# Waseem Riaz v. State of U.P. & Anr

- **Citation:** (2025) 4 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-08
- **Case number:** Application U/S 482 No. 29865 of 2024
- **Bench:** Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waseem-riaz-v-state-of-u-p-anr-53149
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 406, 120-B, 411, 467,
468 & 471 - Code of Criminal Procedure,
1973 - Sections 102, 451 & 457 - Release
of seized currency - Validity - Registration
of FIR by agent of Sapos Services Pvt. Ltd
against four named accused, police during
investigation, seized Indian currency -
Cash was recovered from co-accused -
Applicant
moved
application
seeking
interim custody of ₹1.87 crore seized
Indian
currency,
claiming
ownership
through authority from his father, whose
business he manages as sole son -
Application
rejected,
aggrieved,
filed
Criminal Revision, dismissed - Informant
has neither claimed seized cash nor
objected to its release, and has consented
to its release in favour of applicant - When
seized property is not required to remain
in custody for trial, it should be released
to rightful owner or person entitled to its
possession,
based
on
proof
by
preponderance of probabilities - Release
of property to owner or person entitled to
its possession shall not be deemed a
declaration of title and will remain subject
to existing or future civil litigation -
Impugned order quashed, seized currency
directed to release to applicant as interim
custody on certain conditions. (Para 2, 19,
20, 23)

Application allowed. (E-13)

List of Cases cited:

## Text

4 All. Waseem Riaz Vs. State of U.P. & Anr.
5
(2025) 4 ILRA 5
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.04.2025

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Application U/S 482 No. 29865 of 2024

Waseem Riaz ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Atharva Dixit, Pranav Tiwary

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 406, 120-B, 411, 467,
468 & 471 - Code of Criminal Procedure,
1973 - Sections 102, 451 & 457 - Release
of seized currency - Validity - Registration
of FIR by agent of Sapos Services Pvt. Ltd
against four named accused, police during
investigation, seized Indian currency -
Cash was recovered from co-accused -
Applicant
moved
application
seeking
interim custody of ₹1.87 crore seized
Indian
currency,
claiming
ownership
through authority from his father, whose
business he manages as sole son -
Application
rejected,
aggrieved,
filed
Criminal Revision, dismissed - Informant
has neither claimed seized cash nor
objected to its release, and has consented
to its release in favour of applicant - When
seized property is not required to remain
in custody for trial, it should be released
to rightful owner or person entitled to its
possession,
based
on
proof
by
preponderance of probabilities - Release
of property to owner or person entitled to
its possession shall not be deemed a
declaration of title and will remain subject
to existing or future civil litigation -
Impugned order quashed, seized currency
directed to release to applicant as interim
custody on certain conditions. (Para 2, 19,
20, 23)

Application allowed. (E-13)

List of Cases cited:

1. Sunderbhai Ambalal Desai Vs St. of Guj.,
2002 (10) SCC 283

2. Smt. Basawa Kom Dyanmangouda Patil Vs St.
of Mysore & anr., (1977) 4 SCC 358, (Para 7 to
12)

3. General Insurance Council Vs St. of A.P.,
(2010) 6 SCC 768

4. Biswajit Dey Vs St. of Assam, 2025 SCC
OnLine SC 40, (Para 23)

(Delivered by Hon'ble Sanjay Kumar
Pachori, J.)

1. The present application under
Section 482 of The Code of Criminal
Procedure (hereinafter referred as "Cr.P.C")
has been filed for quashing the order dated
1.7.2024 passed by Additional Sessions
Judge/Special Judge (POCSO Act), Court
No. 2, Varanasi, in Criminal Revision No.
422 of 2022 (Waseem Riaz vs. State of
U.P.)
whereby
the
Revisional
Court
affirmed the order dated 13.10.2022 passed
by
Additional
Civil
Judge
(Senior
Division)/Judicial Magistrate, Court No. 2,
Varanasi on an application under Section
457 read with Section 451 of Cr.P.C for
release of the Indian currency of Rs.
1,87,00,000/-, which was seized during
the investigation of Case Crime No. 46
of 2022, under Sections 419, 420, 406,
120-B, 411, 467, 468, 471 of I.P.C.
registered on 21.04.2022 at Police
Station
Chetganj,
District
Varuna
(Commissionerate Varanasi) filed by the
present applicant on behalf of his father
after having authority, which has been
dismissed.
6 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Brief facts as culled out from the
record are that the applicant filed an
application under Section 457 read with
Section 451 of Cr.P.C. for release Indian
Currency Rs. 1,87,00,000/- which has been
recovered and seized during investigation
of Case Crime No. 46 of 2022 registered at
Police Station Chetganj, District Varuna
(Commissionerate
Varanasi) from coaccused Sachin Sharma. As per the
recovery memo dated 28.04.2022, Indian
currency
has
been
recovered
in
denomination of Rs. 2000/-, Rs. 500/-, Rs.
200/-, Rs. 100/- as 983, 33088, 600 and 700
respectively stating that the applicant is the
real owner of the aforesaid case property.

