed under Section 451 of Cr.P.C., has to be treated as petition under Section 452 of Cr.P.C, since it is deemed to be the final order in view of the