RAJU BABULAL SHINDEVERSUSTHE STATE OF MAHARASHTRA AND OTHERS...Mr. Ravindra v. Gore
Facts
1 919-CrWP-812-23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 812 OF 2023RAJU BABULAL SHINDEVERSUSTHE STATE OF MAHARASHTRA AND OTHERS...Mr. Ravindra V. Gore, Advocate for Petitioner;Mr. S. M. Ganachari, A.P.P. for Respondent No.1...CORAM: SACHIN S. DESHMUKH, J.DATE: 12-09-2025PER COURT:-1.Heard learned counsel for the petitioner and the learnedAssistant Public Prosecutor for respondent No.1.2.Petitioner raises challenge is confined to clause 3(i) of thejudgment and order rendered by the learned Additional SessionsJudge, Aurangabad, in Criminal Revision No.36 of 2022, dated27.03.2023. 3.At the instance of the petitioner, Crime No.79 of 2021 isregistered with Sillod City Police Station, District Aurangabad, forthe offences punishable under Sections 420, 417 and 406 readwith Section 34 of the Indian Penal Code. Pursuant thereto, arrestof the accused was effected by the concerned Investigating Officerand was produced before the learned Judicial Magistrate FirstClass, Sillod, District Aurangabad. 2 919-CrWP-812-23.odt4.During the course of the investigation, an amount ofRs.3,84,155/- was recovered from the accused person. Precededby same, the petitioner presented Criminal MiscellaneousApplication No.459 of 2021 before the learned Judicial MagistrateFirst Class, Sillod, under Section 457 of the Code of CriminalProcedure, 1973 (for short, “Cr.P.C.”) seeking interim custody ofthe amount seized. The learned Judicial Magistrate rejected theapplication.5. Raising challenge to the same, the petitioner preferredCriminal Revision No.36 of 2022. Learned Additional SessionsJudge, Aurangabad allowed the criminal revision application bysetting aside the order of the learned Judicial Magistrate.However, a stipulation in sub-clause (i) of clause (3) of theimpugned order, it was directed that the Incharge Officer of SillodCity Police Station shall handover the interim custody of seizedamount of Rs.3,84,155/- upon furnishing bank guarantee in the likeamount till conclusion of the trial. 6.As such, the petitioner has assailed aforesaid stipulationmandating furnishing of bank guarantee.7.The learned counsel for the petitioner contends that theprocedure as laid down in relation to the currency notes as hasbeen laid down by the Honourable Apex Court in the case ofSundarbhai Ambalal Desai versus State of Gujarat, 2003
Legal Reasoning
4 919-CrWP-812-23.odtremaining unused or by its misappropriation.2. Court or the police would not be required to keep thearticle in safe custody;3. If the proper panchnama before handing overpossession of the article is prepared, that can be usedin evidence instead of its production before the Courtduring the trial. If necessary, evidence could also berecorded describing the nature of the property in detail;and4. This jurisdiction of the Court to record evidence shouldbe exercised promptly so that there may not be furtherchance of tampering with the articles.10. To avoid such a situation, in our view, powers underSection 451 Cr.P.C. should be exercised promptly and atthe earliest. Valuable Articles and Currency Notes.11. With regard to valuable articles, such as, golden orsliver ornaments or articles studded with preciousstones, it is submitted that it is of no use to keep sucharticles in police custody for years till the trial is over. Inour view, this submission requires to be accepted. Insuch cases, Magistrate should pass appropriate orders ascontemplated under Section 451 Cr.P.C. at the earliest.12. For this purposes, if material on record indicatesthat such articles belong to the complainant at whosehouse theft, robbery or dacoity has taken place, thenseized articles be handed over to the complainant after:-(1) preparing detailed proper panchnama of sucharticles:(2) taking photographs of such articles and a bondthat such articles would be produced if required at thetime of trial; and(3) after taking proper security.
