# Sushil Kumar Dwivedi Revisionist v. State of U.P

- **Citation:** Criminal Revision No. 4683 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-27
- **Case number:** Criminal Revision No. 4683 of 2019
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-dwivedi-revisionist-v-state-of-u-p-46297
- **Pages:** 8

## Headnote

law-Code
of
Criminal
Procedure,1973-Section 397/401 & Indian
Penal Code,1860-Sections 286, 386, 392, 504,
411-application-release of firearms kept in
police custody during the trial-provision of
section
451
CrPc
attracted-court
below
illegally averted the provision of section 451
Crpc-retention of seized property during trial
or inquiry serves no purpose-identity of
firearms and being licensee, entitlement of
revisionist is not under cloud.
 (Para 10 to 30)

B. Section 457 Cr.P.C. is applied in those
matters where seizure of the property by
police officer is reported to Magistrate but
such property is not produced before the
criminal court during an inquiry or trial,
whereas u/s 451 Cr.P.C. seized property is
produced before any criminal court during an
inquiry or trial and question of custody of
property pending decision of inquiry or trial
should be decided under this section.(Para 20)

The revision is allowed. (E-6)

List of Cases Cited:-

## Text

1082 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2020)03-05ILR A1082
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2020

BEFORE

THE HON'BLE DINESH PATHAK, J.

Criminal Revision No. 4683 of 2019

Sushil Kumar Dwivedi ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Indra Kumar Chaturvedi (Senior Adv.),
Sri Amar Nath Tripathi, Sri Ram Milan
Dwivedi

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
law-Code
of
Criminal
Procedure,1973-Section 397/401 & Indian
Penal Code,1860-Sections 286, 386, 392, 504,
411-application-release of firearms kept in
police custody during the trial-provision of
section
451
CrPc
attracted-court
below
illegally averted the provision of section 451
Crpc-retention of seized property during trial
or inquiry serves no purpose-identity of
firearms and being licensee, entitlement of
revisionist is not under cloud.
 (Para 10 to 30)

B. Section 457 Cr.P.C. is applied in those
matters where seizure of the property by
police officer is reported to Magistrate but
such property is not produced before the
criminal court during an inquiry or trial,
whereas u/s 451 Cr.P.C. seized property is
produced before any criminal court during an
inquiry or trial and question of custody of
property pending decision of inquiry or trial
should be decided under this section.(Para 20)

The revision is allowed. (E-6)

List of Cases Cited:-
1. Sunder Bhai Ambala Desai Vs. St. Of Guj. AIR
(2003) SC 638

2. Smt. Basavva Kom Dyamangouda Patil Vs. St. Of
Mysore & ors. (1977) 4 SCC 358

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Sri I.K. Chaturvedi, learned
Senior Counsel assisted by Sri Amar Nath
Tripathi, holding brief of Sri Ram Milan
Dwivedi, learned counsel for the revisionist and
learned A.G.A for the State.

2. Rejoinder affidavit filed today by the
learned counsel for the revisionist, is taken on
record.

3. The instant criminal revision is
preferred
challenging
the
order
dated
18.11.2019 passed by learned Additional
Sessions Judge/Special Judge, (D.A.A.), Banda
in Criminal Misc. Case No. 128 of 2019 (State
Vs. Pankaj Gautam), rejecting the release
application dated 27.08.2019 under Sections
451 and 457 Cr.P.C filed by revisionist for
releasing his firearm Rifle No. 10A-B 05878315 N.P. Bore and three life cartridges and
Pistol No. R.P. 213879-32 Bore and four life
cartridges, in Sessions Trial No. 70 of 2019,
under sections 286/386/392/504/411 I.P.C,
Police Station Atarra, District Banda.

4. The factual matrix of the case
shows that on 06.06.2019 Sheelman
(informant) son of Ayodhya Prasad, driver
of truck no. U.P.-44-AT 3202, was driving
truck loaded with sand from Lahotera Ghat
P.S. Naraini to Sultanpur and, near the
Atarra Galla Mandi, the tyre of truck was
busted/flat tyred. While cleaner of truck,
Ravi, was replacing the busted tyre, at
about 10:30 p.m. one white Maruti Car
bearing registration no. U.P.-78-B 1059
reached there and two persons (accused)
stepped out from the car, one of them had a
3-5 All. Sushil Kumar Dwivedi Vs. State of U.P.
1083
pistol in his hand and the other person,
wearing white kurta, had a rifle. Both used
abusive language against mother and sister
of the informant on the pretext that he had
over loaded the truck with sand. At the
relevant point of time, another truck
bearing registration no. U.P.-44-AT-3201
driven by Mahesh Kashyap, who was
accompanied with the informant, also
reached
there.
Accused
persons
had
demanded money from both drivers. While
they asked for receipt of money, accused
persons fired from the rifle and snatched
Rs. 1,500/- each from both the drivers.

