Allowed

V.Venkatesan v. State Rep.by

Madras HC27 Sept 2023CRL RC/1620/2023

Case brief

AI extract

What is this about?

High Court quashed conditions in a trial court order requiring a bond for defreezing a locker containing gold ornaments seized from the petitioner. The loot was not part of the prosecution case. The larger bench directed the bank to defreeze the locker and return the key unconditionally. The case was disposed of with the order to defreeze the locker No.14.

What did the court decide?

Conditions imposed for defreezing locker No.14 set aside; respondent directed to defreeze locker, return key to petitioner, and permit removal of jewels.

V.Venkatesan Vs State Rep.by — Criminal Trial and Appeal | Madras HC (2023)

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Crl.R.C.No.1620 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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CORAM

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DATED :27.09.2023

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THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

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Crl.R.C.No.1620 of 2023

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V.Venkatesan .. Petitioner/1^st accused

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/versus/

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1.State rep.by Inspector of Police, CBI/SPE/ACB, Chennai, R.C.No.26(A)/2014

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..1^st Respondent/ Complainant

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2.The Assistant Manager, Arakonam Co-operative Urban Bank ltd., Stuartpet Branch, Arakonam. .. 2^nd Respondent/ 2^nd Respondent

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Criminal Revision Case has been filed under Section 397 r/w 401 of Cr.P.C., to set aside the conditions imposed in Crl.M.P.No.4959 of 2023 in C.C.No.17 of 2015 dated 16.06.2023 against the petitioner pending on the file of the learned Principal Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai.

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For Petitioner :Mrs.G.Ramadhevi For Respondents :Mr.K.Srinivasan, Spl.PP for CBI

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O R D E R

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The petitioner herein is the first accused in C.C.No.17 of 2015 on the file of the Principal Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai. On completion of investigation, CBI has filed Final Report for prosecuting this petitioner and one Rabindrakumar Bhalotia. After taking the statement one N.Babu (approver), the Final Report indicates that tender was floated for purchasing brake equipments for Southern Railway and in the course of purchase order and payment, it is alleged that the petitioner herein has accepted bribe of Rs.30,000/- from the supplier (A2) and that money was deposited in the account of approver as per the direction of A1. In the course of investigation, the house of the petitioner was searched. Several incriminating materials were collected including key No.80 of locker No.14 in Co-operative Urban Bank Ltd., Stuartpet Branch, Arakonam. On permission of the Court, inventory for the materials kept in the locker was taken by the Investigating Officer and thereafter, the bank authorities was requested to freeze the operation of locker No.14 in the name of the petitioner herein. In the locker, the following eight items of gold ornaments were found along with one fixed deposit receipt No.5430.

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1	Gold Bangles	2 Nos.23.660 grams
2	Gold stoned bangles	2 Nos. 23.300 grams
3	One Gold Bracelet	19.300 grams
4	One Gold Stone Dollar Chain	42.600 grams
5	One Gold becklace	17.600 grams
6	One pair stone gold	8.500 grams
7	Four Pairs gold stoned kammal with jimiki	28.100 grams
8	Four pairs gold kammal	13.000 grams
	Total	176.060 grams

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In the Final Report, there is no whisper about the jewels or FDR found in the locker, which has now been freezed on the direction of the Investigating Officer.

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The petitioner had taken out the application under Sections 451 and 457 of Cr.P.C for return of the custody of the jewels kept in the locker, after defreezing the locker. The request has emanated from the petitioner on the eve of his daughter's marriage. The trial Court, after considering the application of the petitioner and the counter filed by the CBI and after recording the disclaim in the additional counter filed by the respondent, held that except RC 26(A)/2014 in C.C.No.17 of 2015, which is for the offence under Section 120B of IPC r/w Sections 7,12,13 (2) r/w 13(1)(d) of Prevention of Corruption Act,

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1988, there is no other case pending investigation against the petitioner and the jewels found in the locker No.14, which stands in the name of the petitioner herein in the Co-operative Urban Bank Limited, Arakonam, is no way connected with the prosecution case in C.C.No.17 of 2015. After observing so, the trial Court allowed the petition permitting defreezing of the locker on the following conditions:-

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(1)The 1^st respondent is hereby directed to take necessary steps to defreeze the locker No.14 stands in the name of the petitioner herein at Cooperative Urban Bank Ltd., Arakonam, in connection with SB A/c.No.1639 to enable the petitioner to operate the same on condition that the petitioner shall execute a bond worth Rs.8,00,000/- (eight lakhs only) by petitioner himself or through other surety.

