-1- R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE03D DAY OF OCTOBER, 2018 BEFORE THE HON' BLE MR.JUSTICE R.DEVDAS WRIT PETITION NO.36569 OF2011(GM-RES) BETWEEN: SMT. UMA, W/O LATE CHAKRAVARTHY, AGED ABOUT37YEARS, RESIDENT OF NO.4042, BOMMADI MAIN ROAD, KADATHUR, DHARMAPURI DISTRICT, T.N. … PETITIONER AND12 3 (BY SRI M.J.ALVA, ADVOCATE) THE SUB-INSPECTOR OF POLCIE SAMPANGI RAMA NAGAR POLICE STAION, SAMPANGI RAMA NAGAR, BANGALORE – 560 027. THE SUB-INSPECTOR OF POLICE SHRIRAMPURAM POLICE STATION, SHRIRAMPURAM, BANGALORE – 560 021. THE DEPUTY COMMISSIONER, BANGALORE URBAN DISTRICT, BANGALORE – 560 001. (BY SRI T.S.MAHANTESH, AGA) …. RESPONDENTS -2- THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER
DTD. 15.12.2009 R3/DEPUTY COMMISSIONER, BANGALORE DISTRICT, BANGALORE IN THE PROCEEDINGS NO.MAG(4) MISC.CR592009- 10, VIDE ANNEXURE-A AND ETC. PASSED BY THE THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
R.DEVDAS J., (ORAL): The petitioner is before this Court calling in question the order dated 15.12.2009 passed by the Deputy Commissioner, Bengaluru District in proceedings No.MAG(4) MISC.CR592009-10, at Annexure-A.
2. The petitioner contends that Shrirampuram Police of Bengaluru City registered a case against her husband Chakravarthy in Crime No.428/1988 under Section 41(d) read with Section 102 of Cr.P.C. alleging that he was in possession of diamond stones i.e., 1246 stones of 84 caret 97 cents and 139 stones of assorted sizes, in total 1385 stones, for which he could not produce any document -3- to prove his ownership over the diamond stones. The value of the stones were assessed at Rs.22,49,400/- during the year 1989. The learned counsel for the petitioner submits that subsequently another case was registered in Crime No.529/1988, against one Raju, for an offence punishable under Section 8 of the Karnataka Treasure Trove Act, 1962 (for short ‘the Treasure Trove Act’). It is stated that crime was registered at the behest of one Mohammed Kasim and the FIR was submitted before the Chief Metropolitan Magistrate, Bengaluru. Another two cases had been registered for the offences punishable under Section 41(d) r/w Section 102 of Cr.P.C. against one Venkatesh and Appaswamy in Crime No.177/1988. It is stated that no charge sheet was filed against the husband of the petitioner and all the four cases were transferred to Sampangi Rama Nagar Police Station and the said police filed charge sheet under Section 18 of the Treasure Trove Act in respect of Crime No.177/1988 against the said Raju and the -4- same was registered in CC No.5866/1990 before the Chief Metropolitan Magistrate, Bengaluru.
3. In the averments made in the writ petition, it is stated that one Mohammed Kasim seems to have made a complaint that he was a demolition contractor and while undertaking demolition of a building which belonged to one Krishnappa, at K.H.Road, Bengaluru, one of the workers named Raju had found diamond stones kept in a soap box, concealed in a wall and same was found during the demolition. The learned counsel for the petitioner submits that in the complaint made by one Mohammed Kasim, it was stated that said Raju, who found the diamond stones sold it to the husband of the petitioner and one Appaswamy for valuable sale consideration. It is the case of the respondent police that during the investigation, the stones were found in the possession of the husband of the petitioner and therefore seized from him and as per the seizure and mahazar in PF No.104/1989 dated -5- 28.08.1989 and the seized articles were transferred to case in C.C. No.5866/1990.
4. It is the case of the petitioner that her husband made an application before the Magistrate for release of the diamond stones and the learned Magistrate rejected the application, as the investigation was underway and ordered the articles to remain in the safe custody of the Deputy Commissioner, Bengaluru Urban District. An application made by the Appaswamy was also rejected on the same ground. The husband of the petitioner is said to have passed away on 11.10.1989.
5. The Deputy Commissioner initiated proceedings under Section 6 of the Treasure Trove Act and the petitioner seems to have made her claim before the Deputy Commissioner on 07.03.1991. The petitioner contended before the Deputy Commissioner that her husband had purchased the diamond stones from a third party and since the husband is no more, the petitioner is entitled for the custody of the -6- property. The Deputy Commissioner is said to have rejected the said application on the ground that the petitioner made a claim after the Gazette Notification dated 12.12.1989 was issued. The averments in the petition would reveal that the learned Magistrate recorded the evidence of Mohammed Kasim and having found that there was no case made out, the Magistrate dropped the proceedings under Section 258 Cr.P.C., by order dated 30.10.2004.