5. With respect to the aforesaid
incident, an F.I.R was lodged by driver
Sheelman on 07.06.2019 at about 3:41 a.m.
registered as case crime no. 128 of 2019,
under
sections
286/386/392/504
IPC,
Police Station Atarra, District Banda.

6. As per prosecution case, revisionist
along with co-accused were arrested on
07.06.2019 at about 4:30 p.m; firearms and
cartridges were recovered from them.
Investigation Officer submitted charge
sheet dated 11.06.2019 against both the
accused persons under sections 286, 386,
392, 504 and 411 IPC.

7. It is submitted by learned counsel
for the revisionist that alleged incident took
place on 06.06.2019 at about 10:30 p.m and
the F.I.R was lodged on 07.06.2019 at 3:53
a.m whereas the arrest and recovery have
been shown at about 4:30 a.m which shows
the probability of false case in which
revisionist has illegally been implicated.
Revisionist is an army personnel and,
original license holder and, has never been
convicted in any criminal case. There is no
criminal history of revisionist and the
antecedents of the revisionist are throughout good. There is no previous complaint
with respect to the misuse of firearms.
Even, till date, to the best of his knowledge,
no cancellation proceeding has
been
initiated with respect to the firearms in
question which was renewed from time to
time. It is further submitted that revisionist
has got the licenses of firearms to protect
the property and life of his family
members. The firearms and cartridges in
question
are
kept
in
maalkhana
of
concerned police station and there is every
likelihood of their destruction in absence of
proper maintenance, which will cause
irreparable loss to the revisionist. It is also
submitted that no identification parade has
been
conducted
to
ascertain
the
involvement
of
revisionist
in
the
commission of crime.

8. Per contra, learned A.G.A has
submitted that the revisionist has rightly
been prosecuted in the present matter and
the impugned order has rightly been passed
on the basis of police report. It is further
contended
that
during
investigation,
Investigating
Officer
has
collected
sufficient
credible
evidence
showing
complicity of applicant/revisionist in the
commission of offence. The rifle and pistol
used in commission of crime are case
property
and
further
a
report
for
cancellation of license has already been
sent to the District Magistrate.

9. Perused the record and carefully
considered the rival submissions made by
learned counsel for the parties.

10. Revisionist has moved an
application for release of his firearms under
sections 451 and 457 Cr.P.C. Before
discussing the merits of the instant revision,
the scope of section 451 and 457 Cr.P.C is
required to be discussed in light of the
present matter.
1084 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Provisions as embodied under
section 451 Cr.P.C entrust a duty upon the
Court to pass orders for custody or disposal
of case property during an inquiry or trial.
The provision of section 451 Cr.P.C is
reproduced below:-

451. Order for custody and
disposal of property pending trial in
certain cases- When any property is
produced before any Criminal Court
during any inquiry or trial, the Court may
make such order as it thinks fit for the
proper custody or such property pending
the conclusion of the inquiry or trial, and,
if the property is subject to speedy and
natural decay, or if it is otherwise
expedient so to do, the Court may, after
recording such evidence as it thinks
necessary, order it to be sold or otherwise
disposed of.

Explanation.-For the purposes of
this section, "property" includes-

(a) property of any kind or
document which is produced before the
Court or which is in its custody.

(b) any property regarding which
an offence appears to have been committed
or which appears to have been used for the
commission of any offence.

12. A bare perusal of section 451
Cr.P.C clearly denotes that it enable the
Court to pass appropriate order with respect
to seized property, such as:

(i) For proper custody of property
pending conclusion for inquiry or trial.

(ii) Pass order to sale the property
or otherwise dispose of, after recording
such evidence as it think necessary.

(iii) If property is subject to
speedy and natural decay or if it is
otherwise expedient so to do, to dispose of
the same.

13. It is noteworthy to state that our
police stations are flooded with seized
articles and there is always possibility of
misappropriation, misplace, replace, and
damage of property which are seized and
kept in police custody pending conclusion
of an inquiry or trial. Noticing paucity of
space in police stations, which are flooded
with seized articles, and to reduce the scope
of
misappropriation
of
amount
or
replace/misplace of valuable articles or
damage of property, goods, perishable
product/commodities which are seized and
kept in police custody pending conclusion
of inquiry or trial, the Hon'ble Supreme
Court had made certain observation, in the
matter "Sunder Bhai Ambala Desai Vs.
State of Gujarat reported in AIR 2003 SC
638", to avoid such circumstances and held
that power under 451 Cr.P.C should be
exercised promptly and at earliest.