Arguments
3 919-CrWP-812-23.odtAIR SC 638, while exercising the power under Section 451 of theCr.P.C. is not adhered with. The appropriate procedure, was toprepare detailed panchnama of the seized currency notes,supported by photographs and then release property uponadequate security instead of insisting bank security. As such,impugned stipulation incorporated in the order deserves to bequashed and set aside and same may be modified as laid down bythe Honourable Apex Court in the aforesaid case.8.Per contra, the learned A.P.P. supported the impugned orderand prayed for dismissal of the petition. 9.Having heard the learned counsel for the litigating sides andconsidering the principles laid down by the Honourable Apex Courtin the case of Sundarbhai (supra) and judgment of this Court. Inthe case of Writer Business Services Private Limited versusState of Maharashtra and others, 2021 All M R (Cri.) 4199,wherein the observations made by the Honourable Supreme Courthave been reproduced as under:-“9. The Hon'ble Supreme Court in the case of SunderbhaiAmbalal Desai Vs. State of Gujarat, reported in (2002) 10Supreme Court Cases 283, in paragraph No. 7, 10, 12, 13 &14 has held as under :-"7. In our view, the powers under Section 451 Cr.P.C.should be exercised expeditiously and judiciously. Itwould serve various purposes, namely:1. Owner of the article would not suffer because of its
Decision
5 919-CrWP-812-23.odt13. For this purpose, the Court may follow theprocedure of recording such evidence, as it thinksnecessary, as provided under Section 451 Cr.P.C. The bondand security should be taken so as to prevent the evidencebeing lost, altered or destroyed. The Court should see thatphotographs of such articles are attested or countersignedby the complainant, accused as well as by the person towhom the custody is handed over. Still however, it wouldbe the function of the Court under Section 451 Cr.P.C. toimpose any other appropriate condition.14. In case, where such articles are not handed overeither to the complainant or to the person from whom sucharticles are seized or to its claimant, then the Court maydirect that such articles be kept in bank lockers. Similarly,if articles are required to be kept in police custody, itwould be open to the SHO after preparing properpanchnama to keep such articles in a bank locker. In anycase, such articles should be produced before theMagistrate within a week of their seizure. If required, theCourt may direct that such articles be handed back to theInvestigating Officer for further investigation andidentification. However, in no set of circumstances, theInvestigating Officer should keep such articles in custodyfor a longer period for the purposes of investigation andidentification. For currency notes, similar procedure can befollowed."10. In view of the above directions issued by the Hon'bleSupreme Court in the case of Sunderbhai Ambalal Desai(supra), the said amount seized/recovered by the police fromthe respondent Nos.2 to 4 during the course of investigationcan be returned to the Petitioner, subject to condition that thePetitioner at its own cost will take colour photographs of thesaid cash amount. A detailed description of the said cashamount is given in tabular form in para no.7 of the Application 6 919-CrWP-812-23.odtdated 1st March 2021 filed before the Trial Court (page nos.79& 80 to the Petition). The said photographs of the cash amountwill be produced before the Trial Court at the time of trial.”10.Thus, this Court finds that the contentions raised by thepetitioner are supported by the statement of law declared by theHonourable Apex Court and followed by this Court, in the case ofWriter Business Services Private Limited (supra), in the lightof the aforesaid directions issued by the Honourable Apex Courtand applying the ratio, the amount seized by the police from theaccused during the course of investigation can be returned to thepetitioner, subject to condition that the petitioner at its own costwill take the colour photographs of the said cash amount. Adetailed description of the said cash amount along with specifyingdenomination of currency notes in a tabular form and to be filedbefore the trial Court. The photographs of the cash amount shallbe produced before the trial Court at the time of trial.11.Accordingly, the following order:-(i)The impugned judgment and order by the learned AdditionalSessions Judge, Aurangabad, in Criminal Revision No.36 of2022, dated 27.03.2023, to the extent of clause 3[i] of theorder, is hereby quashed and set-aside.(ii) The Investigating Officer, Sillod City Police Station, DistrictAurangabad, is hereby directed to return cash amount ofRs.3,84,155/- to the petitioner. Upon the petitioner furnishing 7 919-CrWP-812-23.odtan indemnity bond before the Trial Court undertaking that, incase, at the end of trial if the Trial Court directs, the petitionerwill deposit the said amount. (iii)The Investigating Officer shall take colour photographs of allthe seized currency notes and the one set of which shall befiled before the Trial Court, so also one set before theconcerned police station with which present crime isregistered. Petitioner shall also retain one set of colourphotographs of all currency notes for the purpose of trial andpetitioner shall bear the cost of same. 12. The criminal writ petition is allowed in above terms. [SACHIN S. DESHMUKH, J.] JUDGErrd