 2(i). After lodging of the First
Information
Report
dated
21.04.2022,
which has been registered by private
opposite party no. 2 against four named
accused persons by first informant who is
admittedly an agent of Sapos Services Pvt.
Ltd. (collection company). During the
investigation Police seized the Indian
currency of Rs. 1,87,00,000/- by recovery
memo dated 28.04.2022.

2(ii).
After
completing
the
investigation, charge
sheet
has
been
submitted against four accused persons
under Sections 419, 420, 406, 120-B, 411,
467, 468, 471 of I.P.C. and the trial of the
aforesaid case is pending.

2(iii). The present applicant filed
an application on 13.05.2022 under Section
457 read with Section 451 of Cr.P.C. to
release the seized Indian currency on behalf
of his father, on the basis of authority
which has been given by his father as the
applicant is sole son, who look after the
business of his father, passed for interim
custody in favour of the applicant, who
claimed himself to be the owner of the
property seized, which has been dismissed
by learned Magistrate on 13.10.2022.
Being aggrieved by the order of the learned
Magistrate,
applicant
filed
Criminal
Revision which has also been dismissed on
July 1, 2024.

2(iv). The accused persons have
not filed any application to release the
Indian currency till today.

2(v). The first informant has not
filed any application to release the
aforesaid cash in his favour till today and
admittedly he gave consent to release the
aforesaid Indian currency in favour of
present applicant.

3.
The
Learned
Magistrate
observed that the present Indian currency is
a case property of the aforesaid Case
Crime.
However,
observed
that
the
applicant is real owner of the seized Indian
currency. There is no dispute with regard to
the ownership of the aforesaid currency. As
per pre-summoning evidence (statement of
first
informant),
the
first
informant
collected the aforesaid amount on behalf of
father of the applicant.

4. The Income Tax Commissioner
filed an application to release aforesaid
cash stating that the source and nature of
seized cash could not be explained. On
07.09.2022, the S.H.O. Chetganj, Varanasi
was issued requisition letter which has been
served but the S.H.O. has not delivered
cash to Income Tax Department. It is
further alleged that the seized amount
represented is undisclosed income, the
objection of the assesse have to be decided
under Section 132 of the Income Tax Act
itself and the court has no power to decide
the application in similar proceedings under
Section 457 of Cr.P.C., which has been
rejected vide order dated 13.10.2022, and
Criminal Revision has also been filed
against the order dated 13.10.2022, which
has also been rejected by Additional
4 All. Waseem Riaz Vs. State of U.P. & Anr.
7
Sessions Judge Court No. 2, Varanasi on
02.07.2024.

5. Learned Senior Counsel submits
that the impugned order has been passed
without
considering
the
facts
and
circumstances and position of law. It is
further submitted that there is no dispute
with regard to the ownership of the
aforesaid Indian currency, which has been
recovered
and
seized
during
the
investigation of case crime no. 46 of 2022.
There is no argument so far as the offences
of prevention of corruption Act are
concerned. There is no reason as well as
argument by the State as to why the money
is required to be detained when it is the
contention of the prosecution that the
investigation is completed.

6. Learned Senior Counsel for the
applicant relied upon the judgment of Apex
Court in the case of Sunderbhai Ambalal
Desai Vs. State of Gujarat, 2002 (10)
SCC 283. The applicant expressed his
readiness and willingness to execute a bond
to produce the same before the Court as
and when required to do so as per Section
102(3) of Cr. P.C.

7. Sri Gaurav Mahajan, learned
counsel for Income Tax Department
requested to assist the Court in the matter,
in response to aforesaid request and after
receiving instruction, who admits that no
other proceeding has been filed against the
order dated 02.07.2024.

8. Per Contra, learned AGA as
well as Sri Gaurav Mahajan, learned
counsel for Income Tax Department have
not denied the factual matrix of the present
matter and also admitted that the aforesaid
Indian currency has not been seized under
Section 132(A) of Income Tax Act, 1961 or
no other case has been lodged under any
other Act.

