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Sudama Tiwari v. State Of U.P. - APPLICATION U/s 482 No. 10505 of 2005 [2005] RD-AH 5473 (9 November 2005)


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Court No. 54

Criminal Misc. Application No. 10505 of 2005.

Sudama Tiwari Vs. State of U.P.

Hon. Mrs. Poonam Srivastava, J.

Heard learned counsel for the applicant and learned A.G.A. for the State.

This application has been filed for release of the Compressor Machine which was taken into custody by the police after the applicant was involved in case crime No. 118 of 2005, under Section 4/5 Explosive Substances Act, Police Station Padari, District Mirzapur. After the applicant was taken into custody, he was released on bail. An application was moved before the Magistrate for release of the Tractor which was taken along with Compressor Machine. The tractor has already been released in favour of the applicant. The application for release of the Compressor Machine was rejected vide order dated 25.4.2005, which was challenged in Revision No. 78 of 2005. The revision was dismissed on 7.7.2005. The two orders have been challenged in this application. The sale letter has been annexed as Annexure-2 to the affidavit, which shows that the compressor machine was purchased from one Mangal Prasad Gupta for a consideration of Rs. 65,000/- on 3.7.2004. Admittedly, the compressor machine was taken into custody along with tractor. The tractor stands released but the release of the compressor machine has been refused on the ground that ownership of Sri Mangal Prasad Gupta, from whom the applicant had purchased the compressor machine, had not be substantiated by any documentary proof or receipt etc. The objection of the learned A.G.A. is that the compressor machine is a case property.

I have taken the entire facts and circumstances of the case in to consideration, the Code provides in Section 451. Section 451 Cr. P.C. is quoted below:-

"Order for custody and disposal of property pending trial in certain cases:- When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of".

The Apex Court in the case of Sunder Bhai Ambalal Desai Vs. State of Gujrat, A.I.R. 2003, S.C., 638 has held that the power under Section 451 Cr.P.C. should be exercised expeditiously and judiciously as it would serve a number of purposes such as owner of the article would not suffer because of its remaining unused. The court or police would not be required to keep the article in safe custody, if the proper Panchayatnama is prepared before handing over the article, the same can be used in evidence instead of its production before the court during the trial and that the jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the article. In the case of Smt. Basavva Kom Dyamangouda Patil Vs. State of Mysore and another, 1997 (14), A.C.C. 220 (S.C.),  the Apex Court had ruled and observed as under:-

"The object and scheme of the various provisions of the Code appear to be that where the property which has been the suibject-matter of an offence is seized by the police, It ought not 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 object of the Code seems to be that any property which is in the control of the court either directly or indirectly should be disposed of".

This view was reiterated in the case of Mohd. Shamim Khan Vs. State of U.P. and another, 2004(48) ACC, 605 and in the case of Tulsi Rajak Vs. State of Jharkhand, 2004 Cr. L.J., 2450.

Taking entire facts and circumstances into consideration and principle laid down by the Apex Court and followed by this Court and other High Courts, I am of the view that the order dated 25.4.2005 passed by the learned IInd Additional Chief Judicial Magistrate, Mirzapur confirmed in revision vide judgment dated 7.7.2005 can not be left to stand and it is quashed. This application is allowed and the learned Magistrate is directed to hand over the compressor machine to the applicant after taking an adequate security and also getting complete memo prepared with full description of the compressor machine which can be used at later date during the trial.

Dt/-   .8.2005.



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