14. Relevant paragraph nos. 7, 11, 12, 13,
14 and 17 of the case of Sunder Bhai Ambala
Desai (Supra) is quoted below:

7. In our view, the powers under
Section 451 Cr.P.C. should be exercised
expeditiously and judiciously. It would serve
various purposes, namely:--

1. Owner of the article would not
suffer because of its remaining unused or by its
misappropriation;

2. Court or the police would not be
required to keep the article in safe custody;

3. If the proper panchnama
before handing over possession of article is
3-5 All. Sushil Kumar Dwivedi Vs. State of U.P.
1085
prepared, that can be used in evidence
instead of its production before the Court
during the trial. If necessary, evidence
could also be recorded describing the
nature of the property in detail; and

4. This jurisdiction of the Court
to record evidence should be exercised
promptly so that there may not be further
chance of tampering with the articles.

11. With regard to valuable
articles,
such
as,
golden
or
silver
ornaments
or
articles
studded
with
precious stones, it is submitted that it is of
no use to keep such articles in police
custody for years till the trial is over. In
our view, this submission requires to be
accepted. In such cases, Magistrate should
pass appropriate orders as contemplated
under Section 451 Cr.P.C. at the earliest.

12. For this purpose, if material
on record indicates that such articles
belong to the complainant at whose house
theft, robbery or dacoity has taken place,
then seized articles be handed over to the
complainant after:--

(1) preparing detailed proper
panchnama of such articles;

(2) taking photographs of such
articles and a bond that such articles would
be produced if required at the time of trial;
and

(3) after taking proper security.

13. For this purpose, the Court
may follow the procedure of recording such
evidence, as it thinks necessary, as
provided under Section 451 Cr.P.C. The
bond and security should be taken so as to
prevent the evidence being lost, altered or
destroyed. The Court should see that
photographs of such articles are attested or
countersigned by the complainant, accused
as well as by the person to whom the
custody is handed over. Still however, it
would be the function of the Court under
Section 451 Cr.P.C. to impose any other
appropriate condition.

14. In case, where such articles
are not handed over either to the
complainant or to the person from whom
such articles are seized or to its claimant,
then the Court may direct that such articles
be kept in bank lockers. Similarly, if
articles are required to kept in police
custody, it would be open to the SHO after
preparing proper panchnama to keep such
articles in a bank locker. In any case, such
articles should be produced before the
Magistrate within a week of their seizure. If
required, the Court may direct that such
articles be handed over back to the
Investigating
Officer
for
further
investigation and identification. However,
in no set of circumstances, the Investigating
Officer should keep such articles in custody
for a longer period for the purpose of
investigation
and
identification.
For
currency notes, similar procedure can be
followed.

17. In our view, whatever be the
situation, it is of no use to keep such seized
vehicles at the police stations for a long
period. It is for the Magistrate to pass
appropriate orders immediately by taking
appropriate bond and guarantee as well as
security for return of the said vehicles, if
required at any point of time. This can be
done pending hearing of applications for
return of such vehicles.

15. In the aforesaid case, Hon'ble
Supreme Court has observed that object of
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
the Code seems to be that any property
which is in the control of Court either
directly or indirectly should be disposed of
by the Court and a just and proper order
should be passed by the Court regarding its
disposal. In a criminal case, the police
always act under the direct control of Court
and take orders from it at every stage of an
inquiry or trial. Thus, the Court exercises
an overall control on the action of Police
Officers in every case where it has taken
cognizance.

16. With respect to the custody of
seized property pending trial, Hon'ble
Supreme
Court
has
made
precise
observations in the matter of "Smt.
Basavva Kom Dyamangouda Patil Vs.
State of Mysore and Others reported in
(1977) 4 SCC 358" Para no. 4 of the
aforesaid judgment is quoted below:-

4. "The object and scheme of the
various provisions of the Code appear to be
that where the property which has been the
subject matter of an offence is seized by the
police, it ought not to be retained in the
custody of the Court or of the police for any
time longer than what is absolutely
necessary. As the seizure of the property by
the police amounts to a clear entrustment
of the property to a Government servant,
the idea is that the property should be
restored to the original owner after the
necessity to retain it ceases. It is manifest
that there may be two stages when the
property may be returned to the owner. In
the first place it may be returned during
any inquiry or trial. This may particularly
be necessary where the property concerned
is sought to speedy or natural decay. There
may be other compelling reasons also
which may justify the disposal of the
property to the owner or otherwise in the
interest of justice. The High Court and the
Sessions Judge proceeded on the footing
that one of the essential requirements of the
Code is that the articles concerned must be
produced before the Court or should be in
its custody. The object of the Code seems to
be that any property which is in the control
of the court either directly or indirectly
should be disposed of by the Court and a
just and proper order should be passed by
the Court regarding its disposal. In a
criminal case, the police always acts under
the direct control of the Court and has to
take orders from it at every stage of any
inquiry or trial. In this broad sense,
therefore, the Court exercises an overall
control on the actions of the Police Officers
in
every
case
where
it
has
taken
cognizance."

