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2016 DIGILAW 2807 (MAD)

Panneer Selvam v. State of Tamil Nadu

2016-08-10

P.DEVADASS

body2016
ORDER : Aggrieved by the dismissal of his property return petition in Crl.M.P.No.4781 of 2015, by the learned Judicial Magistrate, Sivakasi, the de facto complainant has directed this revision. 2. The revision petitioner is a businessman in Sivakasi. He seems to be an affluent man. On 04.03.2015, some unidentified persons posing themselves as Police Officials visited the petitioner's Office and took him to an undisclosed place. The fake Policeman interrogated him and they intended to effect some recovery. They have adopted their own method of investigation. They put up a demand of Rs.1,00,00,000/- for his release. Rs.25,00,000/- was arranged and paid to them in 2 installments, namely, Rs.10,00,000/- and Rs.15,00,000/-. Thereafter, on 05.03.2015, the captive was released from their clutches. 3. Subsequently, on 11.03.2015, the petitioner lodged a complaint with Sivakasi East Police. Based on his complaint, the Police registered a case in Crime No.94 of 2015, for offences under Sections 452, 365, 147, 148, 342, 294(b), 324 and 506(ii) I.P.C. Investigation was over. Final report also was filed. The learned Judicial Magistrate, Sivakasi, took cognizance in P.R.C.No.73 of 2015. 4. During investigation, based on their confessional statement, the Investigation Officer effected the following recoveries: Accused Recovery Duraipandi (A1) Rs.7,00,000/- + 3 ¾ Soverigns Jewels Seemaichamy (A2) Rs.1,00,000/- V.C.Raja 4 Soverigns Chain Ganesan @ Ayyar (A4) Rs.1,40,000/- Kumar (A5) Rs.50,000/- Vinodkannan (A9) Rs.1,50,000/- Daniel (A10) Rs.50,000/- David (A11) Rs.10,000/- Killadi @ Suresh (A12) Rs.15,000/- Sarles @ Saravanan (A13) Rs.2,00,000/- Ganesan (Others) Rs.10,000/- Total Cash Jewels Rs.14,25,000/- + 7 ¾ Soverigns 5. The Investigation Officer produced the said case-properties before the learned Judicial Magistrate, Sivakasi, on the order passed under Section 457 Cr.P.C. Thereafter, R.P.Numbers were assigned. Accused were remanded to judicial custody. 6. Petitioner filed Crl.M.P.No.4781 of 2015, under Section 451 Cr.P.C., for return of the said properties to him. 7. A1 to A3 Duraipandi, Seemaichamy and V.C.Raja respectively have filed counters making rival claim. They have stated that the Police forcibly obtained those properties from them and the properties belongs to them. 8. The learned Judicial Magistrate, Sivakasi, coming to the view that there are rival claims, dismissed the property return petition, however, ordered depositing of the cash in a Bank. 9. The learned counsel for the petitioner contended that the accused have demanded a ransom money of Rs.1,00,00,000/- for the release of the petitioner. But, the petitioner could muster only Rs.25,00,000/- through his family members. 9. The learned counsel for the petitioner contended that the accused have demanded a ransom money of Rs.1,00,00,000/- for the release of the petitioner. But, the petitioner could muster only Rs.25,00,000/- through his family members. That was given to the accused. And, his release was secured. Ultimately, Police could recover only Rs.14,25,000/- and jewels weighing 7 ¾ Sovereigns. Cash belongs to him. Since the jewels came out of the ransom money, they also belongs to him. There is no acceptable basis or concrete materials for the accused to claim the said properties. 10. The learned Government Advocate (Criminal Side) submitted that during the investigation these case-properties were recovered by the Investigation Officer from the respective accused. 11. The learned Government Advocate (Criminal Side) also submitted that these recoveries were effected based on the disclosure statement of the accused recorded under Section 27 of the Evidence Act. In their Confessional Statement, the accused have also stated that the ransom money was shared among themselves and some of the accused have purchased jewels out of their share of money. 12. The learned Government Advocate (Criminal Side) denied that the accused persons were tortured and cash and jewels were obtained from them forcibly. According to him, the petitioner is entitled to the custody of the said case-properties. 13. The learned counsel for the fourth respondent/A9 would contend that the Police has implicated him in this case and also forcibly recovered Rs.1,50,000/- from him. His family members were harassed. They have arranged the said amount. Thus, he would say that Rs.1,50,000/- belongs to him. 14. The learned counsel for the seventh respondent/A13 would also submit that the Police has implicated him in this case and also forcibly recovered Rs.2,00,000/- from him. 15. The learned counsel for the seventh respondent/A13 also would submit that the second respondent/A1 also filed H.C.P., when he was kept in illegal detention. 16. Though the other rival claimants, namely, A1, A2 and A3 were made as parties in this revision, they did not enter appearance nor any learned counsel appeared for them. 17. I have anxiously considered the rival submissions, perused the impugned order and also the materials on record and also the Case-Diary. 18. Section 451 Cr.P.C., deals with giving of interim custody of the case property. It also deals with disposal of the case-property. But, such disposals are all pending conclusion of the trial of the case. 17. I have anxiously considered the rival submissions, perused the impugned order and also the materials on record and also the Case-Diary. 