JUDGMENT : MANOJ KUMAR GARG, J. 1. Instant criminal misc. petition has been filed by the petitioner against the order dated 31.07.2019, passed by learned Additional Sessions Judge, Khairwada, District Udaipur in Criminal Revision No. 3/2019 (CIS No. 3/2019) by which he dismissed the revision petition filed by the petitioner and upheld the order dated 26.04.2019, passed by learned Judicial Magistrate, Khairwada, District Udaipur in Complaint No. 1/2018 of Police Station Khairwada, District Udaipur by which the seized currency was refused to be handed over to the petitioner. 2. Succinctly stated, the facts of the case are that a sum of Rs. 47,00,000/- which was being carried by one Sh. Vasudeo Chaubisa, an employee of the Firm of the petitioner, was seized by the Police, being a suspected property, near Khairwada Toll Plaza on 09.10.2018 under Section 102 Cr.P.C. An application for release of the said amount was filed by the petitioner before the learned Judicial Magistrate, Khairwada, District Udaipur stating that the said amount belongs to him and the same has been disclosed in the income tax returns submitted till the month of October, 2018. The learned Judicial Magistrate rejected the petitioner’s application vide order dated 26.04.2019. Being aggrieved, the petitioner preferred a revision before the learned Additional Sessions Judge, Khairwada, who also dismissed the revision vide order dated 31.07.2019 and affirmed the order dated 26.04.2019 passed by learned Judicial Magistrate refusing to hand over the seized currency of Rs. 47 lacs to the petitioner. Hence this misc. petition before this Court. 3. Counsel for the petitioner submits that Section 102 Cr.P.C. authorizes a Police officer to seize any property, which may be alleged or suspected to have been stolen or which may, found under circumstances, create a suspicion of commission of any offence. In the present case, the currency of Rs. 47 lacs was certainly seized by the Police from Sh. Vasudeo Chaubisa, employee of the petitioner, who at the time of seizure made a specific disclosure about the source of said currency of Rs. 47 lacs. Since, the Police after having recovered currency of Rs. In the present case, the currency of Rs. 47 lacs was certainly seized by the Police from Sh. Vasudeo Chaubisa, employee of the petitioner, who at the time of seizure made a specific disclosure about the source of said currency of Rs. 47 lacs. Since, the Police after having recovered currency of Rs. 47 lacs under Section 102 Cr.P.C. forwarded the report, as mandatorily required by virtue of sub-section (3) of Section 102 Cr.P.C. to the concerned Magistrate (i.e. Judicial Magistrate, Khairwada), where the petitioner filed an application for handing him over the currency, inasmuch as the same was not claimed by anyone else and also that satisfactory explanation about the currency being possessed by Vasudeo Chaubisa was disclosed. Thus, the learned courts below have committed error in refusing to hand over the seized currency to the petitioner by the impugned orders. 4. It is further submitted that in the present case, neither there was any allegation of suspicion of the currency being stolen, or was there any suspicion that some offence has been committed. Thus, in absence of any such position, the courts below were legally required to hand over the custody of the seized currency of Rs. 47 lacs to the petitioner. 5. Furthermore, it appears that both the courts below while proceeding to pass impugned orders have kept in consideration the letter dated 24.10.2018 given before the learned trial court by the Deputy Director, Income Tax Department, not to give recovered currency to the petitioner for the same was unexplained and unaccounted cash, and that notice under Section 132-A of the Income Tax Act had already been issued to the petitioner. It is submitted that even if some delinquency has been committed by the petitioner while filing income tax returns, then also the Income Tax Department can, by conducting an enquiry with respect to seized cash currency of Rs. 47 lacs, proceed to levy penalty against the petitioner according to the provisions enumerated in the Income Tax Act, but a competent court cannot refuse legal right of an incumbent, who is entitled to have currency released in his favour. 6. It is further submitted that the basic approach of both the courts below while dealing with facts of the present case was totally erroneous and contrary to the specific law applicant in the present case. 6. It is further submitted that the basic approach of both the courts below while dealing with facts of the present case was totally erroneous and contrary to the specific law applicant in the present case. Even otherwise, there cannot be said to be any dispute that the currency notes recovered by the police under Section 102 Cr.P.C. are not required for the purpose of any enquiry or trial and, therefore, it was expected from the trial court to have passed suitable order for release of the currency in favour of the petitioner. It is therefore, prayed that the impugned orders may be set aside and the currency of Rs. 47 lacs may be released in favour of the petitioner and the petitioner is also ready to deposit some bank guarantee for the same. 7. Learned Public Prosecutor and Learned counsel for respondent No. 2-Income Tax Department has vehemently opposed the prayer made by the counsel for the petitioner and submitted that warrant under Section 132-A(1) of Income Tax Act has already been issued to the petitioner in respect of the seized currency and subsequent assessment proceeding is still pending in this case, therefore, the seized currency may not be released in favour of the petitioner. 8. Heard learned counsel for the parties and perused the impugned orders as well as material available on record. 9. Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283 has issued detailed directions while referred to Sections 451 and 457 of the Code of Criminal Procedure, which reads as under: “In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely: 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 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. 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. 8. If necessary, evidence could also be recorded describing the nature of the property in detail. 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. 8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basayya Kom Dayamangouda Patil vs. State of Mysore, 1977 Cri. L.J. 1141, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under: “4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain its ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquire or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance.” 9. The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. 10. To avoid a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. Valuable Articles and Currency Notes 11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest. 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. (3) after taking proper security. 13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition. 14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification. However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed.” 10. After hearing learned counsel for the parties and upon perusal of the record, this Court is of the opinion that as per the legislative intent of Section 451 Cr.P.C. the property means any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence, and therefore, the release of vehicle/article/currency notes under Section 451 Cr.P.C. cannot be restricted merely on account of the fact that they were used for commission of any offence. 11. Furthermore, in the aforecited precedent law, the Hon'ble Apex Court has held that the court should pass appropriate orders immediately and the articles should not be kept for a long time at the police station, and the procedure for disposal of the seized valuable articles, currency notes, vehicles, seized liquor and narcotic drugs has been laid down therein. 12. In the present case, currency of Rs. 47 lacs were recovered by the Police under Section 102 Cr.P.C. way back on 09.10.2018 and still the matter is at the initial stage of the trial and the currency in dispute is lying in the Police Station. 13. In light of the aforesaid discussion, the present misc. petition is allowed. 12. In the present case, currency of Rs. 47 lacs were recovered by the Police under Section 102 Cr.P.C. way back on 09.10.2018 and still the matter is at the initial stage of the trial and the currency in dispute is lying in the Police Station. 13. In light of the aforesaid discussion, the present misc. petition is allowed. The impugned orders dated 31.07.2019 and 26.04.2019 passed by the courts below refusing to hand over the seized currency to the petitioner, are hereby quashed and set aside. The seized currency of Rs. 47 lacs is ordered to be released in favour of the petitioner on ‘supurdgi’ subject to the conditions that the petitioner shall furnish a bank guarantee of Rs. 10 lacs in favour of the respondent-Income Tax Department, initially for a period of one year and which shall be renewed by the petitioner till completion of proceeding of tax assessment over the seized currency of Rs. 47 lacs, by the respondent-Income Tax Department. Upon completion of proceedings of tax assessment, the respondent Income Tax Department shall be at liberty to recover tax from the bank guarantee as submitted by the petitioner. 14. Stay application is also decided.