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(2) The petitioner shall not alienate or sold over or sell the petition

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mentioned jewels till the disposal of the case.

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(3) The petitioner shall produce the petition mentioned jewels as and

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when required by the Court.

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This order dated 16.06.2023 is now challenged in the Revision

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Case on the ground that the prosecution has categorically placed before the trial Court that the articles found in the locker is no way connected with the case pending against the petitioner. While so, there is no reason to impose condition for defreezing the locker. Furthermore, the direction of the trial Court to furnish a bond for Rs.8 lakhs or surety of likesum is onerous condition and therefore, the same is to be modified. The learned counsel appearing for the petitioner submitted that when the prosecution has categorically stated that the article found in the locker is not required in the case pending against the petitioner, no condition be imposed for permitting the petitioner herein, who is the owner of the articles to use it as he pleases. Referring Sections 451 and 457 of Cr.P.C under which the application was filed by the petitioner herein before the trial Court, the learned counsel appearing for the petitioner submitted that as far as the jewels in the locker No.14 freezed at the instance of the Investigating Officer is neither a case property nor a property in the custody of the Court. The Investigating Officer in exercise of power under Section 102 of Cr.P.C., has conducted search of the locker after taking permission of the Court. He has also instructed the bankers to freeze the locker's account after taking inventory. As a result, the petitioner is unable to operate the account and deal with the jewels

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kept inside. The Final Report does not whisper about the search and freezing of the locker. The inventory list also not produced along with the Final Report and does not form part of the investigation document. In the said circumstances, it is improper on the part of the prosecution to deprive the petitioner from enjoying his property which is neither the case property nor the material to show that it is process of crime. Therefore, learned counsel submitted that under Section 457(1) of the Code, the Court ought to have directed the Investigating Officer to defreeze the locker and permit the petitioner to operate the locker unconditionally instead of imposing onerous condition thereby depriving the petitioner's lawful enjoyment of the property.

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The learned Special Public Prosecutor for CBI appearing for the respondents submitted that no doubt, the Final Report in R.C.No.26(A)/2014 does not say anything about the jewels found in the locker No.14 which stands in the name of the petitioner. However, there is a strong reason to believe that it is the result of accumulation of illegal gratification obtain from time to time and therefore, if the jewels return to the petitioner herein without any condition, there is a possibility of converting it and changing hands.

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Crl.R.C.No.1620 of 2023

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Heard the rival submissions and records perused.

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It is an undisputed fact that the locker No.14 at Arakonam Co-

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opeartive Urban Bank Limited, Stuartpet Branch, Arakonam stands in the name of the petitioner. It is also an undisputed fact that pursuant to the search

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operation, the following items were found in the locker:-

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a	Gold Bangles	2 Nos.23.660 grams
b	Gold stoned bangles	2 Nos. 23.300 grams
c	One Gold Bracelet	19.300 grams
d	One Gold Stone Dollar Chain	42.600 grams
e	One Gold becklace	17.600 grams
f	One pair stone gold	8.500 grams
g	Four Pairs gold stoned kammal with jimiki	28.100 grams
h	Four pairs gold kammal	13.000 grams
	Total	176.060 grams

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One Fixed Deposit Receipt No.5430 has also found in the said locker.

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The Final Report does not say anything about the search or the

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articles found inside in the locker No.14. Even in the counter filed before the trial Court, the Investigating Officer has not disclosed, how these jewels are relevant for the trial and why the locker must be freezed perpetually. From the

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counter, it appears that the Investigating Officer suspects, the jewels must have been accumulated by the petitioner from out of the illegal gratification obtained time to time. For the said suspicion, there should have been some materials collected during the course of investigation. The main incriminating materials against the petitioner is the statement of the approver, N.Babu. On going through this statement, which has earned him pardon, this Court finds that he has said nothing about the jewels found in the locker. His statement confines to the transfer of Rs.30,000/- in his account by A-2 on the behest of A-1 the petitioner herein.

