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TMI Blog2023 (4) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. Present misc. petition is allowed. The impugned orders 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. - S.B. Criminal Misc(Pet.) No. 4344/2019 - - - Dated:- 20-4-2023 - HON'BLE MR. JUSTICE MANOJ KUMAR GARG For Petitioner(s) : Mr. Pradeep Shah For Respondent(s) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy; 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; 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. 8. The question of proper custody of the seized article is raised in number of matters. In Smt. Basayya Kom Dayamangouda Patil v. State of Mysore and Anr. : 1977 CriLJ1141 : 1977 CriLJ1141 , 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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. 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 artic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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