ORDER
R.R. Yadav, J.
1. The instant petition under Section 482 Cr. P.C. has been filed against the order dated 31-10-92 passed by the learned Munsif and Judicial Magistrate (East), Bhilwara in Cr. Misc. Case No. 63/ 92 by Keshu Lal on the ground, inter alia, that petitioner Keshu Lal, Smt. Surji and Smt. Lali were apprehended by the Kotwali Police Station, Bhilwara under Section 109 Cr.P.C. and about 37 articles and 5 articles of silver, full details of which are disclosed in the impugned order, were seized by the police officer under Section 102 Cr.P.C. suspecting it to be stolen property.
2. It is undisputed before me that the proceedings under Section 109 Cr.P.C. had been terminated under Sub-section (6) of Section 116 Cr.P.C. on the expiry of six months of such detention. Certified copy of the order passed by the learned Executive Magistrate terminating the proceedings under Section 109 Cr.P.C. dated 27-5-92 is on record.
3. After termination of the proceedings under Section 109 Cr.P.C. by the learned Executive Magistrate on the expiry of the period of six months of the detention, the petitioner moved an application under Section 102 Cr.P.C. for release of the movable properties seized from them under Section 102 Cr.P.C. on execution of bonds.
4. The aforesaid application moved by petitioner for release of the article seized by the police, was rejected by the impugned order of the learned Magistrate holding that the bills produced by the petitioner to prove the ownership of the articles seized, required further enquiry. The learned Magistrate also sought information from police about pending investigation regarding these articles.
5. I have heard Mr. Rewa Chand, learned counsel for the petitioner and Mr. H.R. Panwar, learned Public Prosecutor for the State and have critically gone through the material available on record.
6. Mr. H.R. Panwar, learned Public Prosecutor appearing on behalf of the State submitted that since the enquiry is going on by the learned Magistrate about the entitlement to possession of the seized articles and the learned Magistrate has sought information from the Superintendent of Police as to whether any investigation has been done by the police agency about these articles. According to him, it would not be proper to direct for release of the property in favour of the petitioner on execution of bonds.
7. I have given my thoughtful consideration to the rival contentions advanced at the Bar. In my considered opinion, Section 102 Cr.P.C. empowered the police to seize only the property suspected to be stolen or which creates suspicion of commission of any offence. The disposal of the property seized by the police under Section 102 Cr.P.C. cannot be permitted to be postponed for an indefinite period as is being done in the present case.
8. The arguments of the learned counsel for the State to the effect that in the present case the property seized by the police under Section 102 Cr.P.C. is to be released as contemplated under Section 452 Cr.P.C. is not acceptable to me. In my considered opinion Sections 451 and 452 Cr.P.C. deal with cases which have been actually come up before a criminal court for enquiry or trial but where there has been no enquiry or trial in a criminal court the proper section to apply will be Section 457 Cr.P.C.
9. Section 457 Cr. P.C. empowers a Magistrate to make such order as he thinks fit regarding disposal of the property seized by the police under Section 102 Cr. P.C. under suspicion. The discretion given by these words must be judicially exercised. In the present case more than three years have passed. The property seized is continuing either in possession of police or of the Magistrate. On 1 -4-94 this Court has directed to the learned counsel for the State to produce information about the investigation done regarding these articles by police or any prosecution launched against the petitioner and other persons. An information was also sought by this Court from the learned counsel for the State regarding confiscation of these articles under Section 111 of the Customs Act. After long interval of nine months, the present case is posted before me for final disposal but the learned counsel for the State is not able to give any information about the aforesaid facts.
10. In absence of anything to show that any investigation has been conducted by the police about these seized articles the learned Magistrate has no authority to postpone the disposal of these seized articles for an indefinite period on the assumed enquiry about the entitlement of the petitioner and other two ladies from whose possession admittedly these articles were seized by the police under Section 102 Cr.P.C. in suspicion.
11. As a matter of fact in my humble opinion in absence of anything to show regarding entitlement to the seized property by the petitioner and other two ladies, the learned Magistrate instead of initiating enquiry about the entitlement of the petitioner and other two ladies ought to have disposed of the application for return of these seized articles after obtaining security from the petitioner and other two ladies from whose possession these articles were admittedly seized by the police as contemplated under Section 457 Cr.P.C.