18. Section 451 Cr.P.C., deals with giving of interim custody of the case property. It also deals with disposal of the case-property. But, such disposals are all pending conclusion of the trial of the case. Under Section 451 Cr.P.C., the Court can pass appropriate orders. In fit and appropriate cases, the Court can even give permission to sell the case property and use the cash. But, while doing so, the Court must keep in it's mind the principles laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai vs. State of Gujarat [2003 (1) CTC 175(SC)]. The Court must take care of the plight of the victim and also the interest of the prosecution. 19. Because rival claims have been made, without enquiring into the same, the Court cannot simply dismiss the property return petition. If there is a case, there will be a counter case. But, there should be a judicial order deciding the disputed matter/rival claim. 20. In the F.I.R., the petitioner had narrated the entire events relating to the alleged commission of crime and his release by the abductors. He had also mentioned their initial demand of Rs.1,00,00,000/- and ultimately his paying of Rs.25,00,000/- to secure his release. There are instances that out of their share of booty, the accused having spent the amount lavishly on wine and women, because it is not their own money. Actually, they enjoy at the cost of others. Sometimes they used to buy jewels and other valuables out of the booty. In such circumstances, those acquired items becomes part of crime property. 21. In this case, Rs.14,25,000/- and 7 ¾ sovereigns of jewels have been recovered. The 7 ¾ sovereigns of jewels are stated to be purchased out of the ransom money of Rs.25,00,000/- paid by the petitioner. 22. When the accused were produced before the learned Judicial Magistrate, Sivakasi, they did not complain that cash and jewels were forcibly collected from them by the Police. They did not send any complaint to the superior Police Officers. They did not send any petition against the Investigation Officer to Judicial Authorities, Human Rights Commission, District Collector or District Judge. 23. When the accused were produced before the learned Judicial Magistrate, Sivakasi, they did not complain that cash and jewels were forcibly collected from them by the Police. They did not send any complaint to the superior Police Officers. They did not send any petition against the Investigation Officer to Judicial Authorities, Human Rights Commission, District Collector or District Judge. 23. After they were brought under judicial custody also, they did not send any petition to the effect that Sivakasi East Police have tortured them and forcibly collected their own property. In his affidavit filed in the H.C.P. also, A1 did not say so. Only for the first time, when the petitioner filed property return petition before the learned Judicial Magistrate, Sivakasi, A1 to A3 have filed counter making rival claim. A9 and A13, who are also tempted to make such a rival claim, did not file any counter before the learned Magistrate. 24. When the confessional statements were recorded from the concerned accused in the presence of witnesses, they have stated how they came to the possession of cash, how they acquired the jewels out of the cash shared among themselves. There was no retraction of the said confession. There is no valid or acceptable reason in support of their rival claim. In such circumstances, necessarily petitioner is the owner of the cash. Since the jewels came out of the ransom money, they must also go to him. 25. But, as on date, all the accused are presumed to be innocent. Trial is pending. They are not convicted. We are not the Trial Court. We cannot prejudge the case. Therefore, whatever said here are made only for the limited purpose of deciding the property return petition. This has nothing to do with the trial of the case. 26. The principles laid down by the Hon'ble Apex Court in Sunderbhai Ambalal Desai (supra) squarely applies to this case. Petitioner can keep the recovered 7 ¾ soverigns of jewels in his possession and he should produce them before the Trial Court as and when so ordered by the Court. The cash Rs.14,25,000/- is his money. Simply, asking him to keep the cash and count and see the currency notes will not serve his purpose. 27. In view of the foregoings, it is ordered as under: (i) This revision is allowed. The cash Rs.14,25,000/- is his money. Simply, asking him to keep the cash and count and see the currency notes will not serve his purpose. 27. In view of the foregoings, it is ordered as under: (i) This revision is allowed. (ii) The impugned order, dated 30.06.2015, passed in Crl.M.P.No.4781 of 2015, by the learned Judicial Magistrate, Sivakasi, is set aside. (iii) The learned Magistrate will give interim custody of 7 ¾ soverigns of jewels to the revision petitioner. (iv) The learned Magistrate will return the cash Rs.14,25,000/- to the revision petitioner, after recording the currency note numbers in the Property Register, if not already recorded. (v) The revision petitioner will execute a personal bond for Rs.17,25,000/- (Rupees seventeen lakhs and twenty five thousand only) to the satisfaction of the said Magistrate. (vi) It is made clear that no property document, Solvency Certificate or surety shall be insisted upon. (vii) A photograph of the jewels with the signature of the revision petitioner shall be kept in the case records. (viii) The revision petitioner is permitted to spent the cash Rs.14,25,000/-. (ix) Until final property order is passed by the Trial Court, the revision petitioner shall not dispose of, alter or change the said jewels. (x) The revision petitioner shall cause the production of the said jewels as and when so ordered by the Court.