Kanhaiya Rai and Ayodhya Rai vs State of Bihar and Others

S.B. Sanyal, J.—These two writ petitions arise out of the proceedings taken u/s 457 of the Code of Criminal Procedure for release of the licensed guns of the petitioners seized in a criminal case initiated against the petitioners u/s 307 of the Indian Penal Code.

The moot question is: Whether the trying court is empowered to deal with the release of goods on the basis of report of seizure and production of seizure list marked exhibit in the case at the end of the trial, even though the seized goods were not physically produced before it.

It appears that the licensed guns of the petitioners were seized by the police. The petitioners faced Sessions trait which ended in conviction by the 5th Additional Sessions Judge, Arrah, against which the petitioners came up in Cr. Appeal No. 447 of 1981 and the judgment of the learned Sessions Judge was upheld with slight modification in the sentence. In the Sessions trial, the seizure list of the guns was marked as exhibit, but there was no physical production of the guns. The guns are stated to have been used in the commission of the offence. The 6th Additional Sessions Judge did not pass any order with respect to the guns in question nor any prayer for the release of the guns was made before the trying court. After the conclusion of the trial the petitioners moved the court of the Chief Judicial Magistrate, where the guns were produced by the police along with the seizure list, on the ground that since the physical production of the guns was before the Chief Judicial Magistrate, the Chief Judicial Magistrate is empowered to deal with the disposal of the property, and for their delivery to the persons entitled to. It was stated that the licenses of the petitioners were renewed from time to time, and they arc competent to take possession of the guns and to hold them. The Chief Judicial Magistrate refused to release the guns on the ground that he, being not in season of the matter, was unable to pass an order for the disposal of the guns, as against which a revision was taken before the Sessions Judge and the learned Sessions Judge held that the proper forum for the prayer is before the trial court and not the criminal court.

Learned counsel for the petitioners submitted that as the guns were never produced before the trial court, learned Chief Judicial Magistrate erred in law in refusing to exercise jurisdiction vested in him. According to the learned Counsel, in terms of Section 457 of the Code of Criminal Procedure, the learned Chief Judicial Magistrate was the proper court who should have passed an order, as the guns were produced before him. Learned counsel has relied on a decision in Ram Parkash Sharma Vs. State of Haryana, in support of his contention that even if the matter of seizure is reported to a court, but not yet produced before the court, such court has the power under the scheme of the Act to release the property subject to other constraints.

Mr. Jaiswal appearing on behalf of the State submitted that the learned Sessions Judge has rightly concluded that the remedy of the petitioners is not before the court of the Chief Judicial Magistrate, inasmuch as after conclusion of the trial, the court which as entitled to decide the matter of release is the court which concluded the trial. In short, according to the learned Counsel, the prayer of the petitioners can only be entertained u/s 452 of the Code of Criminal Procedure.

The crux of the question is: what is the import of the words ''produced before it'' in Section 452 of the Code of Criminal Procedure. The question is whether the words produced before it will include the production of the production list and/or seizure list before the court. Somewhat similar situation arose in the case of Kanhai Lal Bhagats v. The State of Bihar and Ors. 1976 BBCJ 15. A Bench of this Court while considering the words ''it may be produced u/s 6-A of the Essential Commodities Act'' held:

It cannot be conceived that the intention of Parliament was that, before the power under that section could be exercised, the seized foodgrains, which might weigh several thousand quintals in some cases, have to be physically produced before the Collector. In my view, this does not mean physical production of the articles in question in every case: what it means is that the seizure of the articles in question should be reported to the Collector of the district....

Even in regular criminal cases, it cannot be always possible for the physical production of the goods seized say under the Wild Life Act if a Warder comes across a decomposed hunted wild tusker which is seized and a case thereafter is instituted and the seizure list is produced in Court, cannot the Court order for disposal of the seized goods on the basis of She seizure list or will the Court insist that the decomposed wild animal should be physically produced before it in order to be conferred with the jurisdiction to deal with the disposal of the seized goods. There may be situation and situation where the physical production may or may not be possible. It is not, however, the question of practicability of the production.

The legal question is whether the report of the seizure and/or production of seizure list of the goods seized in the court subserves the mandate of the section requiring production of goods. In the case of Ram Prakash Sharma (supra), the Supreme Court held that the court exercising jurisdiction u/s 457 oi the Code of Criminal Procedure is possessed of the power to release a property seized by a police, even though not produced before the court merely on the basis of a report to the court of seizure of the goods. In this connection reference can also be made to a decision in Smt. Basava Kom Dyamogouda Patil Vs. State of Mysore and Another, , Fazal Ali, J. speaking for the court observed while dealing with the old Section 51.7 of the Code of Criminal Procedure that

A production before the Court does not mean physical custody or possession by the Court but includes even control exercised by this Court by passing an order regarding the custody of the articles....

In the said case under the orders of the Court the goods remained in the custody of the Sub-Inspector.

In nay opinion, on a report of a seizure to the Court and/or production of the seizure list, the Court assumes full control of the seized goods and is conferred with the jurisdiction to deal with the matter of custody and disposal of the goods so seized. In the instant case, the seizure list of the goods was produced before the trying court which means the court was not only informed about the seizure of the goods, but the court retained control over the goods, as the seizure list was marked as an exhibit in the case itself. Therefore, merely because there is no physical production of the goods the court is not deprived of the power to deal with the seized goods u/s 452 of the Code of Criminal Procedure in ordering disposal of the seized goods.

The next question that arises in the case is: after the conclusion of trial in which the seizure list of the goods was marked as exhibit, is the court of Chief Judicial Magistrate where the goods were physically produced leading to the commitment of the case to the court of Session, retains jurisdiction to deal with the matter of disposal of the goods. In my opinion, in a case where the goods were the subject-matter of trial, the jurisdiction vests in the court which held the trial. The word court'' referred to in Section 452 will mean the trying court. Section 452, Cr. P.C. envisages an order to be passed by the trial court for disposal of the property at the conclusion of the trial. Therefore, the said provision is the appropriate provision to deal with the matter of disposal of the property which is the subject-matter of said trial. Had the seizure list been not produced nor reported to the trying court at all, the Magistrate before whom the seized goods were produced or the seizure was reported could have passed an order of disposal of the seized goods.

As I have already held, production of the seizure list in the criminal court subserves the requirement of physical production of the goods seized, the petitioners ought to have moved the trying court for passing an appropriate order u/s 452(1) either to destroy the goods or to confiscate the same or to deliver it to a person claiming to be entitled to the possession thereof. It is, however, open to the Court of Session instead of dealing with the matter itself, to direct the Chief Judicial Magistrate u/s 452(3), Cr. P.C. to deal with the matter in the mode and manner provided under Sections 457, 458 and 459 of the Code of Criminal Procedure 1 may add that merely because the trial has been concluded long before, the jurisdiction of the trying court to deal with the matter is not affected in any way since such an order can be passed even after the disposal of the case. Lapse of time does not deprive court of jurisdiction to pass order on a petition for disposal of the seized goods See Deopujan Mahto Vs. Kukur Ahir, .

In the result, the writ petitions are dismissed with the aforesid directions and observations.