6. The petitioner submits that the application filed by the petitioner under Section 451 and 457 of Cr.P.C. was heard by the learned Magistrate and by order dated 11.04.2005, the Magistrate directed the petitioner to execute Indemnity bond for Rs.1.00 Crore with one surety for the like sum and to produce surety before the Court for acceptance. The order passed by the Magistrate to the extent of the conditions imposed therein, was questioned before this Court in Crl.P.No.640/2006. The respondent State had also approached this Court -7- in Crl. P.No.2964/2006. The matters were heard together and disposed of by order dated 06.07.2006. This Court found that in view of the provisions of the Treasure Trove Act, especially Chapter II & III which deals with the powers and duties of the Deputy Commissioner, the Magistrate had no jurisdiction. The Criminal petition filed by the respondent-State was allowed, while setting aside the order of the Chief Metropolitan Magistrate and the matter was referred to the Deputy Commissioner with a direction that the Deputy Commissioner shall deal with the matter in accordance with law in terms of the Chapters II & III of the Treasure Trove Act.
7. The learned counsel for the petitioner submits that consequent to the directions issued by this Court, the petitioner once again made an application before the Deputy Commissioner for release and possession of the diamond stones. The Deputy Commissioner passed the impugned order dated 15.12.2009 rejecting the application made by -8- the petitioner. Aggrieved by the same, petitioner is before this Court questioning the order passed by the Deputy Commissioner.
8. Sri M.J.Alva, learned counsel for the petitioner submits that the impugned order suffers from various lacunae, since the Deputy Commissioner has not followed the provisions of the Treasure Trove Act. The learned counsel further submits that there was a clear direction by this Court that the Deputy Commissioner should conduct an enquiry as contemplated under Chapter II & III of the Treasure Trove Act and the Deputy Commissioner has failed to conduct an enquiry as directed by this Court. The learned counsel further submits that as an alternative, it should be considered that since there was no other claimant other than the petitioner, in terms of Sections 10 and 11 the treasure should have been handed over to the petitioner. The learned counsel for the petitioner placed reliance on the following judgments to -9- buttress his contention that even under the provisions of the Cr.P.C., when an application is made under Section 451 or 452 or 457 of Cr.P.C., the seized article should be released to the person from whom the articles were seized.
9. The learned counsel relies on the judgment of the Hon’ble Supreme Court in the case of Suleman Issa /vs./ State of Bombay reported in AIR1954SC312 where, when the gold articles were seized from the possession of the petitioner and when there was no direct evidence to show that the accused has committed theft or obtained the property fraudulently and even when the accused failed to account for its possession to the satisfaction of the Court, the order of confiscation was not appropriate order to be passed in the circumstances of the case. It was held that Section 517 (Section 452 corresponding provision) contains a general provision for disposal of the property in the circumstances mentioned in the latter part of the Section. It was -10- held that Section proceeds upon the mere belief that the property in possession of the person is stolen property or property fraudulently obtained or possession of which is not satisfactorily accounted for. It is an offence under the local Police Act and not an act which contains any substantive provision such as the Sea Customs Act imposing the penalty of confiscation.
10. Similarly in the case of State of M.P. and Ors. /vs./ Madhukar Rao, reported in 2008 AIR SCW787 it was pointed out that confiscation was permissible only when the competent court found that accusation and the allegations made against the accused as true and when finding is recorded that the seized articles were, as a matter of fact, used in the commission of offence.
11. Learned counsel has further placed reliance on the judgment of the High Court of Punjab and Haryana in the case of Daljit Singh /vs./ State of Haryana, wherein it has held that presumption is -11- that the person from whom the article is seized is the owner of the articles unless somebody else with a better title claims that.
12. Per contra, learned Additional Government Advocate submits that the Deputy Commissioner has indeed followed the provisions of the Treasure Trove Act and having found that the petitioner was unable to prove that her husband was the owner of the seized articles, the Deputy Commissioner has rightly held that the petitioner is not entitled for the possession of the seized articles.
13. This Court has given anxious consideration to the submissions made by both the learned counsels and perused the pleadings and records placed before this Court.
14. It is an undisputed fact that the petitioner has not called in question the order passed by this Court in the Criminal Petitions, wherein it was held that the jurisdiction lies before the Deputy -12- Commissioner under the Treasure Trove Act. Once it is held that the matter falls within the purview of the Treasure Trove Act, provisions of the code of Code of Criminal Procedure are not attracted in deciding the case. Therefore, the judgments cited by the learned counsel for petitioner is not applicable to the facts of the case.
