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2017 DIGILAW 551 (KAR)

Abdul Shameed v. State

2017-03-03

B.A.PATIL

body2017
ORDER : B.A. Patil, J. Heard the learned counsel for the petitioner on office objection. It is noticed that petition has not been signed due to oversight. As such, the learned counsel for the petitioner is permitted to sign the petition before in the Registry. This petition is filed by the petitioner/accused No.2 under Section 482 of Cr.P.C., seeking to set aside the order dated 28.12.2016 passed by the Chief Judicial Magistrate, Yadgiri in Cri. Misc. No.57/2015 (C.C. No.176/2013). 2. Brief facts leading to filing of the complaint are that, on 07.04.2013 the complainant and his team were patrolling near Kadepur Check-Post. While checking vehicles coming from the Yadgir towards Raichur at about 7:15 p.m. a Qualis Car bearing Registration No. MH-04-BN-7488 came there and they stopped the car and when the said vehicle has been searched, they found a plastic bag and upon suspicion when the said bag was checking, they found 5 bundles of Rs.1,000/- currency note, each bundle consisting of 100 notes and 2 bundles of Rs. 500/- currency note, each bundle consisting of 100 notes, totally Rs.15,00,000/- cash was found in the said bag. It is further alleged that upon enquiry, the driver of the vehicle informed that he himself and accused No.2 were taking the said amount from Raichur to Bidar. It is further alleged that they were not having any documents relating to the cash and as there was no proper explanation, immediately accused were apprehended and a case has been registered against the accused persons. After the investigation, charge sheet came to be filed for the offence under Section 171-H of IPC. In the meanwhile, an application under Section 451 of Cr.P.C. came to be filed on 14.09.2015 for releasing the amount of Rs.15,00,000/- (Rupees fifteen lakhs) in his favour on the terms and conditions as the Court may deem fit or in the alternative to direct the depositing of the said seized amount in the Bank and the said application came to be dismissed. By assailing the said order, the petitioner is before this Court praying to release the said amount. 3. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for respondent-State. 4. By assailing the said order, the petitioner is before this Court praying to release the said amount. 3. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for respondent-State. 4. The main grounds urged by the learned counsel for the petitioner are that without proper application of mind the Trial Court has rejected the application filed under Section 451 of Cr.P.C. He has also contended that if the said amount is not released, it not only cause prejudice to the petitioner, but also cause irrevocable damage to the petitioner in view of demonetization and time restraint. He has further contended that he is ready to give adequate security for release of the said amount. On these grounds, he prays for allowing the petition. 5. On the contrary, learned High Court Government Pleader appearing for the respondent-State vehemently contended that the Trial Court after considering all the material has rightly rejected the said application for release of the property which has been seized in the said crime. Thereby he supports the order of the Trial Court and request to dismiss the petition. 6. I have gone through the contents of the petition, copy of the FIR, complaint and other material produced along with the petition. Admittedly an amount of Rs.15,00,000/- has been seized and it is in the custody of the police and it is also admitted fact that the petition came to be filed under Section 451 of Cr.P.C. and same has been rejected by the Trial Court. On going through the order of the Trial Court, the Trial Court has rejected the said application on two grounds. The first one is that the petitioner-applicant has not placed any material to show that he is lawful owner of seized amount of Rs.15,00,000/- and the second ground is that the amount is required for the purpose of identification at the time of evidence. But as could be seen from the document at Annexure-G and even the petition dated 14.12.2016, therein it is specifically mentioned that the brother-in-law Shabbir Ali alias Sabeer Ali purchased plot No.7 measuring 40''x60''=2400 sq.ft. bearing Municipal No.18-3-160/1 inland Sy.No.112/1-3 situated at Bidar Colony, Chidri Road, Bidar for a sum of Rs.15,51,000/- on 04.04.2013 in the name of his son and on the same day brother-in-law of the petitioner paid cash of Rs. bearing Municipal No.18-3-160/1 inland Sy.No.112/1-3 situated at Bidar Colony, Chidri Road, Bidar for a sum of Rs.15,51,000/- on 04.04.2013 in the name of his son and on the same day brother-in-law of the petitioner paid cash of Rs. 51,000/- as part and advance amount and agreed to pay the balance amount of Rs.15,00,000/- on 08.04.2013. It is further contended that Rs.15,00,000/- is required to make payment of plot at Bidar. The amount of Rs.15,00,000/- has been withdrawn on 06.04.2013 from HDFC Bank Ltd., Raichur exclusively belongs to brother-in-law of the petitioner working as Head Constable at Raichur. Even the document and the articles were there, but the Trial Court without considering the said aspect has rejected the claim petition. The Trial Court has also not kept into view the power under Section 451 of Cr.P.C. Whenever an application is filed under Section 451 of Cr.P.C. the said application has to be disposed of expeditiously and judiciously and how in what manner the application has to be disposed of and what are the requisite securities are to be taken by the Court while releasing of such properties or articles seized under any crime has been dealt in detail in a decision, reported in (2002) 10 Supreme Court Cases 283 : ( AIR 2003 SC 638 ) in the case of Sunderbhai Ambalal Desai v. State of Gujarat. When the petitioner-applicant has made out a case that the said amount belongs to him, under such circumstances, the Trial Court ought to have released the said amount by taking adequate security so far as for the purpose of marking of the said article it, could have followed the direction issued in the above said case at para 12 which reads as under: '12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after: 1. preparing detailed proper panchnama of such articles; 2. taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and 3. after taking proper security. preparing detailed proper panchnama of such articles; 2. taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and 3. after taking proper security. When an application has been filed under Section 451 of Cr.P.C. for release of the seized amount, under such circumstances, by following dictum laid down in the above said decision and the procedure as laid down therein, the Trial Court ought to have released the said amount by taking adequate security. 7. Keeping in view the ratio laid down in the above said decision, the applicant-petitioner if he is asked to give the Bank guarantee to the extent of Rs.15,00,000/- with two solvent sureties, with an undertaking that he will not dispute the identity of the said amount and as shown in the photograph and if the said amount released in his favour by taking adequate photographs and other things as per para 12, then it is going to meet the ends of justice. This aspect has not kept in view by the Trial Court and it has wrongly dismissed the petition. The order of the Trial Court is not in accordance with law and it deserves to be set aside. Hence, the said order dated 28.12.016 passed in Cri.Misc. No.57/2015 (C.C. No.176/2013) on the file of the Senior Civil Judge and Chief Judicial Magistrate at Yadgiri is set aside and the learned Magistrate would release the said property by taking Bank guaranty as observed above with the following conditions: The seized articles be handed over to the complainant after: (1) The petitioner shall give a bank guarantee to the extent of Rs.15,00,000/- (Rupees fifteen lakhs only) with two solvent sureties for the like sum; (2) preparing detailed proper panchnama of such articles; (3) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and also give an undertaking that he will not dispute the identity of the said amount and as shown in the photograph; (4) after taking proper security. (5) the same may be released on or before 15th of March 2017, if it is released after 30th of this month, the very purpose of the application will be defeated.