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2020 DIGILAW 779 (TS)

Ajay Kumar Agarwal v. State Of Telangana

2020-11-16

K.LAKSHMAN

body2020
JUDGMENT K. Lakshman, J. - This petition is filed under Section 482 Cr.P.C to quash the proceedings in the order dated 02.11.2020 in Crl.M.P.No.243 of 2020 in Crime No.661 of 2020 passed by the III Additional Chief Metropolitan Magistrate, City Criminal Courts, Nampally, Hyderabad. 2. Heard Sri Pratap Narayan Sanghi, learned counsel for the petitioner and learned Public Prosecutor. Perused the record. 3. The subject property i.e., 1. Nakishi Peacock Hara weighing about 171.990 grams, (2) Mango Necklace weighing about 144.000 grams, (3) Har Jai Peacock weighing about 102.070 grams, (4) Naksli Kabu Half weighing about 72.190 grams, (5) Necklace Krishna weighing about 121.410 grams, (6) Har Mango Peacock weighing about 143.160 grams, (7) Laxmi Peacock Nakshatra weighing about 112.070 grams, (8) Haram weighing about 119.030 grams, (9) Laxmi Mango Kasu weighing about 98.550 grams, (10) Laxmi Kasu Locket weighing about 77.000 grams was seized by the Police, Banjara Hills in Crime No.661 of 2020. The petitioner claiming to be the owner of the said property, filed an application under Section 451 Cr.P.C. for return of the said property. The III Additional Chief Metropolitan Magistrate vide order dated 02.11.2020 allowed the said application directing the Station House Officer, P.S. Banjara Hills to deposit the said property and on such deposit, the said property shall be returned to the petitioner for interim custody on condition of the petitioner furnishing bank guarantee for Rs.75,00,000/-(Rupees Seventy Five lakhs only) to the satisfaction of the Court. The petitioner shall not change the physical features and internal mechanism of the property and he shall produce the same as and when required during the course of the trial. The photographs of the property shall be taken and preserved on record. 4. Learned counsel for the petitioner submits that petitioner is a business man and he had already incurred loss of Rs.25 lakhs due to theft of the said property and only 75% of the material stolen was recovered. Therefore, the petitioner being a business man has to sell the said property, and not in a position to comply with the conditions imposed by the Court below vide order dated 02.11.2020 in Crl.M.P.No.243 of 2020 in Crime.No.661 of 2020. Therefore, the petitioner being a business man has to sell the said property, and not in a position to comply with the conditions imposed by the Court below vide order dated 02.11.2020 in Crl.M.P.No.243 of 2020 in Crime.No.661 of 2020. He has placed reliance on the principle laid down by the Hon'ble Apex Court in Sunderbhai Ambalal Desai versus State of Gujarat, (2002) 10 SCC 283 wherein Hon'ble Apex Court had an occasion to deal with the scope and ambit of Section 451 Cr.P.C. and held as under: "1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. court or the police would not be required to keep the article in safe custody; 3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles." 5. In the said judgment, the Hon'ble Apex Court categorically held that if proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail. 6. By relying on the said principle, Sri Pratap Narayan Sanghi, learned counsel for the petitioner would submit that the conditions imposed in the order dated 02.11.2020 in Crl.M.P.No.243 of 2020 in Crime.No.661 of 2020 are contrary to the principle laid down by the Hon'ble Apex Court. 7. As stated above, admittedly, the said property was recovered by the Police, P.S. Banjara Hills in Crime No.661 of 2020. There is no dispute regarding ownership of the said property. On satisfaction of the ownership of the petitioner with regard to subject property only, the learned Magistrate vide order dated 02.11.2020 directed the Station House Officer to deposit the case property and return the same on furnishing of bank guarantee for Rs.75,00,000/-(Rupees Seventy Five Lakhs only). Thus, there is no dispute with regard to ownership of the subject property. 8. As per the order dated 02.11.2020, the property is with the P.S. Banjara Hills. Thus, there is no dispute with regard to ownership of the subject property. 8. As per the order dated 02.11.2020, the property is with the P.S. Banjara Hills. The said property was not deposited by the Police before the learned Magistrate in Crime No.661 of 2020. It appears that panchnama was not conducted in the said crime. The remand report dated 10.10.2020 also does not contain the panchanama. The list of articles sent to the Magistrate in Crime No.661 of 2020 in Form No.66 is only annexed to the said remand report. 9. As discussed above, the Hon'ble Apex Court in Sunderbhai Ambalal Desai's case (supra) held that owner of the article would not suffer because of its remaining unused or by its misappropriation. The Court or the Police would not be required to keep the article in safe custody. If the proper panchnama before handing over the possession of the article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail. 10. In view of the above said law laid down by the Hon'ble Apex Court and also the fact that the petitioner is the owner of the subject property, this Court is inclined to quash the order dated 02.11.2020 passed by the III Additional Chief Metropolitan Magistrate in Crl.M.P.No.243 of 2020 in Crime No.661 of 2020, since it is contrary to law laid down by the Hon'ble Apex Court. 11. Therefore, this Criminal Petition is disposed of directing the Station House Officer, P.S. Banjara Hills to conduct panchnama, take photographs in respect of the subject property, deposit the same before the learned Magistrate, within one week from the date of receipt of copy of this order. On such deposit, the said property shall be returned to the petitioner for custody on condition of the petitioner giving an undertaking that he will compensate the value of the property in case of claim by any 3rd party which is subject to enquiry by the learned Magistrate. The Station House Officer shall take photographs of the property and file along with panchnama. 12. With the above said direction, the order dated 02.11.2020 in Crl.M.P.no.243 of 2020 in Crime No.661 of 2020 is quashed. Miscellaneous petitions pending, if any, shall stand disposed of.