15. Now the question remains as to whether the Deputy Commissioner has passed orders in terms of the directions given by this Court and whether the provisions of the Treasure Trove Act has been followed. Section 8 provides for declaration to be made by the Deputy Commissioner upon an enquiry under Section 7 and after coming to a conclusion that the treasure was not hidden within 100 years before the date of finding by a person referred to in sub-section (1) of Section 7 or where it is found that treasure was hidden within 100 years and the period fixed under sub-section (1) of Section 7 for institution of a suit in a Civil Court was provided and no such -13- suit was instituted within the period stipulated, the Deputy Commissioner may declare the treasure to be ownerless.
16. It is an admitted fact that the Deputy Commissioner had passed an order and a notification was gazetted on 12.12.1989 under Section 4 of the Treasure Trove Act. It is also an admitted fact that at the instance of this Court and as per the directions issued in the criminal petitions, the Deputy Commissioner was to inquire once again into the matter. The petitioner has thereafter filed an application claiming ownership and release of the seized articles. In the impugned order the Deputy Commissioner has recorded a finding that the petitioner herself made a claim right from the beginning that her husband had ‘purchased’ the seized articles from a third party at Dharmapuri. It is also an admitted fact that the petitioner was unable to prove by producing cogent evidence that her husband has indeed purchased the seized articles. It -14- is on this ground that the Deputy Commissioner has proceeded to pass the impugned order, rejecting the claim of the petitioner herein.
17. This Court cannot be oblivious of the fact that the enquiry was initiated at the instance of one Mohammed Kasim, who brought to the notice of the jurisdictional police that during the demolition of an old building at K.H.Road, Bengaluru, the diamonds were found in a soap box and a person named Raju, who was working under Mohammed Kasim had taken away the diamond stones. The claim of the petitioner that the articles were indeed purchased by her husband, remained unproved. Therefore, the alternative submission made by the learned counsel that under Sections 10 and 11 of the Treasure Trove Act, when there was no other person laying claim over seized property, the Deputy Commissioner should have released the seized articles to the petitioner, cannot be accepted. All along the -15- petitioner has claimed that her husband has ‘purchased’ the seized articles.
18. Sections 10 provides that when no person other than the ‘finder’ of such treasure appeared in the enquiry under Section 6, and claimed the treasure or a part thereof as “owner of the place” in which it was found or otherwise, the Deputy Commissioner shall, subject to the provisions of Section 14 deliver such treasure to the ‘finder’ thereof. Similarly Section 11 also provides that when ‘only one person’ other than the ‘finder’ of such treasure appears in an enquiry under Section 6, and claimed the treasure or a part thereof and the claim of such person is ‘not disputed’ by the ‘finder’, the Deputy Commissioner shall, subject to the provisions of Section 15, proceed to divide the treasure between the finder and the person so claiming.
19. Section 10 cannot be invoked by the petitioner because neither the petitioner nor her husband was ‘finder’ of the treasure. Though Section -16- 11 makes a provisions for a person other than the ‘finder’ to lay claim, the claim cannot be upheld unless the ‘finder’ does not dispute such person’s claim over the treasure. A combined reading of Section 10 and 11 would throw light on the intention of the legislature. The intention of the legislature seems to be that whenever treasure is found, it should be restored to the ‘rightful owner’. When the owner is not to be found, then the treasure or value of the treasure not exceeding Rs.1,00,000/- (Rupees one lakh) shall be given to the ‘finder’ and the excess has to be at the disposal of the Government. In cases where the treasure is ownerless and other than the ‘finder’ any other person (who may be the owner of the place in which treasure is found) makes a claim and ‘finder’ does not dispute the claim of such persons, then the Deputy Commissioner should proceed to follow the procedure laid out under Section 11 viz., divide the treasure or value thereof between the finder and other person provided the finder may receive the treasure or value not exceeding -17- Rs.1,00,000/- (Rupees one lakh). Therefore, on combined reading of these provisions, it is also clear that the ‘finder’ shall not get more than Rs.1,00,000/-(Rupees one lakh).
20. As noticed earlier the petitioner has never claimed that her husband had ‘found’ the seized articles. Therefore the husband of the petitioner was neither a ‘finder’ of the treasure nor is he the ‘owner of the place’ in which the treasure was found. Therefore, the Deputy Commissioner has rightly rejected the claim of the petitioner which does not fall under any of the categories that are enumerated under Sections 10 and 11 of the Act. Learned counsel hastens to point out that under Section 11, a person other than the finder of such treasure may make a claim. But as discussed above, under Section 11, such a claim should not be disputed by the finder, which means the finder should be in a position to identify and admit the ownership of such a claimant and he should not dispute such a claim.-.18- 21. Viewed from any angle, the petition is without merit. No fault could be found in the impugned order passed by the Deputy Commissioner. Therefore, the petition deserves to be dismissed and is accordingly dismissed. JUDGE SD/- KLY/