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Chapter XXXIV of the Code of Criminal Procedure deals with Disposal of Property which has been seized by the police during the course of investigation either in the custody of the Court or in the custody of the police. Procedure for pre trial disposal and post trial disposal of the property been dealt in this Chapter. Section 457 deals with custody and disposal of the property pending trial.

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The case of the petitioner falls under Section 457 Cr.P.C. Though

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the jewels found in the locker, after inventory has not been produced before the

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Court for its custody under Form-91, the key of the locker is in the custody of the Court. Therefore, the constructive custody of the jewels deemed to be with the Court. The trial Court is duty bound to decide, whether the jewels in the locker is necessary for the trial and whether the jewels to be treated as case property. When the Investigating Officer in the additional counter had unambiguously informed the Court that the properties are not required for the trial and there is no other case pending against the petitioner. Having stated so, it is not legally permissible for the investigating officer to oppose the petition saying that if the jewels are returned to the petitioner, there is a possibility of changing hands and getting back the property will be remote. The property at the first instance, is not required for the trial. While so, how the owner of the property can be deprived of enjoying the property the manner he likes and when there is no whisper about these jewels in the Final Report or document enclosed along with the Final Report, why it should be required for the future in the trial not explained by the Investigating Officer in the counter.

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Section 457 of the Code lays down the procedure by the police upon seizure of the property. It reads as below:-

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457. Procedure by police upon seizure of property.

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(1) Whenever the seizure of property by any police

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officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

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(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

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The facts of the case in hand reveals by freezing the locker, the property in all sense under seizure by the police, the same has also been reported to the Magistrate, but not physically produced before the Court. The jewels still physically inside the freezed locker. The Magistrate while considering the petition for return of property had thought fit that there must be a condition imposed for giving the custody of the jewels and had imposed condition to execution of the bond for Rs.8 lakhs and to produce the jewels as and when required by the Court.

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Examination of Section 457 (1), we find, it contemplates three

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eventualities:

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(1) the Magistrate may make order as he thinks fit respecting the disposal of such property

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delivery of such property to the person entitled to the possession thereof

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if such person cannot be ascertained, respecting the custody and production of such property.

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In the case in hand, the ownership of the jewels is not in dispute.

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The jewels are not required for the trial. The jewels not produced before the Court and it is not in the custody of the Court. In such circumstances, there is no necessity to impose condition for executing a bond or to produce the jewels as and when required by the Court, unless and until, there is some iota of material before the Court to believe that the jewels are part of the crime and required for the trial.

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Imposing condition and direction to produce the property as and

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when required will arise only in case where the property already been produced

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before the Court and the Magistrate deals application under Section 452 of

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Cr.P.C. or while dealing with the application under Section 457(1) of Cr.P.C.,

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when the property not produced and not required for the trial but the ownership could not be ascertained. When the property not required and not produced before the Court by the Police and if there is no doubt about the ownership of the property, in appropriate case the custody of the property can be returned to the owner even without condition.

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Therefore, the order of the trial Court in sofar as the condition imposed is set aside. The respondent/Inspector of Police, CBI is directed to instruct the bank namely, Co-operative Urban Bank Limited, Stuartpet Branch, Arakonam, to defreeze the locker No.14. The Inspector is also directed to hand over the key of the locker No.14 to the petitioner herein for him to operate the locker including removal of the jewels found inside the locker and the fixed deposit.

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17. Accordingly, this Criminal Revision Case is disposed of.

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27.09.2023

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Index:yes/no Speaking order/non speaking order ari

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Crl.R.C.No.1620 of 2023

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To:

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1.The Principal Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai.

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2.The Inspector of Police, CBI/SPE/ACB, Chennai.

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3.The Assistant Manager, Arakonam Co-operative Urban Bank ltd., Stuartpet Branch, Arakonam.

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Dr.G.JAYACHANDRAN, J.

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ari

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27.09.2023

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V.Venkatesan v. State Rep.by

Case brief

What is this about?

What did the court decide?

V.Venkatesan v. State Rep.by

Case brief

What is this about?

What did the court decide?

What the court decided

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