Full Judgment
P.K. Misra, J.
1. Petitioner is one of the accused persons in C.R. Case No. 3136 of 1997 in the file of the Sub-Divisional Judicial Magistrate, Bhubaneswar. It is alleged that the petitioner along with others committed offences under Sections 366A, 343, 354 read with Section 34, Indian Penal Code. Petitioner has been released on bail. It is not disputed that a motor cycle bearing number OR-02-E-7477 has been seized by the police and the petitioner is the registered owner of such motorcycle. It is suspected that the said motor cycle had been used for the commission of the offences alleged. The petitioner had filed an application before the S.D.J.M. for release of the said motor cycle in his zima. The said application having been rejected, petitioner filed Criminal Revision No. 78/97 which has been dismissed. Hence, the present application under Section 482, Code of Criminal Procedure.
2. The learned counsel for the petitioner has submitted that the revisional Court has committed an error of record in observing that the accused persons are involved in an offence under Section 376/511, Indian Penal Code. He has submitted that since the revisional Court was labouring under this wrong impression regarding commission of alleged offence under Section 376 read with Section 511, Indian Penal Code, possibly a stringent view has been taken and the prayer for releasing the motor cycle in question on zima has been rejected.
It seems that, in fact, the revisional Court has committed the aforesaid error of record. As a matter of fact, charge-sheet has been filed against the accused persons alleging commission of offences under Sections 366A, 342/354/34, Indian Penal Code, and there is no allegation of commission of offence under Section 376/511, Indian Penal Code.
3. The detention of a seized article in police custody or Court Malkhana should be with a view to facilitate trial. If the question of identification of the seized material is involved, ordinarily it would not be proper to direct release of such material in favour of any person including the accused person. Similarly, if any contraband articles such as illegal arms or drugs etc. are seized, there would be hardly any scope for returning such articles to any person including the accused person before conclusion of trial. Where, however, the property seized is not required to be identified, nor is a contraband article, ordinarily such property should be released from custody in favour of the person entitled to possession of such property as per the principles envisaged in Section 457, Code of Criminal Procedure.
It is, of course, true that ultimately the property seized may be confiscated after conclusion of the trial in accordance with the provision contained in Section 452, Code of Criminal Procedure. When possibility of such confiscation is there, the Court has to consider as to whether the release of the property would be in the interest of justice or not. If the condition of the property by remaining idle in police custody is not likely to deteriorate and other sufficient materials are there for not releasing the property in favour of a person, such property may be retained by the Court or by the police and may be ultimately confiscated at the conclusion of the trial. Where, however, the condition of such seized property is likely to deteriorate, it would not be in the interest of justice to retain such property as ultimately even if such property is confiscated, its value is likely to diminish. In such cases, it would be more appropriate to release such property in favour of the person entitled to possession of such property subject, of course, to furnishing of adequate property security so that in case the property is directed to be confiscated and is not produced, the amount can be realised from the security given to the Court. Evidently, the Court has to weigh the various pros and cons and ultimately order is to be passed keeping in view the various facts and circumstances of a particular case.
4. In the present case, it appears that both the Courts below have not addressed themselves to the aforesaid aspects and have mechanically rejected the application merely because the motor cycle was alleged to be involved in the commission of the offences alleged. The retention of the motor cycle in police custody would definitely result in ultimate deterioration in the condition of the vehicle and its value will be diminished. The leaned counsel for the petitioner has submitted that petitioner is prepared to furnish adequate property security apart from giving an undertaking to produce the vehicle as and when required. Having regard to all the aspects, in the interest of justice, it is directed that the vehicle in question shall be released in favour of the petitioner subject to his filing an undertaking that the vehicle will be produced before the trial Court as and when required and furnishing a property security to the tune of Rs. 30,000/- to the satisfaction of the concerned Magistrate. On the failure of the petitioner to produce the vehicle as and when required, it would be open to the Magistrate to realise the amount by selling the secured property. Besides, such failure would be taken to be contempt of order of this Court and appropriate proceedings can be initiated against the petitioner.
Subject to the aforesaid observations and directions, the Criminal Misc. Case is disposed of.