Delhi High Court has laid down guidlines for handing over of seized properties on Supardari
Delhi High Court in the present matter dealt with the important issue relating to properties seized by Police and their disposal and in the process taking note of provisions of Section 451 of the Code of Criminal Procedure, various precedents and submissions came out with the following conclusion:
Time limit for release
• Whenever a property is seized by the police, it is the duty of the seizing officer/SHO to produce it before the concerned Magistrate within one week of the seizure and the Court, after due notice to the concerned parties, is required to pass an appropriate order for its disposal within a period of one month.
• The valuable articles seized by the police may be released to the person, who, in the opinion of the Court, is lawfully entitled to claim such as the complainant at whose house theft, robbery or dacoity has taken place, after preparing detailed panchnama of such articles; taking photographs of such articles and a security bond.
• The photographs of such articles should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Wherever necessary, the Court may get the jewellery articles valued from a government approved valuer.
• The actual production of the valuable articles during the trial should not be insisted upon and the photographs along with the panchnama should suffice for the purposes of evidence.
• Where such articles are not handed over either to the complainant or to the person from whom such articles were seized or to its claimant, then the Court may direct that such articles be kept in a locker.
• If required, the Court may direct that such articles be handed back to the Investigating Officer for further investigation and identification. However, in no circumstance, the Investigating Officer should keep such articles in custody for a longer period for the purposes of investigation and identification.
• If articles are required to be kept in police custody, the SHO shall, after preparing proper panchnama, keep such articles in a locker.
• The currency notes seized by the police may be released to the person who, in the opinion of the Court, is lawfully entitled to claim after preparing detailed panchnama of the currency notes with their numbers or denomination; taking photographs of the currency notes; and taking a security bond.
• The photographs of such currency notes should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over and memo of the proceedings be prepared which must be signed by the parties and witnesses.
• The production of the currency notes during the course of the trial should not be insisted upon and the releasee should be permitted to use the currency.
• Vehicles involved in an offence may be released to the rightful owner after preparing detailed panchnama; taking photographs of the vehicle; valuation report; and a security bond.
• The photographs of the vehicle should be attested and countersigned by the complainant, accused as well as by the person to whom the custody is handed over.
• The production of the vehicle should not be insisted upon during the trial. The panchnama and photographs along with the valuation report should suffice for the purposes of evidence.
• Return of vehicles and permission for sale thereof should be the general norm rather than the exception.
• If the vehicle is insured, the Court shall issue notice to the owner and the insurance company for disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that it has claimed insurance/released its right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in auction.
• If a vehicle is not claimed by the accused, owner, or the Insurance company or by a third person, it may be ordered to be sold by auction.
Liquor and narcotic drugs
• Prompt action should be taken in disposing of the liquor bottles/pouches and narcotic drugs after preparing a detailed panchnama containing an inventory; retaining a sample thereof; taking photographs of the entire lot of seized bottles/pouches/narcotic drugs and security bond. The sample shall be kept properly after sending it to the chemical analyst, if required.
• The sample along with the photographs of the case property and the panchnama would be sufficient evidence at the stage of trial.
• The counterfeit coins/currencies together with implements for their manufacture such as dyes, moulds, etc. shall be retained by the police pending trial and till the disposal of the appeal or revision, if any. On conclusion of the trial, the Court shall pass an order for its disposal by destruction or for such other action in accordance with the rules.
Arms and ammunitions
• The arms and ammunition seized by the police shall be stored in the Malkhana during the pendency of the trial.
• Upon conclusion of the trial, the Court shall pass appropriate order under Section 452 Cr.P.C. for its confiscation or destruction or release.
• In case of properties subject to speedy and natural decay, the Magistrate may pass an appropriate order under Section 459 Cr.P.C. for its disposal on such conditions as may be considered appropriate.
• If the person entitled to the possession is unknown or absent or the Magistrate is of the opinion that sale would be in the benefit of the owner, the Magistrate may direct the case property to be sold.
Disposal of property at conclusion of trial
• Upon conclusion of enquiry or trial, the Court may make an order under Section 452 Cr.P.C. for the disposal by destruction, confiscation or delivery to any person claiming to be entitled for possession thereof or otherwise.
• For delivery of any property to any person claiming to be entitled thereto, the Court may release the property unconditionally or impose a condition of a bond with or without sureties to restore such property to the Court upon modification/setting aside of the order in appeal or revision.
• The aforesaid order shall not be carried out for a period of two months or when an appeal is presented, until disposal of the appeal except in case of live stock or property subject to speedy and natural decay.
• If no person establishes his claim to case property within six months or the person in whose possession such property was found is unable to show that he legally acquired the same, the Magistrate may order sale of the property by the State Government under Section 458 Cr.P.C.
Loss/theft/destruction of the case property in police custody
• Where the seized 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 its owner.
• The Court has to assess the value of the property seized by the police and the owner of the property is entitled to receive the value of the property lost from the State.
• The Court may impose any other condition which may be necessary in the facts of each case.
• The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused.
• When the property has any evidentiary value, it is to be kept intact and the condition of non-alienation is imposed to ensure its production during the course of evidence for the purpose of marking as a material object. However, when the property has no evidentiary value and only the value of the property is to be properly secured for passing of final order under Section 452 Cr. P.C., the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law.
• The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial.
• Irrespective of the fact whether the properties have evidentiary value or not, it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to.
Responsibility of the High Court Registry
• The Registry of the High Courts to ensure that the powers under Section 451 Cr.P.C. are being properly and promptly exercised by the Magistrates.
Responsibility of the Commissioner of Police (Delhi) to check the compliance by police stations
• The Inspector General of Police of the Division/ Commissioner of Police concerned of the cities/Superintendent of Police of District concerned to check the activities of each and every police station with regard to the disposal of the seized vehicles.
Consequences of refusing to follow well settled law
• The consequence of an authority not following the well settled law amounts to contempt of Court.
[Manjit Singh vs. State]
(Delhi HC, 10.09.2014)