# Ram Ashish Yadav v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 1260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-11
- **Case number:** Matters Under Article 227 No. 5552 of 2021
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-ashish-yadav-v-state-of-u-p-anr-46535
- **Pages:** 5

## Headnote

Criminal Procedure Code, 1973 - Section 457 -
Seizure of currency notes by police - Release
of
such
notes
-
Magistrate
rejected
petitioner's
application
to
release
Rs.
4,00,300/-, seized by police during raid of his
house - Magistrate rejected application only
on the ground that the currency notes were
case property which were required to be
produced during the trial - Held - currency
notes and ornaments etc. cannot be withheld
by the court till disposal of the trial only on
the ground that such properties are case
properties - valuable articles like ornaments,
domestic articles and currency notes etc. can
be returned to the person entitled to the
possession thereof - Magistrate should have
ascertained as to who was entitled to the
custody of currency notes - After ascertaining
the person entitled to the custody of currency
notes he should have passed order for custody
of currency notes - Matter remitted back to
pass fresh order (Para 10, 11)

Allowed. (E-5)

List of Cases cited:

## Text

1260 INDIAN LAW REPORTS ALLAHABAD SERIES
in accordance with law. It is also made clear that
the evidence already on record shall be taken
into consideration, together with any further
evidence that the parties may now be advised to
lead.

28. In the circumstances, this appeal partly
succeeds and is allowed in part. The impugned
judgment and award dated 18.10.2012, passed
by the Motor Accident Claims Tribunal/
Additional District Judge, Court No.2, Faizabad
in Claim Petition No.28 of 2012, Phoola Devi
vs. Deo Narain and Others, is hereby set aside,
with a remit of the matter to the Tribunal to try
and decide the claim petition afresh, in
accordance with the guidance in this judgment.
It is also ordered that the Tribunal shall
endeavor to decide the claim petition within a
period of six months of the date of receipt a
copy of this judgment.

29. Costs easy.
----------
(2021)12ILR A1260
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2021

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Matters Under Article 227 No. 5552 of 2021

Ram Ashish Yadav ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri R.K. Shahi

Counsel for the Respondents:
G.A.

Criminal Procedure Code, 1973 - Section 457 -
Seizure of currency notes by police - Release
of
such
notes
-
Magistrate
rejected
petitioner's
application
to
release
Rs.
4,00,300/-, seized by police during raid of his
house - Magistrate rejected application only
on the ground that the currency notes were
case property which were required to be
produced during the trial - Held - currency
notes and ornaments etc. cannot be withheld
by the court till disposal of the trial only on
the ground that such properties are case
properties - valuable articles like ornaments,
domestic articles and currency notes etc. can
be returned to the person entitled to the
possession thereof - Magistrate should have
ascertained as to who was entitled to the
custody of currency notes - After ascertaining
the person entitled to the custody of currency
notes he should have passed order for custody
of currency notes - Matter remitted back to
pass fresh order (Para 10, 11)

Allowed. (E-5)

List of Cases cited:

1. Manjit Singh Vs St.LAWS(DLH)-2014-9-311

2. Sundar Bhai Ambalal Desai Vs St.of Guj. 2003(1),
J.I.C.615, SC

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. Heard learned counsel for the
petitioner and Shri Rakesh Srivastava and Shri
Madnesh Prasad Singh, learned AGAs for the
State.

2. This petition has been filed praying for
the following reliefs:

"(i) Issue a order or direction to setaside the impugned order dated 03.03.2021
passed by the learned Court of Judicial
Magistrate, Court No.11, Deoria, passed in
Misc. No. 58/21 State vs. Krishna Kumar and
others AND the order dated 13-08-2021
passed by the learned Sessions Judge, Deoria
in Criminal Revision No. 45/2021 C.N.R. No.-
UPDEO1001041 2021 Ram Ashish Yadav vs.
State of U.P. (Annexure No. 1 and 2 to this
writ petition).
11 All. Ram Ashish Yadav Vs. State of U.P. & Anr.
1261

(ii) Issue a order or direction
commanding and directing the learned Court of
Judicial Magistrate, Court No. 11, Deoria, to
act in accordance with law and release
4,00,300/- Rs., related with Case Crime No.
32/20 registered under section 60, 63, 72 of the
Excise Act, P.S. Bankata, District Deoria, in
favour of the petitioner forthwith."

