The court affirmed that ownership must be proven for the return of seized property, and the discretion in disposal must be exercised judicially, particularly when the accused is acquitted.

[1.0] RULE returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of the respondent No.1 – State of Gujarat.

[2.0] By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 452 of the Code of Criminal Procedure, 1973 (for short “CrPC”), the petitioner has prayed for the following relief:

“(b) YOUR LORDSHIPS MAY BE PLEASED to issue writ of mandamus or certiorari or in nature of mandamus or certiorari or order to quash and set aside the order passed by the learned Additional Judicial Magistrate First Class at Mandi, District Kachchh, dated 27.03.2023 as well as order passed by learned 6th Additional Sessions Judge, at Bhuj, District Kachchh dated 29.08.2023 in the interest of justice; (c) YOUR LORDSHIPS MAY BE PLEASED to issue writ of mandamus or certiorari or in nature of mandamus or certiorari or order the learned Chief Judicial Magistrate Court, Mandvi, District Kachchh to hand over the custody of the muddamal gold bar seizer of receipt (Muddamal Pavti) No.106/2012 Article (1) Gold Bar Net Weight 200 GM and 140 Milligram and 19 Carat / 77.40, to the petitioner in the interest of justice;”

[3.0] An FIR being I-CR No.66 of 2012 came to be registered with Mandvi Police Station, District Kachchh for the offences punishable under Sections 454, 457, 380 , 411 and 114 of the Indian Penal Code, 1860 (for short “ IPC ”) and pursuant to investigation, charge-sheet came to be filed which culminated into Criminal Case No.182/2013 and after conclusion of trial, the learned Magistrate has been pleased to acquit all the accused.

[3.1] Thereafter, the petitioner filed an application under Section 452 of the CrPC seeking muddamal Gold Bars seized during the investigation pursuant to which inquiry came to be held wherein the learned Magistrate has been pleased to pass an order of confiscate the muddamal to the government vide order dated 27.03.2023. Being aggrieved and dissatisfied, the petitioner filed Criminal Appeal No.86/2023 and the learned 6th Additional Sessions Judge, Bhuj-Kachchh dismissed the criminal appeal vide judgment dated 29.08.2023. Hence, present petition.

[4.0] Heard learned advocate for the petitioner and learned APP for the respondent – State of Gujarat.

[5.0] Learned advocate for the petitioner has submitted that the accused persons are acquitted and as the muddamal articles i.e. muddamal Gold Bar Net Weight 200 GM and 140 Milligram and 19 Carat / 77.40 seized vide Receipt (Muddamal Pavti) No.106/2012 (hereinafter referred to as “muddamal article”)

were seized from the possession of the present petitioner - original owner and the complainant has filed no claim purshis.

Further, the police forcibly and illegally recovered the muddamal article from the possession of the present petitioner and panchnama was drawn. The petitioner has produced the bills of said muddamal though both the Courts below have ignored the said fact and not handed over the muddamal article to the present petitioner. When accused are acquitted and muddamal article was recovered from the possession of the petitioner then the learned trial Court should not have passed an order disposing of the muddamal in arbitrary manner. In support of his submissions, he has relied on the decision of the Hon’ble Supreme Court in the case of N. Madhavan vs. State of Kerala reported in (1979)4 SCC 1 and has requested to allow the present petition.

[6.0] Per contra, learned APP has vehemently opposed the present petition and submitted that both the Courts below have not committed any error in disposing of the muddamal article. It is submitted that earlier the petitioner had filed an application Exh.29 seeking possession of muddamal article which was not pressed during the pendency of the criminal case. Subsequent to conducting the inquiry qua muddamal article, learned Magistrate came to conclusion that at the relevant point of time, no proof of ownership of muddamal article was produced by the petiti