17. In the matter of Smt. Basavva
Kom Dyamangouda Patil (Supra) Hon'ble
Supreme Court has dealt with the matter
where case property pending trial is stolen
or destroyed. Hon'ble Supreme Court has
observed that where property is stolen, lost
or destroyed and there is no prima facie
defence made out that the State or its
Officers has taken due care and caution to
protect the property, the Magistrate may, in
an appropriate case, where the ends of
justice so required, order payment of value
of property.

18. Phrase "if it is otherwise
expedient so to do" as embodied under
section
451
Cr.P.C
connotes
wider
expression giving ample power to the
learned Magistrate to protect the property
which is custodia legis. Once the property
is produced before the Magistrate, he
considers as to whom it should be handed
over
for
safe
custody
pending
the
conclusion of inquiry or trial. Section 451
Cr.P.C
provides
an
interim
measure
regarding the custody of property which
3-5 All. Sushil Kumar Dwivedi Vs. State of U.P.
1087
has been seized during the investigation of
crime. Word "expedient" shows that, in
case, retention of property in Court would
be more expensive and there being gradual
damage pending trial, some order regarding
interim custody has to be passed if some
one come forward to take custody of
property pending trial or inquiry.

19. Scope of Section 451 Cr.P.C has
been made comprehensive, which includes
all kind of material and documents
produced before the Court or is in its
custody and same may have been used for
the commission of any offence or regarding
which an offence appears to have been
committed. The explanation gives a wider
meaning of word "property" than it
ordinarily has.

20. In my opinion, section 457 Cr.P.C
is not fully applicable in the present matter,
inasmuch as, it is applying in those matters
where seizure of the property by police
Officer is reported to Magistrate but such
property is not produced before the
criminal court during an inquiry or trial,
whereas under section 451 Cr.P.C seized
property is produced before any criminal
court during an inquiry or trial and question
of custody of property pending decision of
inquiry or trial should be decided under this
section.

21. The provision of section 457
Cr.P.C is reproduced 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 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.

22. In this view of the matter, under
section 457 Cr.P.C, the seized property by
the police is not produced before the
Magistrate and the Magistrate has the
power to decide who is the person entitled
for its possession. Though Section 451 and
457 Cr.P.C. fall under Chapter XXXIV of
the Cr.P.C. captioned as "Disposal Of
Property", the scope of these sections are
different.

23. In the present matter guns in
question are confiscated by police and
produce before the Magistrate which has
been kept in police custody during the trial,
therefore, provisions as embodied in
section 451 Cr.P.C is attracted in the
present matter.

24. It is admitted to the parties that
revisionist is a license holder of both the
firearms in question i.e. rifle and pistol,
which is evident from the photo copy of the
licenses annexed as Annexure no. 6 to the
affidavit. In the same case crime number,
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionist has already been enlarged on
bail vide order dated 26.07.2019 passed by
this
Court
in
Criminal
Misc.
Bail
Application No. 29979 of 2019.

25. Revisionist is an Army personal
and during his service period he has been
granted license for both the aforesaid
firearms and till date, to the best of his
knowledge, no cancellation proceeding, for
the said firearm license, has been initiated
against him. In paragraph no. 8 of the
counter affidavit it has simply stated that a
report has been sent to the District
Magistrate
to
initiate
cancellation
proceeding of firearms license in question
but there is nothing on record to show that
any proceeding has been initiated against
the revisionist. Learned counsel for the
revisionist submitted that up-till now the
revisionist
has
not
received
any
summon/notice relating to the case for
cancellation of firearms license and no
identification parade has been conducted to
assertion the involvement of present
revisionist, inasmuch as alleged offence is
said to have been commissioned in night at
about 10:30 p.m. Revisionist is a respectful
and law abiding person and has obtained
firearms to protect his life and property. As
per submissions made by learned Senior
Counsel, revisionist was never involved in
the accomplishment of the alleged crime as
mentioned in the F.I.R and, even, the
forensic report has not been called for to
ascertain the alleged involvement of
firearms in question.