9. Heard, Sri Manish Tiwary,
learned Senior Counsel assisted by Sri
Atharva Dixit and Sri Pranav Tiwary,
learned counsels for the applicant, Sri
Gaurav Mahajan, learned counsel for
Income Tax Department, Sri Vedanta
Agarwal, learned counsel for opposite party
no. 2 and Sri Tej Bhan Singh, learned
A.G.A for the State and perused the
material on record.

10. Present matter is related to
interim custody of seized Indian Currency in
the above noted case. Learned Magistrate
dismissed the release application of the
applicant and a Criminal Revision has been
filed against the order dated 13.10.2022
passed by the learned Magistrate, before the
Sessions Judge, which has been decided by
Additional Sessions Judge/Special Judge
(POCSO Act), Court No. 2, Varanasi on July
1, 2024 and affirmed the order passed by the
Magistrate.

11. Before adverting to the relief
sought by the applicant, it would be
essential to mention few more facts which
are relevant. A brief reference of the
authority given by father of the applicant in
favour of the applicant as well as consent
of the opposite party no. 2/first informant
are essential for further consideration,
which are as under:

11(i). F.I.R. dated 21.04.2022 has
been lodged by the opposite party no. 2
against the four named persons namely
Amit Mittal, Sonu Lakda, Sandeep Khatri
and Abhishek Goyal as:

"सेवा में श्रीमान प्रभारी ननरीक्षक साहब
थाना चेतगंज वाराणसी महोदय ननवेदन है नक मैं प्राथी अंनकत
8 INDIAN LAW REPORTS ALLAHABAD SERIES
शुक्ला पुत्र सोमेश्वर नाथ शुक्ला ग्राम ममुआ थाना राबर्टसगंज
सोनभद्र का ननवासी ह ं हाल पता अकथा चौराहा थाना लालपुर
पांडेपुर वाराणसी मै प्राथी सापोस सनवटसेज प्रा० नल० कंपनी में सेल्स
मैनेजर के पोस्र् पर काम करता ह ं मैं कंपनी के भेजे गए रेशम को
बुनकरो को थोडा थोडा करके बेचता ह ं और उनसे नकद कलेक्शन
करता ह ं नदनांक 16.04.2022 को मेरे ररश्तेदार अश्वनी कुमार
पाण्डे के मोबाइल नंबर 8400412764 पर अनभषेक गोयल
मोबाइल नंबर 7506721039से फोन आया और उनसे कहा नक
मैं आप से कैश पैसे लेकर आपके अकाउंर् में उतने ही पैसे कुछ
कमीशन लेकर ट्ांसफर करा द ंगा और उसने अनमत नमत्तल उफट यश
नमत्तल मोबाइल नंबर 8427612327 और कहा नक यह चार्ेर्
अकाउंर्ेेेें
र् है आप इनसे बात करके नमल लीनजए आपका काम
हो जाएगा नदनांक 18.04.2022 को मैं अनमत नमत्तल उफट यश
नमत्तल से बात करके उसके मलदनहया नस्थत ऑनफस पर नमलने गये
था मैं उसकी बातों से संतुष्ट हो गया आज नदनांक 20.04.2022
को समय सुबह 10.00बजे बुनकरो से इकट्ठा नकए हुए कुल कैश
2 करोड रूपये लेकर र्ैक्स बचाने के ननयत से अनमत उफट यस
नमत्तल के मलदनहया नस्थत ऑनफस पर पहुंचा वहां पर अनमत उफट
यश नमत्तल व उसके 2 साथी जो क्रमशः सोन लाकडा व सदीप
खत्री जो बोलचाल से हररयाणा के लगते थे पहले से मौज द थे लोगो
ने कहा नक कैश नगन कर अकाउंर् में ट्ान्सफर कर देते हैं और
ऑनफस के अंदर ही द सरे कमरे में प रे कैश नगनवाने के नलए
रखवा नदया और मेरे साथ धोखाधडी करते हुए बारी बारी से मेरा
सारा कैश लेकर वहां से चले गए मेरे साथ मेरे ररश्तेदार अश्वनी
कुमार पांडे भी ऑनफस में मौज द थे उन्हें कुछ शक हुआ तो वह
बगल वाले कमरे में गए तो वे नचल्लाए की ना तो कमरे में कैश है
और ना ही वे लोग हैं वे सभी ऑनफस के द सरे रास्ते से
धोखाधडी करते हुए मेरा सारा कैश लेकर फरार हो गए उन लोगों
का काफी तलाश नकया लेनकन नहीं नमले। अतः महोदय से
अनुरोध है नक उनचत कान नी कायटवाही करने की कृपा करें। प्राथी
अंनकत शुक्ला मो० नं० 8299046897 नदनांक
20.04.2022 नोर् मुझ का०मु०मो० साररक द्वारा बोल बोल
कर र्ाइप कराया गया।"