3. The brief facts of the case are that on the
basis of the FIR lodged by the opposite party
No.2 at Police Station Bankata, District Deoria,
F.I.R. No.0032 of 2020 was registered against
the petitioner under Section 60, 63, 72 of the
Excise Act. During the alleged raid of the house
of the petitioner the police recovered Rs.
4,00,300/- which was said to have been obtained
by the petitioner after the sale of liquor etc.

4. Learned counsel for the petitioner
submits that the allegations levelled against the
petitioner regarding possession of liquor etc. is
totally false and no such item has been
recovered from the possession of the petitioner
or from his house as has been alleged. Further
submission is that the police has illegally entered
in the house of the petitioner and taken away
cash of Rs.4,00,300/- kept for expanses to be
incurred in marriage of the petitioner's daughter.
It is also contended that arbitrary and illegal act
of seizure of personal rupees of the petitioner by
the police is high handed, callous & capricious
in nature and hence was challenged before both
the learned courts below were under legal
obligation to release the seized amount in favour
of the petitioner but illegally the same has been
negatived hence the impugned orders dated
03.03.2021 and 13.08.2021 are not sustainable
in the eye of law and are liable to be quashed.

5. Learned counsel for the petitioner
submitted that the prayer for releasing the
currency notes recovered from the possession of
the accused could not be withheld by the court
till conclusion of the trial.

6. Further, learned counsel for the
petitioner has placed reliance upon the judgment
of Apex Court in case of Manjit Singh Vs. State
LAWS(DLH)-2014-9-311 in which it has been
held as under :-

"53. In Nidhi Kaushik v. Union of
India, LPA No.736/2013, decided on 26th May,
2014, the Division Bench of this Court, in which
I was a member, examined the aforesaid
judgments and summarized the law as under:

"Consequences of refusing to follow
well settled law If an authority does not follow
the well settled law, it shall create confusion in
the administration of justice and undermine the
law laid down by the constitutional Courts. The
consequence of an authority not following the
well settled law amounts to contempt of Court as
held by the Supreme Court in East India
Commercial Co. Ltd. (supra), Makhan Lal
(supra), Baradakanta Mishra (supra), M.P.
Dwivedi
(supra),
T.N.
Godavarman
Thirumulpad (supra), Maninderjit Singh Bitta
(supra), Priya Gupta (supra) and various High
Courts in Hasmukhlal C. Shah (supra),
Secretary, Labour Social Welfare and Tribunal
Development Deptt. Sachivalaya (supra), C.T.
Subbarayappa (supra), Parmal Singh (supra),
Ex-CT Nardev (supra) and Head of Department,
Air Force Station Amla."

Summary of principles of law The
following principles emerge from the above
judgments:

54. The properties seized by the police
during investigation or trial have to be produced
before the competent Court within one week of
the seizure and the Court has to expeditiously
pass an order for its custody in terms of the
directions of the Supreme Court in Basavva
Kom Dyamangouda Patil v. State of Mysore
(supra), Sunderbhai Ambalal Desai v. State of
Gujarat (supra 1), Sunderbhai Ambalal Desai v.
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Gujarat (supra 2) and General
Insurance Council v. State of A.P. (supra).

55. The Court has to ensure that the
property seized by the police should not be
retained in the custody of the Court or of the
police for any time longer than what is
absolutely necessary and in any case, for not
more than one month.

56. If the property is subject to speedy
and natural decay or if it is otherwise expedient
to do so, the Court may, after recording such
evidence as it thinks necessary, order it to be
sold or otherwise disposed of.

57. The expeditious and judicious
disposal of a case property would ensure that
the owner of the article would not suffer because
of
its
remaining
unused
or
by
its
misappropriation; Court or the police would not
be required to keep the article in safe custody;
and onerous cost to the public exchequer
towards the cost of storage and custody of the
property would be saved.

Time limit for release

58. 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.
Valuable articles

59. 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.

60. 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.

61. 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.

62. 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.

63. 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.

64. If articles are required to be kept
in police custody, the SHO shall, after preparing
proper panchnama, keep such articles in a
locker.

Currency notes

65. 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.
11 All. Ram Ashish Yadav Vs. State of U.P. & Anr.
1263

66.
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.

67. 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."

7. He further submitted that since there is
no dispute about the fact that the currency notes
belong to the petitioner, he is entitled for
custody of the same in view of the provisions of
Section 457 Cr.P.C.

8. He lastly submitted that the reason given
by the learned Magistrate in the impugned order
for rejecting the petitioner's prayer for releasing
the currency notes of Rs.4,00,300/- in his favour
is contrary to the law laid down by the Apex
Court in the case of Sundar Bhai Ambalal
Desai Vs State of Gujrat 2003(1), J.I.C.615, SC
and hence the impugned order can not be
sustained and is liable to be quashed.

