Seizure of property under Section 102 of the Cr.P.C. requires evidence of theft or crime; mere suspicion is insufficient.

ORDER :

G. Radha Rani, J.

This Criminal Revision Case is filed by the petitioner – owner of the property under Section 451 read with Section 457 of Code of Criminal Procedure against the order passed in Crl.M.P.No.1031 of 2023 on the file of the Additional Junior Civil Judge – cum – VII Additional Metropolitan Magistrate at Hayathnagar in Crime No.77 of 2023 of PS Vanasthalipuram, Rachakonda District.

2. The brief facts of the case are that the Sub-Inspector of Police of PS Vanasthalipuram on receiving credible information on 15.01.2023 at 02:00 PM conducted vehicle checking at Gayathri Nagar Bank Colony Road and at 02:50 PM stopped a two-wheeler ridden by respondent No.2 without any number plate and seized a bag containing cash of Rs.23,17,400/- from him and registered a case in Crime No.77 of 2023 of Vanasthalipuram Police Station under Section 102 of Code of Criminal Procedure. Thereafter, the petitioner filed an application on 12.12.2023 under Section 451 read with Section 457 of Cr.P.C. for return of cash. The same was dismissed by the trial court.

3. Aggrieved by the said dismissal, the petitioner preferred this Revision.

4. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor.

5. Learned counsel for the petitioner submitted that Section 102 of Cr.P.C. grants power to the Police to seize movable property that was alleged or suspected to have been stolen. In the present case, there was no material to say that the cash was stolen. The cash could not be seized merely because the respondent No.2 failed to explain the source of cash. The Police were empowered to seize the same only if the cash was the proceeds of a crime or if the same was stolen. Till date, the FIR had not been altered and there was no report from any one about any stolen cash. The FIR itself could not be registered under Section 102 of Cr.P.C. as the said Section governs only procedural law and was not a penal offence. As such, the learned Judge ought to have released the cash in favor of the petitioner. The respondent No.2 also filed a memo before the court below stating that he had no objection to return the net cash to the petitioner. The petitioner also stated before the Court that his mother had sold a house and entrusted the cash to respondent No.2 to deposit in the bank and also enclosed the copy of the sale deed. The reasons given by the trial court were unsustainable and prayed to set aside the order of the trial court in dismissing the petition filed by him and to release the cash in favor of the petitioner.

6. Learned Additional Public Prosecutor reported that no complaint was received and the Section of Law was not altered till date in Crime No.77 of 2023 of PS Vanasthalipuram. He further contended that the sale deed filed by the petitioner would show that the house property was sold for a total sale consideration of Rs.13,63,000/- in the year 2021 but the amount seized by the Police surpasses the sale consideration amount. As such, the trial court rightly dismissed the application and supported the orders of the trial court.

7. Perused the record.

8. Section 102 of Cr.P.C. enables the Police Officers to seize any property which is alleged or suspected to have been stolen. As the case was registered under Section 102 of Cr.P.C., it is considered necessary to extract the above provision for proper appreciation. Section 102 of Cr.P.C. reads as follows:

102. Power of Police Officer to seize certain property. –

(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under Sub-Section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, co