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2005 DIGILAW 2107 (RAJ)

Ajay Singh S/o Hawalal v. State of Rajasthan

2005-08-09

KRISHAN KUMAR ACHARYA

body2005
JUDGMENT 1. - By this criminal misc. petition under Section 482 Criminal Procedure Code., the petitioner has challenged the order dated 13.1.2005 passed by Additional Sessions Judge No. 3, Jodhpur whereby criminal revision petition filed by the petitioner was rejected. By the said revision petition, petitioner challenged the order dated 20.2.2004 passed by learned Additional Chief Judicial Magistrate No. 2, Jodhpur in criminal case No. 2030/2000 whereby he has dismissed the application of the petitioner filed under Section 457 Criminal Procedure Code. for releasing the articles on Supardginama. 2. Learned counsel for the petitioner states that in the present case, articles/goods were seized under Section 102 Criminal Procedure Code. in the year 2000 from the conscious possession of the accused and thereafter none has filed the rights of ownership for taking the said goods on Supardginama. Moreover, the police report obtained by the learned ACJM, has also made no objection regarding the release of said articles as the articles were not the subject matter of any criminal case. Learned counsel further states that since investigation has been done and seized goods were lying in the police custody and will be ruined as the enquiry under Section 457 Criminal Procedure Code. will take long time. Therefore, he prays that the said articles/goods may be given to the petitioner on Supardginama. In support of his arguments, learned counsel for the petitioner has placed reliance on the judgment of this Court in case of Keshu Lal v. State of Rajasthan, reported in 1995 Cr.L.R. (Raj.) 339 and argued that learned ACJM should have given the said articles on supardginama to the petitioner as there is no other claimant and the petitioner will keep the said vehicle present in the court as and when required. 3. Learned Public Prosecutor supported the order passed by both the courts below and states that petitioner was arrested under Section 109 Criminal Procedure Code. by the police and the articles (mentioned in the list before the learned ACJM Court) were seized under Section 102 Criminal Procedure Code., therefore, unless he filed the rights of ownership for the said articles, the same may not be given to the petitioner on Supardginama. 4. I have considered the rival arguments advanced by both the parties. This Court in para-9 and 10 in the case of Keshu Lal v. State of Rajasthan (supra) has held as follows: "8. 4. I have considered the rival arguments advanced by both the parties. This Court in para-9 and 10 in the case of Keshu Lal v. State of Rajasthan (supra) has held as follows: "8. Section 457 Criminal Procedure Code. empowers a Magistrate to make such order as he thinks fit regarding disposal of the property seized by the police under Section 102 Criminal Procedure Code. under suspicion. The discretion given by these words must be judicially exercised. In the present case more than three years have passed. The property seized is continuing either in possession of police or of the Magistrate. On 1.4.1994 this Court has directed to the learned counsel for the State to produce information about the investigation done regarding these articles by police or any prosecution launched against the petitioner and other persons. An information was also sought by this court from this Court from the learned counsel for the State regarding confiscation of these articles under Section I I I of the Customs Act. After long interval of nine months, the present case is posted before me for final disposal but the learned counsel for the State is not able to give any information about the aforesaid fact. 10. In absence of anything to show that any investigation has been conducted by the police about these seized articles the learned Magistrate has no authority to postpone the disposal of these seized articles for an indefinite period on the assumed enquiry about the entitlement of the petitioner and other two ladies from whose possession admittedly these articles were seized by the police under Section 102 Criminal Procedure Code. in suspicion." 5. I have also gone through the facts of the said case. In the instant case, the articles were recovered from the possession of the accused on 24.10.2000 and accused was produced before Executive Magistrate under Section 109 Criminal Procedure Code. Thereafter, he has been released on bail. The property was reported to learned Magistrate. An application under Section 457 Criminal Procedure Code. for taking the articles on Supardginama was moved before the learned Magistrate and report was also called from the concerned SIlO who reported that they have no objection regarding the release the said articles. Learned Magistrate has also not inquired the matter for the disposal of the alleged goods. An application under Section 457 Criminal Procedure Code. for taking the articles on Supardginama was moved before the learned Magistrate and report was also called from the concerned SIlO who reported that they have no objection regarding the release the said articles. Learned Magistrate has also not inquired the matter for the disposal of the alleged goods. Nor it has been shown that any investigation is pending against the accused regarding these articles. Looking to the judgment passed by this Court in the case of Keshu Lal v. State of Rajasthan (supra), these articles cannot be kept either in police custody or in the possession of Magistrate Court for indefinite period. In the instant case, near about five years have been elapsed and none has filed the rights of ownership. The said articles is lying in the police custody without any purpose, the learned Magistrate should have return the said articles on Supardginama to the petitioner. 6. Accordingly, this misc. petition is allowed and the order dated 13.1.2005 passed by learned Additional Sessions Judge No. 3, Jodhpur is set aside. It is ordered that the articles/goods (mentioned in the list before the learned ACJM court) shall be given to the petitioner on Supardginama provided he furnishes a personal bond in the sum of Rs. 2,00,000/- with a surety of the like amount to the satisfaction of the learned Additional Chief Judicial Magistrate No. 2, Jodhpur with the following conditions: 1. that he will keep the said articles present in the court as and when required; 2. that he will not transfer or give the said articles to any other person; 3. that he will not change the shape or body of the said articles; 7. Learned Additional Chief Judicial Magistrate No. 2, Jodhpur shall be free to pass appropriate order regarding the said articles at the time of final disposal of the enquiry under Section 457 Criminal Procedure Code. without prejudice to the order of this Court.Petition allowed. *******