Petition under Section 451 of Cr.P.C.

District : South 24 Parganas.

In the Court of the Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas.

Bhangore Police Station Case no. 164 (5) 2012.

                                                                   In the matter of :

                                                                   State of West Bengal

___Complainant.

-          Versus –

Samsur Rahman & others

______Accused.

Petition under Section 451 of the Code of Criminal Procedure’ 1973.

The humble petition of the above named Accused Samsur Rahman, most respectfully;

Sheweth as under :

1.    That in the above referred case matter, the Charge Sheet has been submitted by Police on 31-05-2014, before the Learned Court. The said Charge Sheet submitted for the offences allegedly committed to be punishable under Section 399, 402 of I.P.C., and 25 (1B) (a) of Arms Act, and Section 13, and 14 of the Foreigners Act, against the four accused persons.

2.    That your petitioner is one of the accused person charge sheeted by Police in the above referred case matter. Your petitioner is on Court bail, as granted by the Learned Court.

3.    That your petitioner  states that the Investigating Officer  Seized from the possession of your Petitioner a sum of Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, in Cash, vide Seizure List dated 23-05-2012, corresponding to G.D. Entry no. 2058, dated 23-05-2012, of the Bhangore Police Station. The said seized sum of money of Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, in Cash, are lying with the Police Station in reference to the above referred case matter.

4.    That your petitioner states that the Charge Sheet being no. 437 of 2012, dated 20-12-2012, submitted by Police before the Learned Court, on 31-05-2014, does not contain and or reflect such facts of seizure under it’s column no. 11 of the said charge sheet, about the seizure of Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, in Cash, from the possession of your petitioner, and no story of such seizure has ever been whispered  under heading brief facts  of the case in the said Charge Sheet.

5.    That your petitioner states that your petitioner is an absolute owner of such sum of money amounting to Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, which has been seized from the possession of your petitioner by the Police as on 23-05-2012, in connection with the above referred case matter.

6.    That your petitioner states that your petitioner is in need and necessity of such money towards the use and expenses for his family members and in family necessity.

7.    That your petitioner states that recently RBI issued Circular being DCM ( Plg ) No. G-17/3231/10.27.00/2013-14, dated January 23, 2014, and Circular being no. DCM(Plg) No. G – 19/3880/10.27.00/2013-14, dated March’ 03, 2014, for Withdrawal of all old series of Banknotes issued prior to 2005, and for exchange of such bank notes, thereof, and thus in view of such circulars of RBI, pre 2005 Bank notes become of no use, as withdrawn by the RBI.

8.    That your petitioner states that in view of facts about necessity of such money to your petitioner and in view of facts about the exchange of bank notes in terms of circular issued by the RBI, this is much necessary that the Learned Court may intervene into the given circumstances and release such sum of money in terms of Section 451 of Cr.P.C. at any terms and conditions as the Learned Court may ascertain and or determine in the interest of administration of justice.

9.    That your petitioner states and submits that the relevant Sections 451 and 457 of Code of Criminal Procedure, which read as -

“451. Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and. if the property is subject to speedy and natural decay, or if it is otherwise  expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed
of.

Explanation-For the purposes of this section, “property” includes (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

457. Procedure by police upon seizure of property.-

(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.”

10.  That your petitioner states and submits  that Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as-

(1) for the proper custody pending conclusion of the inquiry or trial;

(2) to order it to be sold or otherwise disposed of, after recording
such evidence as it think necessary;

(3) if the property is subject to speedy and natural decay, to dispose
of the same.

11. That your petitioner states and submits that in view of the Judgment of Hon’ble Apex Court in Sunderbhai Ambalal Desai and C.M. Mudaliar – Versus State of Gujarat, AIR 2003 SC 638, 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 panchanama 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 properly 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.

12. That your petitioner states and submits that in Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, the Hon’ble Apex 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 it 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 inquiry 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. 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.”

13. That your petitioner states and submits that   in view of the Judgment of Hon’ble Apex Court in Sunderbhai Ambalal Desai and C.M. Mudaliar – Versus State of Gujarat, AIR 2003 SC 638, regarding Valuable Articles and Currency Notes, the Hon’ble Apex Court observed as -

“ With regard to valuable articles, such as golden or sliver 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.

For this purposes, 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 panchanama 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.

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 or 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. That your petitioner states and submits that in an event of an order of release of such sum of money of Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, made in favour of your petitioner, your petitioner undertake to comply with all the terms and conditions imposed and or directed by the Learned Court, in the interest of administration of justice.

15. That your petitioner states and submits that unless an order of release of such sum of money of Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, made in favour of your petitioner, your petitioner will be highly prejudice and suffer with irreparable loss and injury.

16. That your petitioner crave leave to produce relevant documents and or papers at the time of hearing of this petition, before the Learned Court.

17. That this petition is made bonafide and in the interest of administration of justice.

It is therefore prayed that Your Honour would graciously be pleased to release the seized sum of money of Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, in favour of your petitioner, and direct the Police of the Bhangore Police Station to handover such sum of money of Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, to your petitioner, at any terms and conditions as may be determine and or ascertain by your Honour, in the interest of administration of justice;

And or to pass such other necessary order or orders or further order or orders as your Honour may deem, fit and proper, for the end of justice.

And for this act of kindness, your Petitioner, as in duty bound shall ever pray.

Verification

I, Samsur Rahman, being the Charge Sheeted Accused no. 2, in the above referred criminal case matter of the state, made this petition under Section 451 of the Criminal Procedure Code’ 1973, for prayer of release of seized sum of Rs. 6,50,000/- ( Rupees Six Lakhs and Fifty Thousand ) only, and I am conversant with the material facts as stated in the forgoing paragraphs of my petition, and I Sign and verify this petition as on _______the day of _________2014, at Baruipur Criminal Court premises.

{ Samsur Rahman }

Read over, explained in Bengali languages,

and Identified by me,

Advocate.

Prepared in my Chamber,

Advocate

Date : __________________2014.

Place : Baruipur Criminal Court.