2020 (5) TMI 708 - HC - Indian Laws

Seeking release of gold ornaments and money in interim custody under Section 451 of the Code of Criminal Procedure, 1973 (Cr.P.C.) - custody to a person claiming to be the owner of jewellery/money without incorporating a condition that the said articles should be produced before the court, as and when directed, exactly in the same condition as they were at the time of entrustment - HELD THAT - On a plain reading of Section 451 Cr.P.C., it can be seen that the power to order for custody and disposal of property pending trial has to be exercised by the court by applying judicial discretion and the arrangement once made thereunder is not even final till the conclusion of inquiry or trial. The court is having a right to terminate the entrustment, get back the property from the person to whom it was given and entrust it to somebody else whom the court deems fit. In cases of rival claims for interim custody, preference of one person over the other does not settle any right to ownership or possession. The challenge is against conditions 2 and 4 imposed by the trial Judge. Condition 2 is relating to furnishing security in the form of bank guarantee for the value assessed by the court below. We find no reason to interfere with that condition as the jewellery items involved are of a considerable worth. Insofar as condition 4 is concerned, the court below shall allow the claimant to adduce evidence to establish a strong prima facie entitlement to the property. It may also ascertain whether there is any rival claimant for the gold ornaments involved in the case. After considering the entire evidence on record, the trial court shall take a decision as to whether the petitioner should be directed to produce the articles before the court in the same condition as and when required by the court - matter shall be disposed by the court below as expeditiously as possible, at any rate within a period of one month from the date of receipt of a copy of this order.

Summary

Issues Involved:
1. Interim custody of gold ornaments and money under Section 451 of the Code of Criminal Procedure, 1973.
2. Conditions imposed by the Chief Judicial Magistrate for the release of gold ornaments and money.
3. Interpretation and application of Section 451 Cr.P.C. in light of precedents.

Detailed Analysis:

1. Interim Custody of Gold Ornaments and Money under Section 451 Cr.P.C.
The primary issue is whether gold ornaments and money can be released in interim custody under Section 451 Cr.P.C. without the condition that they should be produced before the court in the same condition as they were at the time of entrustment. The court referred to the Supreme Court's decision in *Sunderbhai Ambalal Desai v. State of Gujarat* and other relevant cases to interpret Section 451 Cr.P.C. The court highlighted that Section 451 empowers courts to pass orders for the custody or disposal of property during inquiry or trial and emphasized that the property should not be retained longer than necessary. The court also noted that Section 451 Cr.P.C. allows for the temporary custody of property to protect or preserve it pending trial.

2. Conditions Imposed by the Chief Judicial Magistrate for the Release of Gold Ornaments and Money
The petitioner challenged conditions 2 and 4 of the order by the Chief Judicial Magistrate, which required furnishing a bank guarantee and producing the articles in the same condition as when required. The court examined these conditions in light of precedents and the specific facts of the case. It was noted that the conditions were imposed to secure the value of the property and ensure it could be produced during the trial. The court found no reason to interfere with the condition of furnishing a bank guarantee due to the considerable worth of the jewellery items. However, the court allowed the claimant to adduce evidence to establish a strong prima facie entitlement to the property and ascertain if there was any rival claimant.

3. Interpretation and Application of Section 451 Cr.P.C. in Light of Precedents
The court extensively discussed the interpretation of Section 451 Cr.P.C. by referring to various precedents, including *Sunderbhai Ambalal Desai v. State of Gujarat*, *Thomas Koshy v. State of Kerala*, and *Basavva Kom Dyamogouda Patil v. State of Mysore*. The court emphasized that the power under Section 451 Cr.P.C. should be exercised promptly to avoid the property being kept in police custody for extended periods. The court noted that the guidelines in *Sunderbhai Ambalal Desai* should be supplemented with additional points to address specific situations involving the release of money and jewellery. These additional points included considering the nature of the property, the necessity of recording evidence, and the potential impact on the trial.

The court clarified that the guidelines in *Sunderbhai Ambalal Desai* were not exhaustive and could be supplemented to meet the ends of justice. The court specified that currency notes could be returned if the claimant established a prima facie right, and in cases involving jewellery, the court should take extra precautions to verify the claimant's entitlement. The court concluded that conditions for the return of property should be tailored to the facts of each case, and unnecessary restrictions should not be imposed.

Conclusion:
The court upheld the condition of furnishing a bank guarantee but allowed the claimant to present evidence to establish entitlement to the property. The trial court was directed to consider whether the jewellery was stock in trade and to decide on the necessity of producing the articles in the same condition. The matter was to be disposed of expeditiously within one month. The court's decision aimed to balance the need for securing the property with the claimant's right to utilize it for business purposes.