K.Narayan, J. - (1.) This revision has come up in rather peculiar circumstances. A recovery of various amounts in cash and some stock of medicines was shown to have been made from the possession of various accused being prosecuted for offences under Sections 380, 411, 457 Indian Penal Code by the police. The complainant or informant applied for custody of the same and that was allowed by order dated 10.9.92 rendered by the Chief Judicial Magistrate, Banda. Of course, conditions were attached for getting the amount produced but that is not material for the purpose of prayer. Raj Kumar Gupta went up in revision which was allowed by the Special Judge (E.C. Act) Banda by his order dated 3.1.1994. The Special Judge, setting aside the order of CJM, Banda directed the application to be decided afresh in the light of observations made in the body of the judgement. Aggrieved by the order, the complainant Govind Kumar Pahadia has come to this court by way of a revision against the order of the Sessions Judge. After having heard the learned counsel for both the parties and having gone through the two judgements of the Magistrate and the Sessions Judge, I feel constrained to say that none of the two courts were correct in their approach in the matter of custody. There has been a controversy before me as to whether a charge sheet has been submitted by the date of the order or not. But to my mind that is absolutely uncalled for. The authority of the court in the matter of disposal of property flows from Section 451 and 452 Criminal Procedure Code Section 452 obviously is not invited as that applies to the stage of conclusion of the trial and the provision of Section 451 alone will be material. Though it was urged that it covers the cases of production of property during enquiry or trial, these words have to be seen in a wider perspective. In order to properly appreciate the merit of the word 'Enquiry' used in Section 451, even the definition may not be enough. Enquiry as defined under Section 3(g) of the Code means every enquiry other than trial conducted under the Code by a Magistrate. This has to be read with Section 102 of the Code which authorises a police officer to seize certain properties. This section may be better reproduced here:- "102. Power of Police Officer to seize certain property:- (1) Any police officer may seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police officer, if subordinate to the officer in charge of a station, shall forthwith report the seizure to that officer. (3) Every police officer acting under sub-section (1), shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the court as to the disposal of the same." It is the superiority of law court that the Magistrate is to be informed immediately of the seizure and he has to act as a custodian but has to deal with it as a court and also as authority to give custody thereof to any person. In fact the right to give the seized property in custody of somebody has also been given to the police officer himself depending upon the transportability of the property seized. Thus production before the Magistrate is not dependant upon the submission of charge sheet and therefore, the impression of the courts below that since the charge sheet was not there, the authority under Section 451 Criminal Procedure Code could not be exercised was rather misplaced.
(2.) The question is as to what is the principle in general for permitting the custody. If it is not transportable, as mentioned above, then the police officer can give it in custody of somebody. If it is really produced before the court, the court is to deal with it and in view of the words of Section 451, it has to be given in custody of somebody, if it is subject to speedy and natural decay. On the other hand if it is otherwise expedient so to do, a Magistrate may order it to be sold or otherwise disposed of. The wordings of Section 451 Criminal procedure Code are wide enough to cover any disposal of property, but that has to be in consonance with the requirement in respect of the seized properties. A cash amount is neither liable to decay nor there could be any occasion for difficulty in keeping the same, may be with the bank or with Treasury or even in Malkhana of the police, where is the necessity for giving it to any party or the other? Magistrate are not Civil Courts to decide the matter of custody on the basis of the prima facie case and convenience etc. whenever property is seized, either it is a stolen property or it is an evidence in the case itself. The value of medicines as a stolen property, could be retained by noting their Batch number etc. and to save the property from expiring, they could be sold to retailer under the orders of the court and proceeds retained but so far as cash was concerned, there could not be any occasion for giving it in custody of any person. It was urged during the arguments that the currency notes or the slips pasted over them had signatures or initials of the complainant to show his ownership. There is some reference in this behalf in the orders of the court below also. It is strange that in the face of such facts, if they were true, the complainant has insisted for return of cash to him. The existence of those signatures or initials on property recovered from the accused, might have been piece of evidence in the case which unfortunately has been washed out by the complainant and unfortunately with the help of the order of the Magistrate, Be it whatever if may, it can be safely concluded that the order of the magistrate in directing the transfer of custody of the currency notes was not justified and the order of the Sessions Judge in simply making an order of remand was also not good enough. The proper course would have been to retain the property in so far as cash is concerned and to let the medicines be sold to a retailer having licence and keep that money in the custody of the court. Of course, the medicines could be sold or allowed to go out of the possession the Court after noting necessary details through which it could be connected with any documents that may be produced by the complainant or accused to show their ownership in respect of the said medicine. If that be not possible, the medicines may be retained, as the more material part of the court is the use of matter before it as evidence and not preservation of the property. In view of the observations made above, this revision succeeds and exercising jurisdiction under Section 482 Criminal Procedure Code, it is directed that the Magistrate shall get the cash given in custody of the complainant produced in his court and deal with the cash as well as the medicines in the light of the observations made above. It may be made clear that in case the same currency notes or bundles are not available the equal amount thereof shall be got produced. The cash amount, if they are not the original notes and bundles shall be kept in some bank. The revision is disposed of accordingly. Revision Allowed.;