26. Be that as it may, the court below
has illegally averted the intent of the
legislation enshrined under section 451
Cr.P.C and has illegally rejected the
application for release of firearms in
question in a cursory manner, only relying
upon the prosecution case and the police
report depicting the safety of firearms in
police custody. In the instant matter, where
identity of firearms and, being licensee,
entitlement of Sushil Kumar Dwivedi
(revisionist) is not under cloud, it cannot be
said that police custody is the "proper
custody"
of
such
property
pending
conclusion of the trial. Firearms are fragile
and keeping it unattended for long period
of
time
without
proper
care
and
maintenance, will put it in vulnerable
condition and cause a progressive reduction
in its quality.

27. Though firearms are safe in police
station, the plausibility of it's being misused
or misplaced or lost cannot be averted.
Retention of seized property for indefinite
period waiting result of inquiry or trial, will
serve no purpose. Hon'ble Supreme Court
in the matter of "Smt. Basavva Kom
Dyamangouda Patil (Supra) observed that
property, subject of offence, seized by the
police, it ought not to be retained in the
custody of the court or of the police for any
time longer than what is absolutely
necessary.

28. In the facts and circumstances of
the present case, after considering the rival
submissions of the parties and perusal of
record, I feel it expedient in the interest of
justice that it will of no use to keep the
firearms in question, in the police custody,
over the years till the trial is concluded.
Therefore, it would be better to release the
aforesaid firearms and give it in the custody
of revisionist (Sushil Kumar Dwivedi) who
is the valid license holder of the aforesaid
firearms.

29. Accordingly, as discussed above,
without commenting on merits of the case
under trial, the instant revision is allowed
and order dated 18.11.2019 passed by
3-5 All. M/s Atul Rahul Agro Pvt. Ltd. Vs. Director Krishi Utpadan Mandi Parishad Kisan Mandi Lko. & Anr.
1089
learned Additional Sessions Judge/Special
Judge (D.A.A.), Banda is hereby quashed.

30. The Court below is hereby
directed to release the firearms in question,
viz Rifle No. 10A-B 05878-315 N.P. Bore
and three life cartridges and Pistol No. R.P.
213879-32 Bore and four live cartridges
which are confiscated by the police in Case
Crime No. 128 of 2019 (State Vs. Pankaj
Gautam) in Sessions Trial No. 70 of 2019,
under Sections 286/386/392/504/411 I.P.C,
Police Station Atarra, District Banda, upon
furnishing an appropriate bond by the
present revisionist and guarantee to the
satisfaction of the court below, ensuring the
ownership and return of said firearms, if
required, at any point of time.
----------
(2020)03-05ILR A1089
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2020

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 1787 of 2020

M/s Atul Rahul Agro Pvt. Ltd. ...Petitioner
Versus
Director Krishi Utpadan Mandi Parishad
Kisan Mandi Lko. & Anr. ...Respondents

Counsel for the Petitioner:
Suresh Chandra Gupta

Counsel for the Respondents:
N.C. Mehrotra

Civil Law-Two trucks seized transporting
35o
quintals
rice-Petitioner
filed
an
appication for compounding the offenceoffence compounded subject to payment
of compensation and mandi fee and
development
cess-amount
paid-trucks
released-not open to challenge the seizure
and compounding order thereafter-W.P.
dismissed with cost. (E-9)

Cases cited:

1. Prestige Lights Ltd. v. S.B.I., (2007) 8 SCC
449

2. K.D. Sharma v. SAIL, (2008) 12 SCC 481

(Delivered by Hon'ble Rakesh Srivastava,
J.)

1. Heard Sri Suresh Chandra Gupta,
learned counsel for the petitioner and Sri
N.C. Mehrotra, learned counsel for the
respondents.

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

(a) issue a writ, order, direction in
the nature of quashing the impugned order
dated 07.12.2019 passed by opposite party
no. 1 vide the revision no. 1063/2019 in the
interest of justice contained in Annexure
No. 1

(b) issue a writ, order, direction in
the nature of certiorari quashing the
impugned order dated 13.06.2019 passed
by opposite party no. 2 and release the
amount of Rs 4,71,227/- and direct the
opposite parties to refund the money with
interest @ 18% in the interest of justice
contained in Annexure No. 9, 10 & 11.

(c) issue a writ, order, direction in
the nature of mandamus and commanding
the opposite parties to pay Rs 60,000/- as
demurrage and Rs 50,000/- as Advocate
fees.

3. Briefly stated, the facts are these:
On 29.05.2019 at about 07:00 p.m., the
officials of Krishi Utpadan Mandi Samiti,
Ghaziabad (for short the ''Mandi Samiti'),
intercepted two trucks bearing registration