12. In my considered opinion, there is always presumption under Section 110 of the Indian Evidence Act that a person who is in actual physical possession, of the property is the owner of such property unless contrary is shown or established. In the present case actual physical possession of the petitioner and other two ladies are not in dispute and no one has come forward to claim these articles even after three years. '
13. Where on suspicion of theft property is seized by the police under Section 102 Cr.P.C. but on enquiry no offence is found to have been committed, the seized property should be returned to the person from whose possession the articles were seized with security within the meaning of Section 457 Cr.P.C.
14. A detailed procedure is given under Section 457(2) Cr.P.C. which clearly provides that if the person entitled to possession of such seized property is known, the learned Magistrate may order the articles 4 to be delivered to such known person or persons on such condition (if any) as the Magistrate thinks fit and if such person or persons are unknown, the Magistrate may detain the seized articles and shall in such case issue a proclamation specifying the articles of which such a property consists 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.
15. In order to decide the controversy between the parties effectively, it would be proper to quote Sub-sections (1) and (2) of Section 457 Cr.P.C. in extenso as under:-
'457 (1).-Whenever the seizure of property by any Police 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.
(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.'
16. A conjoined reading of Sections 457 and 458 Cr.P.C. reveal that proclamation should be issued and enquiry about the entitlement of the petitioner and other two ladies in the present case can be initiated only if it is found by the Magistrate that the identity of person from whose possession the property is seized by the police under Section 102 Cr.P.C. is not known. As held in preceding paragraphs of my judgment it is not disputed either by the Magistrate or by the State before me that there was any dispute regarding identity of the persons from whose possession the articles in question were seized by the police in exercise of its power under Section 102 Cr.P.C.
17. Since in the present case admittedly articles in question have been seized from the actual physical possession of the petitioner as well as other two ladies mentioned above, therefore, the Magistrate has no authority in law either to issue proclamation as contemplated under Section 457(2) Cr.P.C. or to make an enquiry after expiry of six months. Although there is some ambiguity under Section 457(2) and under Section 458(1) Cr.P.C. to the effect that if no person within such period establishes his claim to such property and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the learned Magistrate by order direct that such property shall be at the disposal of the State Government and may be sold by the Government and the proceeds of such sale shall be dealt with in such manner as may be prescribed.
18. As a matter of fact Section 458(1) Cr. P.C. will come into play only if the ingredients for issuing proclamation under Section 457(2) Cr.P.C. are attracted. In the present case since the identity of the persons from whose possession the articles in question are seized are known to the learned Magistrate and is also admitted by the State, therefore, in the present case the ingredients of issuing proclamation by learned Magistrate under Section 457(2) Cr. P.C. is not called for. Since in the present case the learned Magistrate has no authority to issue proclamation under Section 457(2) Cr.P.C. therefore, the applicability of Section 458 Cr.P.C. will not be attracted in the present case.
19. In abundant caution it is made clear that the provisions of Sections 458(1) and (2) Cr.P.C. can be pressed into service only on one condition if the identity of person from whose possession the property seized by the police under Section 102 Cr.P.C. is unknown.
20. It is settled principle of law that in construing a statutory provision if there can be two interpretation of a statutory provision having penal consequences then the interpretation in favour of subject is to be preferred by courts of law. It is true that there is an anomaly between Section 457 and Section 458 Cr.P.C. leading to two interpretation but I prefer an interpretation in favour of petitioner holding that once the identity of a person or persons from whose possession property under Section 102 Cr.P.C. is seized is known it should be delivered in favour of such person or persons without resorting the procedure prescribed for proclamation under Section 457(2) Cr.P.C. inasmuch as there is a presumption under Section 110 of the Indian Evidence Act that a person who is in actual physical possession of the property is owner of such property unless contrary is shown or established. However, the anamoly is left open to be decided thread bare in a proper case on the facts which required issuance of a proclamation under Sub-section (2) of Section 457 Cr.P.C. Since in the present case no proclamation is required to be issued by the learned Magistrate hence this Court is not called upon to resolve the anamoly between Sections 457 and 458 Cr.P.C.
As a result of the aforementioned discussion, the impugned order dated 31-10-92 passed by the learned Munsiff and Judicial Magistrate (East), Bhilwara is hereby set aside and the instant petition under Section 482 Cr. P.C. is allowed. The learned Munsiff and Judicial Magistrate (East), Bhilwara is hereby directed to return the seized articles to the petitioner and other two ladies from whose possession the police has seized these articles on suspicion under Section 102 Cr.P.C. provided they execute bonds to the satisfaction of the learned Magistrate.