ORDER

29.03.2024 Heard Mr. K. Bhuyan, learned counsel for the petitioner. Also heard Mr. D.

Das, learned Additional Public for the State of Assam.

2. This is an application filed under Section 397/401 of the Code of Criminal Procedure, 1973, praying for releasing the seized articles of 49 bags of areca nuts which has been seized by the police in connection with Jamunamukh P.S. Case No. 44/2023, registered under Sections 379/411 of the Indian Penal Code arising out of Jamunamukh P.S. GDE No. 348 dated 24.08.2023.

3. In this regard, Mr. Das, learned Additional Public Prosecutor has produced the Status Report along with the FSL Report issued by the Food Analyst to Government of Assam, Guwahati, which revealed that the areca nuts which were seized in connection with this case are not suitable for use for human consumption and apart from that the case has already been charge-sheeted vide CS No.60/2023 dated 31.12.2023 against the accused/petitioner.

4. On the other hand, Mr. Bhuyan, learned counsel for the petitioner has submitted that the seized articles are perishable goods and since last 6 (six) months the goods are under police custody, and hence, there is a probability of damage of those seized goods, if, further kept under the police custody. He also submits that the accused/petitioner is the owner of the seized areca nuts and no one other then the petitioner claimed for the seized goods which he had purchased and collected for his business purposes.

5. In support of his submission, Mr. Bhuyan, learned counsel for the petitioner relies on the decision passed by the Hon’ble Apex Court reported in (2002) 10 SCC 283 [Sunderbhai Ambalal Desai vs. State of Gujrat] , wherein, he emphasized mainly in paragraph Nos. 7 and 8 of the said judgment which read as under;

“7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

1. Owner of the article would not suffer because of its remaining unused or by its misappropriation.

2. Court or the police would not be required to keep the article in safe custody;

3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and

4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under-

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Se