ORAL ORDER

1. Heard Mr. Jitendra Malkan, learned Senior counsel assisted by Ms. DP Malkan, learned advocate for the applicants.

2. Present petition is filed by the applicants for release of the muddamal. Pursuant to offence registered as CR No. 87 of 2003 under Section 395, 397 of IPC with Bhachau Police Station, the Investigating OfÏcer during the course of investigation, seized the gold ornaments and at the conclusion of the investigation, chargesheet had been filed. The case was committed to the Sessions Court and vide order dated 10.06.2004 passed in Sessions Case No. 4 of 2004, the learned Additional Sessions Judge, Gandhidham acquitted the accused Abdul @ Hingorji. The learned Sessions Judge while acquitting the accused, did not decide the issue of muddamal because some of the accused were absconding. Since 2004, the absconded accused still at the run and Investigation OfÏcer is unable to proceed further against them.

3. The applicants are the legal heirs of deceased Chandulal Motilal Soni, who was original complainant of the case.

4. In the aforesaid background, the applicants are before this Court for custody of muddamal seized by the Investigating OfÏcer.

5. This Court is of the considered view that since 2004, the accused Nos. 10 to 14 are not traceable and till date and they are absconding on the police record. It is settled law that the property seized by the police during the investigation / trial, have to be produced before the competent court within 1 week of the seizure and the Court has to expeditiously pass an order for its custody. The Court has to ensure that the property seized by the police should not be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary and in any case for not more than 1 month. The expeditious and judicious disposal of the case of the property would ensure that the owner of the article would not suffer because of its remaining unused or by its misappropriation. (Basavva Kom Dhamangouda Patil V. State of Mysore and Sundarbhai Ambalal Desai Vs. State of Gujarat).

6. Considering the facts of the case, it would be beneficial to refer to the decision rendered by the Apex Court in Sunderbhai Ambalal Desai’s case (supra), the relevant portion of which reads thus;

“5. Section 451clearly empowers the Court to pass appropriate orders with regard to such property, such as-

(1) for the proper custody pending conclusion of the inquiry or trial;

(2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary;

(3) if the property is subject to speedy and natural decay, to dispose of the same.

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. Baswa 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 prop