Kirubanidhi v. State by Inspector of Police, N1, Royapuram Police Station, Chennai – 600 013 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 22.12.2011CORAMTHE HONOURABLE MR.JUSTICE C.T.SELVAMCrl.R.C.No.1201 of 2010Kirubanidhi..PetitionerVs1.State by Inspector of Police, N1, Royapuram Police Station, Chennai – 600 013. Crime No.380 of 20102.R.A.Duraipandian..RespondentsCriminal Revision filed under sections 397 and 401 of CriminalProcedure Code praying to call for the records and set aside theorder passed by the learned XVI Metropolitan Magistrate, George Town,Chennai, in Crl.M.P.No.1216 of 2010 dated 11.10.2010 in Crime No.380of 2010 pending on the file of the respondent and direct the 1strespondent to remove the seal and also direct the learned XVIMetropolitan Magistrate, George Town, Chennai, to hand over the keybearing Door No.10B, G.A.Road, 4th Lane, Old Washermenpet, Chennai –600 021, which was deposited by the 1st respondent in Cr.No.380 of2010 to the petitioner.For Petitioner :Mr.C.D.JohnsonFor Respondent 1:Mr.A.N.Thambidurai, APPO R D E RThis revision arises against the order of the learned XVIMetropolitan Magistrate, George Town, Chennai, in Crl.M.P.No.1216 of2010 dated 11.10.2010.2. The petitioner is the owner of the premises in which goodscomprising of food packets, biscuits, chocolates, cosmetic items etc.were stored and in respect of which a case stands registered by thefirst respondent in Crime No.380 of 2010 for offence under sections273, 420 IPC r/w section 27 of Drugs and Cosmetics Act. The tenantof the petitioner is the accused in such case. While causing arrestof such tenant/accused, the first respondent seized the offendingmaterials by locking and sealing the rented portion of the property.The representation of the petitioner made to the first respondent on https://hcservices.ecourts.gov.in/hcservices/

15.06.2006 to hand over the vacant possession by removing thematerials went unheeded. The petitioner also informed that Form-95was submitted before the Court below by the first respondent and arequest was made to inspect the property on 10.06.2010 pursuant towhich the learned Magistrate passed an order directing the 'B'property clerk to inspect the godown and report. The 'B' propertyclerk inspected the godown on 15.07.2010, sealed the premises andhand over the keys to the Magistrate on the same day. The petitionermoved W.P.No.13746 of 2010 seeking a direction to the firstrespondent to remove the seal that had been put on his premises andrestore possession of the same after removal of the materials thathad been confiscated in connection with Crime No.380 of 2010. Thepetitioner informed that under orders dated 19.07.2010, such WritPetition was closed with a direction to work out his remedies beforethe Magistrate. Informing the above, the petitioner has movedCrl.M.P.No.1216 of 2010 seeking a direction for production of seizedmaterials before the Court and handing over vacant possession and keyto the petitioner. Such petition was dismissed by the order underchallenge.3. The Court below observed that the petitioner may collectrents for the property from his tenant and though it had ample powersto deal with case property u/s.451 Cr.P.C., the present was apeculiar case where the property was expired goods and injurious tohuman beings and therefore, the same could not be given to anybodyfor interim custody by invoking the provision u/s.451 Cr.P.C.Holding that it was necessary to keep the case property for safecustody, the petition was dismissed.4. Heard learned counsel for the petitioner and learnedAdditional Public Prosecutor.5. The premises belonging to the petitioner have been keptlocked at the instance of the first respondent since 01.05.2010. Thegoods seized in connection with Crime No.380 of 2010 have not beenproduced before the Court below. It would but have been proper forthe first respondent to seek appropriate directions in keeping withSections 457, 458 and 459 Cr.P.C. Such sections read as follows:"457. Procedure by police upon seizure of property. -(1)Whenever the seizure of property by any police officer isreported to a Magistrate under the provisions of this Code,and such property is not produced before a Criminal Courtduring an inquiry or trial, the Magistrate may make suchorder as he thinks fit respecting the disposal of suchproperty or the delivery of such property to the personentitled to the possession thereof, or if such person cannotbe ascertained, respecting the custody and production ofsuch property. https://hcservices.ecourts.gov.in/hcservices/ (2)If the person so entitled is known, the Magistrate mayorder the property to be delivered to him on such conditions(if any) as the Magistrate thinks fit and if such person isunknown, the Magistrate may detain it and shall, in suchcase, issue a proclamation specifying the articles of whichsuch property consists, and requiring any person who mayhave a claim thereto, to appear before him and establish hisclaim within six months from the date of such proclamation.458. Procedure when no claimant appears within six months.(1)If no person within such period establishes his claim tosuch property, and if the person in whose possession suchproperty was found is unable to show that it was legallyacquired by him, the Magistrate may by order direct thatsuch property shall be at the disposal of the StateGovernment and may be sold by that Government and theproceeds of such sale shall be dealt with in such manner asmay be prescribed.(2)An appeal shall lie against any such order to the Court towhich appeals ordinarily lie from convictions by theMagistrate.459. Power to sell perishable property.-If the person entitled to the possession of such propertyis unknown or absent and the property is subject to speedy andnatural decay, or if the Magistrate to whom its seizure isreported is of opinion that its sale would be for the benefitof the owner, or that the value of such property is less thanfive hundred rupees, the Magistrate may at any time direct itto be sold; and the provisions of sections 457 and 458 shall,as nearly as may be practicable, apply to the net proceeds ofsuch sale."6. For the fault of the first respondent in not having obtainedappropriate directions towards disposal of the goods, the petitionerwho is the owner of the property, cannot be made to sufferinterminably. Even in passing the order under challenge the Courtbelow has failed to see that u/s.451 Cr.P.C., it was open to it todirect the goods to be sold or otherwise disposed of if the same issubject to speedy and natural decay or if it is otherwise expedientso to do. It is nobody's case that the goods seized are hazardous ordangerous substance. It would be in the fitness of things to directthe first respondent to move the Court below for a fresh orderu/s.451 Cr.P.C. The Court below shall after recording such evidenceas it thinks necessary direct the seized articles to be disposed of.In recording any evidence, the Court below may follow the procedureindicated in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003Supreme Court 638).7. Given the circumstances of the case, the Court below beforepassing order shall also cause notice to the accused in the case andascertain if such person has any claim. In the event of his having https://hcservices.ecourts.gov.in/hcservices/ any claim, he shall be required to forthwith remove the articles. 8. In the result, the Criminal Revision is allowed and the orderof the learned XVI Metropolitan Magistrate, George Town, Chennai, inCrl.M.P.No.1216 of 2010 dated 11.10.2010, is set aside.The Courtbelow is directed to hand over the keys to the petitioner aftereffecting compliance with the above, not later than one month of thereceipt of this order. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrargmTo1.The XVI Metropolitan Magistrate, George Town, Chennai.2.-Do- thro'the Chief Metropolitan Magistrate, Egmore, Chenani -8.3.The Inspector of Police, N1, Royapuram Police Station, Chennai – 600 013.4.The Additional Public Prosecutor, High Court, Madras.Copy to:The Section Officer, Criminal Section , High Court, Madras - 104.1 cc to Mr.C.D.Johnson , Advocate, Sr.No.78471/11Crl.R.C.No.1201 of 2010sv(co)pmk.18.1.2012