9. Per contra learned AGAs made their
submissions in support of the impugned order.

10. I have heard learned counsel for the
parties present, perused the impugned order as
well as other materials brought on record and the
case law cited on the subject by the learned
counsel for the petitioner. In view of the law laid
down by the Apex Court in the case of Sundar
Bhai Ambalal Desai (Supra) as well as this
Court in the case of Manjit Singh (supra), the
currency notes and ornaments etc. which are
case property can not be withheld by the court
till disposal of the trial only on the ground that
such properties are case properties. The valuable
articles like ornaments domestic articles and
currency notes etc. which case property can be
returned to the person entitled to the possession
thereof. Section 457 of the Code lays down the
provision for releasing the property seized by the
police which is not produced before the Court
during inquiry or trial. The provision under
Section 457 of the Code is being extracted
below:

"457. Procedure by police upon
seizure of property-(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 can
not 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"

11. As per requirement of the provisions
under Section 457 of the Code the property
which has been seized by the police under the
provision of the Code and has not been produced
before the 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. In this
case, what was required of the learned
Magistrate was that he should have ascertained
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
as to who was entitled to the custody of currency
notes. After ascertaining the person entitled to
the custody of currency notes he should have
passed order for custody of currency notes in
view of the provisions under Section 457 of the
Code. The learned Magistrate rejected the
application only on the ground that the currency
notes were case property which were required to
be produced during the trial but the custody of
currency notes could not have been denied to the
petitioner by the learned Magistrate, rather the
property should have been disposed of by him in
accordance with the provision under Section 457
of the Code . Thus the impugned order is bad in
the eyes of law and is liable to be set aside and
the matter deserves to be remanded back to the
learned Magistrate for his fresh decision in the
matter in accordance with the provisions of
Section 457 of the Code.

12. The impugned order dated 03.03.2021
passed by the learned Court of Judicial
Magistrate, Court No.11, Deoria, passed in
Misc. No. 58/21 State vs. Krishna Kumar and
others AND the order dated 13-08-2021 passed
by the learned Sessions Judge, Deoria in
Criminal Revision No. 45/2021 C.N.R. No.-
UPDEO1001041 2021 Ram Ashish Yadav vs.
State of U.P. are hereby quashed and the matter
is remitted back to the learned Magistrate with a
direction to him to dispose of the application
moved by the complainant-petitioner afresh
keeping in view of the Provisions of 457 of the
Code within a period of three months from the
date of production of certified/ computerized
copy of this order before him.
----------
(2021)12ILR A1264
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 2211.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Government Appeal No. 413 of 2021

State of U.P. ...Appellant
Versus
Mankeshwar ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

Criminal Procedure Code, 1973 - Section 378 -
Appeal against acquittal - Powers of appellate
Court - while exercising appellate powers, even
if
two
reasonable
views/conclusions
are
possible on the basis of the evidence on record,
the appellate Court should not disturb the
finding of acquittal recorded by the trial Court -
in acquittal appeals, the appellate Court is not
required to rewrite the judgment or to give
fresh reasoning, when the reasons assigned by
the Court below are found to be just and
proper. (9, 14)

Accused charged for commission of offences under
Sections 363, 366, 376 of Indian Penal Code, 1860 &
also under Section 3/4 of Protection of Children from
Sexual Offences Act, 2012 - Special Judge (POSCO
Act) acquitted the accused - incident occurred on
11.11.2019 and the F.I.R. was lodged on 25.12.2019
- there is no explanation for delay of one and half
month in lodging the F.I.R. - Evidence of the
prosecutrix in favour of the accused-respondent - She
called the accused to her home and at 10.00 p.m.
they went away - They got themselves married in the
temple - both stayed in Mumbai and only after the
complaint was lodged and F.I.R. was noted,
prosecutrix came back - She conceived - She was
taken to Mahila Police Station - Her medical test was
performed - mother of the prosecutrix mentioned the
age of the prosecutrix to be 20 years - Even in her
statement under Section 164 Cr.P.C., the prosecutrix
has mentioned that her age is 20 Years - All these
facts go to show that she was not a minor - there was
no forcible sex as per Section 375 of IPC - father of
the prosecutrix only with a view to pressurize the
accused and his family members lodged the F.I.R. -
prosecturix has not supported the prosecution version
- judgment of acquittal passed by the Trial Court
confirmed. (Para 21)