JUDGMENT
S.K. Kar, J.
1. This is a petition under Sections 397, 401 read with Section 482 of Cr.PC directed against the Order dated 21.11.2002 passed by the Additional Chief Judicial Magistrate, Morigaon, in connection with G.E. Misc Case No. 770 of 2002 (Mikirbheta P. S. Case No. 112 of 2001).
2. The petitioner, Sri Jiten Gohain stated that he made a prayer to release seized money of Rs. 50,000, which was seized from his possession by the police, but it was rejected by the learned Magistrate. The impugned order goes as follows :
“21.11.2002
ORDER
Seen prayer for zimma of Rs. 50,000 by the accused Jiten Gohain. Heard both sides. Perused case record and found the materials which has been used for the commission of the offence Under Section 420/109/489(B) of IPC. Hence prayer of the accused at this stage of investigation rejected.
Sd/- Illigible
Addl. C.J.M.
Morigaon.”
3. The petitioner contends that he and his wife went to Kulahati Charali near Baribazar and was called upon by one Sukleswar Deuri and his wife and after certain discussions, he was introduced to one Md. Samsul Hazarika, who received a sum of Rs. 50,000 from him and handed over a bag containing a tin. The petitioner suspects some foul play and on opening the tin, found that it was full of paddy husk. He immediately chased Md. Samsul Hazarika and caught him along with money that was delivered to him by the petitioner. The articles and the money were seized by the police thereafter from him. The petitioner contends that the money belongs to him and was seized from his possession and accordinly he is entitled to get custody of the same as per provision of Section 451 of the Cr.PC.
4. Connected case records along with case diary were called for and forwarded and I perused the same. The materials in the case diary will reveal that there was a deal to be performed between the present petitioner and the accused Md. Samsul Hazarika to exchange fake currency against genuine currency notes, but in the pr6cess, the present petitioner suspected bona fide of Md. Samsul Hazarika and chased him and recovered money amounting to Rs. 50,000. That present petitioner handed over to him the sum in exchange of fake currency of one lakh, but soon after opening the tin, instead of money, he found it contained paddy husk and accordingly chased, caught hold of Md. Samsul Hazarika and recovered cash from him. There is nothing on record to show that Md. Samsul Hazarika claimed the money.
5. The learned counsel appearing for the petitioner referring to a law pronounced by the Hon’ble Apex Court and reported in Sunder Bhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638 submited that any property seized during investigation is to be disposed of promptly and such articles are not to be kept for long time and in any case, not more than fiffeen days to one month in the custody of police.
6. The learned Apex Court while disposing such a petition held as follows :
“In our view, the powers under Section 451 Cr.PC 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 receded describing the nature of the property 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.”
7. In the instant csae, there are four accused persons including the present petitioner. The impugned order was passed in connection with a Misc. Case No. 770/02. The record of which not being forwarded (which was also not specifically called for), it cannot be ascertained what procedure was followed before passing of the impugned order. However, a reading of the impugned order dated 21,11.2002 will show that simply the petitioner was heard and without giving notice to the other persons, the prayer was rejected on the ground that a ‘zimma’ of the money should not be given to any person at that stage of investigation. If we go by the letters of spirit of Section 451, Cr.PC, it will be seen that when any property is produced before any criminal Court during any enquiry or trial, the Court may make such order as it deems fit and proper for custody or such property pending conclusion of the enquiry or trail. The only precaution that is to be taken by the Trial Court is to ensure, while disposing such petition that all the concerned persons were duly intimated. From the facts given in the instant case, it is seen that Md. Samsul Hazarika and other co-accused persons may have some claim over the money seized, although, the petitioner-accused, Sri Jiten Gohain has claimed this money as belonging to him. The impugned order does not disclose that notices were given to all concerned and parties were heard before disposal of the petition made Under Section 451 Cr.PC, which is not proper exercise of power and is thus a case of non-exercise of jurisdiction. It was held in case laws cited (supra) which does as follow :
“For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451, Cr.PC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of 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.PC to impose any other appropriate condition.”
8. In any case, Court can not withheld disposal of the property under the provision of Section 451 of the Cr.PC.
9. Accordinly, petition is allowed setting aside of the impugned order dated 21.11.2002.
10. It is hereby directed that the matter is to be enquired afresh after giving proper opportunity to the investigating authority, informant and all concerned including accused persons. Thereafter appropriate order will be passed by way of disposal of the seized property (here currency note).
11. The exercise is to be completed as early as possible, preferably within 15 (fifteen) to 30 (thirty) days on receipt of the case record along with the copy of this order.