State of U.P. vs Party(s)

1. Heard learned counsel for applicant and learned AGA for State.

2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been preferred against order dated 22.01.2021, passed by learned Additional District and Sessions Judge, Court No.17, Muzaffarnagar in S.T. No.439 of 2016 (State Vs. Mehraj and others), whereby the application filed by applicant for release of case property in Supurdgi has been rejected.

3. Learned counsel for applicant submitted that applicant is owner of Furnace Factory and that on 15.12.2015 some miscreants have committed dacoity in the said factory and various articles were robbed. Later, said articles were recovered by the police vide Case Crime No.1152 of 2015. It was stated that the aforesaid case is pending since the year 2016. Earlier, the application of applicant for release of recovered articles was rejected by the court concerned in the year 2016. Thereafter, applicant has moved another application in the year 2021 for release of case property but the same has been rejected by the trial court vide impugned order dated 22.01.2021, by holding that some of the prosecution evidence is yet to be led. It was submitted that the articles robbed from the factory of the applicant are lying in the maalkhana of police station since 2015 and in case the same are not released, they would be damaged. Referring to case of Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 SCC 283, it was submitted that impugned order is against law and thus, liable to be set aside.

4. Learned AGA has submitted that appropriate direction may be made regarding release of the case property as per law. 2 NA528 No. 34373 of 2025

5. I have considered the submissions and perused the record.

6. In the case of Sunderbhai Ambalal Desai (Supra), the Apex Court has held as under: "In our view, 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. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, 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 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." The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. Valuable Articles and Currency Notes 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 3 NA528 No. 34373 of 2025 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. 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 articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SIIO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification, However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed."

7. In the instant matter it is apparent from record that said articles are lying in the maalkhana of police station since 2015. It appears that learned Additional District and Sessions Judge has not considered the position of law while rejecting the application of applicant. The application of applicant has been rejected merely on the ground that some of prosecution evidence is yet to be led. In view of law laid down in aforesaid case, it cannot be a sufficient ground to reject the application of applicant, particularly when the articles are lying seized since the year 2015.

8. In view of aforesaid, the impugned order dated 22.01.2021 is set aside and the matter is remanded back to the trial court concerned to pass an order afresh expeditiously in accordance with law.

9. With the aforesaid observations, the application under Section 528 BNSS is disposed of. September 24, 2025 CS/- (Raj Beer Singh,J.) CHANDAN SINGH High Court of Judicature at Allahabad

1. Heard learned counsel for applicant and learned AGA for State.

2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been preferred against order dated 22.01.2021, passed by learned Additional District and Sessions Judge, Court No.17, Muzaffarnagar in S.T. No.439 of 2016 (State Vs. Mehraj and others), whereby the application filed by applicant for release of case property in Supurdgi has been rejected.

3. Learned counsel for applicant submitted that applicant is owner of Furnace Factory and that on 15.12.2015 some miscreants have committed dacoity in the said factory and various articles were robbed. Later, said articles were recovered by the police vide Case Crime No.1152 of 2015. It was stated that the aforesaid case is pending since the year 2016. Earlier, the application of applicant for release of recovered articles was rejected by the court concerned in the year 2016. Thereafter, applicant has moved another application in the year 2021 for release of case property but the same has been rejected by the trial court vide impugned order dated 22.01.2021, by holding that some of the prosecution evidence is yet to be led. It was submitted that the articles robbed from the factory of the applicant are lying in the maalkhana of police station since 2015 and in case the same are not released, they would be damaged. Referring to case of Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 SCC 283, it was submitted that impugned order is against law and thus, liable to be set aside.

4. Learned AGA has submitted that appropriate direction may be made regarding release of the case property as per law. 2 NA528 No. 34373 of 2025

5. I have considered the submissions and perused the record.

6. In the case of Sunderbhai Ambalal Desai (Supra), the Apex Court has held as under: "In our view, 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. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, 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 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." The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. Valuable Articles and Currency Notes 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 3 NA528 No. 34373 of 2025 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. 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 articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SIIO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification, However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed."

7. In the instant matter it is apparent from record that said articles are lying in the maalkhana of police station since 2015. It appears that learned Additional District and Sessions Judge has not considered the position of law while rejecting the application of applicant. The application of applicant has been rejected merely on the ground that some of prosecution evidence is yet to be led. In view of law laid down in aforesaid case, it cannot be a sufficient ground to reject the application of applicant, particularly when the articles are lying seized since the year 2015.

8. In view of aforesaid, the impugned order dated 22.01.2021 is set aside and the matter is remanded back to the trial court concerned to pass an order afresh expeditiously in accordance with law.

9. With the aforesaid observations, the application under Section 528 BNSS is disposed of. September 24, 2025 CS/- (Raj Beer Singh,J.) CHANDAN SINGH High Court of Judicature at Allahabad