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2015 DIGILAW 943 (KAR)

Etagi Kotresh v. Superintendent of Police

2015-08-18

A.S.BOPANNA

body2015
ORDER : A.S. Bopanna, J. The petitioner is before this Court to seek release of seized gold and silver articles in PF No. 70/01 in Crime No. 196 of 2001. In view of the subsequent development, the petitioner is seeking that respondent 3-State be directed to pay the value of the said articles as indicated by them in Annexure-R1 to the petition. 2. The petitioner claims to be an authorised pawn broker. Since a case in Crime No. 196 of 2001 was registered, in the course of the investigation, the articles were seized from the shop belonging to the petitioner. The articles seized from the shop of the petitioner were enlisted in PF No. 70/01. When the further proceedings in Crime No. 196 of 2001 was in progress before the Court of Judicial Magistrate First Class, Davanagere in C.C. No. 69 of 2003, the petitioner herein filed an application under Section 457 of Criminal Procedure Code, 1973 seeking release of the articles seized from the shop belonging to the petitioner. Since the said application was to be considered by the Court below, the respondent-police authorities were required to respond to the same. 3. In the said proceedings a report dated 20-12-2011 was filed wherein the petitioner indicated that the said articles were not available despite the same having been seized and having been kept in proper custody with the department. It is in that view, the consideration of the application for release of the articles did not arise for consideration. The petitioner therefore claiming to be aggrieved by the said act and since the respondents had taken a stand that the articles though seized are not available at this juncture, had approached this Court seeking for a direction to release gold and silver articles. However since it was indicated that the same was not available and the authorities in statement of objections to the instant petition stated the value of the property as per Annexure-R1, the petitioner has amended the writ petition and sought the prayer for payment of the value of the articles. 4. However since it was indicated that the same was not available and the authorities in statement of objections to the instant petition stated the value of the property as per Annexure-R1, the petitioner has amended the writ petition and sought the prayer for payment of the value of the articles. 4. In that view, the perusal of the objection statement filed on behalf of the respondent would indicate that in view of the accused Mallik Saheb stating that the articles had been found in the shop belonging to the petitioner on 18-8-2001, the proceedings were held to recover the articles from the shop of the petitioner as has been indicated and the same had been listed in PF No. 70/01. The respondents, have further indicated that the respondent-authorities came to know that seized gold articles were missing and accordingly on 17-2-2012, pursuant to the direction issued by the Superintendent of Police, Davanagere, the then Deputy Superintendent of Police has lodged a complaint against the Police Sub-Inspector, with regard to missing of gold and silver articles seized in PF No. 70/01 and also PF No. 69/01. A complaint was filed against Sri H.K. Seetharam, Police Sub-Inspector was registered in Crime No. 36 of 2012, dated 17-2-2012 and the proceedings in that regard is pending. The case was thereafter transferred to the CID who have thereafter investigated the matter and filed the charge sheet against the then Police Sub-Inspector - Sri H.K. Seetharam. 5. In view of the contentions on behalf of the respondent, the fact that certain gold and silver articles have been seized from the shop belonging to the petitioner, cannot be disputed. If that be the position, when the petitioner had made an application under Section 457 of the Criminal Procedure Code, normal course of law would have been followed by the learned Magistrate and appropriate orders for custody of the same could have been passed. However the same arise for consideration in the instant case since admittedly the seized articles are missing. As noticed from the contentions of the objection statement, the respondents have also initiated action against the Police Inspector Sri H.K. Seetharam and charge-sheet has been filed. Whether the allegations against Sri H.K. Seetharam are proved or not is one aspect of the matter. 6. As noticed from the contentions of the objection statement, the respondents have also initiated action against the Police Inspector Sri H.K. Seetharam and charge-sheet has been filed. Whether the allegations against Sri H.K. Seetharam are proved or not is one aspect of the matter. 6. Irrespective of the same, the question for consideration in this petition is the claim made by the petitioner in respect of gold and silver articles seized from the shop of the petitioner. Based on the action that has been taken against Sri H.K. Seetharam and when at the first instance the seizure has been made under the provisions of law and the same had been kept in the custody of the respondent, the petitioner, in any event, would be entitled to the articles that are seized from the shop of the petitioner. 7. At this juncture, since the said gold and silver articles have neither been traced nor has been recovered from Sri H.K. Seetharam against whom the criminal proceedings are initiated, the State at this point would have to compensate the petitioner to the extent of the value of the articles seized since the articles themselves are not available at this point. 8. Thereafter if ultimately, the charge alleged against Sri H.K. Seetharam is proved or if an independent proceedings are held and he is found guilt)' certainly the State would thereafter initiate appropriate action to recover the said amount for his complicity in misappropriating the articles. Therefore for the present the prayer made by the petitioner to pay the value of the articles belonging to the petitioner in PF No. 70/01 would require consideration. 9. Though the petitioner has specifically sought the value as indicated in the prayer based on the valuation being made under Annexure-R1, I am of the opinion that the valuation could be made based on the documents produced by the petitioner for the ownership of articles which is indicated in PF No. 70/01. For the said purpose the claim as had been made by the petitioner while filing the application under Section 457 of the Criminal Procedure Code shall be made available to the respondent. In respect of such articles which is found to be belonging to the petitioner, the valuation shall be made in consultation with the petitioner and an approved valuer. For the said purpose the claim as had been made by the petitioner while filing the application under Section 457 of the Criminal Procedure Code shall be made available to the respondent. In respect of such articles which is found to be belonging to the petitioner, the valuation shall be made in consultation with the petitioner and an approved valuer. The value as on the date of valuation being made shall be taken into consideration and the amount arrived at shall be paid by the third respondent to the petitioner. 10. To enable the said process being completed, the petitioner shall now file all details relating to the articles belonging to the petitioner under PF No. 70/01 in the same manner as had been indicated in the application filed under Section 457 of the Criminal Procedure Code in Crime No. 196 of 2001. The third respondent through the Competent Officer shall take note of the articles of the petitioner and secure valuation of the said properties in consultation with the petitioner and the value arrived shall be paid to the petitioner. Such process of valuation shall be completed within a period of two months from the date on which the representation along with all details are made by the petitioner to the third respondent. On such valuation being made, the payment of the amount shall thereafter be made to the petitioner within a period of three months of the date on which the valuation is finalised. 11. In view of the observations made above, liberty is reserved to the third respondent through Competent Authority to initiate recovery proceedings if ultimately the charge alleged against Sri H.K. Seetharam is proved or if the third respondent is able to independently establish the complicity of the said Officer. In terms of the above direction the petition shall stand disposed of.