11(ii). Opposite party no. 2/ first
informant filed no objection against the
release application of the applicant which is
as follows:

"2. यह नक उक्त अ0 सं0 में वसीम ररयाज पुत्र
मुस्तफा कमाल ननवासी एन0 12/361सी-7 आजाद नगर
बजरडीहा थाना भेलपुर जनपद वाराणसी धारा मु 0
1,87,00,000/- (एक करोड सत्तासी लाख रु0) का ररलीज़
प्राथटनापत्र नदनांनकत 13.05.2022 मा0 न्यायलय में दानखल है
उसकी प णट जानकारी प्राथी/वादी को हैं। संप णट धनरानश वसीम
ररयाज़ के फमट कमल साडीज की थी।

3. यह नक उक्त धनरानश मा0 न्यायलय द्वारा वसीम
ररयाज के पक्ष में अवमुक्त की जाती है तब प्राथी/वादी को उक्त
धनरानश वसीम ररयाज के पक्ष में अवमुक्त नकये जाने से कोई आपनत्त
नहीं है ऐसी नस्थनत में उक्त धनरानश वसीम ररयाज के पक्ष में ररलीज़
नकया जाना न्यायसंगत होगा।"

11(iii). The applicant filed release
application aforesaid, as son of the owner
of the firm Kamal Sarees i.e. on behalf of
his father on the basis of following
authority:

"मैं मुस्तफा कमाल पुत्र स्व० मोहम्मद रफीक ननवासी
- एन० 12/ 361 सी-7 आजाद नगर बजरडीहा, थाना - भेल पुर,
जनपद वाराणसी का ननवासी ह े व कमल सानडज नामक फमट का
प्रोपराईर्र ह ं। फमट का GST. IN\UIN नम्बर-
09ANPPK48371ZI है च े नक मेरी उम्र ज्यादा है व मुझे
कई गम्भीर रोग है इसी कारण उक्त फमट का सभी कायट/नवनधक कायट
मेरे पुत्र वसीम ररयाज पुत्र मुस्तफा कमाल ननवासी - एन०
12/361 सी- 7 आजाद नगर बजरडीहा, थाना - भेल पुर, जनपद
वाराणसी द्वारा नकया जायेगा उक्त सम्बन्ध में मैं यह सहमनत पत्र
अपने प णट होशो-हवाश में नबना नकसी जोर जबरदस्ती के हस्ताक्षररत
कर रहा ह े ।"

12. It is admitted fact that the
aforesaid seizure has been made under
Section 102 of Cr.P.C. The scheme of
seizure under Section 102 of Cr.P.C. is
material different from other Act. Section
102 of Cr.P.C. reproduced as under:

"102. Power of police officer to
seize certain property:- (1) Any police
officer may seize any property which may
be alleged or suspected to have been stolen,
or
which
may
be
found
under
circumstances which create suspicion of the
commission of any offence.
4 All. Waseem Riaz Vs. State of U.P. & Anr.
9

(2)
Such
police
officer,
if
subordinate to the officer-in-charge of a
police station, shall forthwith report the
seizure to that officer.

(3) Every police officer acting
under sub-section (1) shall forthwith report
the seizure to the Magistrate having
jurisdiction and where the property seized
is such that it cannot be conveniently
transported to the Court, he may give
custody thereof to any person on his
executing a bond undertaking to produce
the property before the Court as and when
required and to give effect to the further
orders of the Court as to the disposal of the
same.

13. A plain reading of sub-section
(1) of Section 102 indicates that the Police
Officer has the power to seize any property
which may be found under circumstances
creating suspicion of the commission of
any offence. The legislature having used
the expression 'any property' and 'any
offence' have made the applicability of the
provisions wide enough to cover offences
created under any Act. But the two pre-
conditions for applicability of Section
102(1) are that it must be firstly; 'property'
and secondly; in respect of the said
property there must have suspicion of
commission of any offence. However, the
said order of seizure is only a temporary
order and in terms of sub-section (3) of
Section 102 of Cr. P.C., the police officer
seizing any property on the grounds of
suspicion of an offence is required to
forthwith
report
the
seizure
to
the
Magistrate having jurisdiction.

14. The said property seized is
required to be produced before a Court
and/or reported to a Magistrate. In such
cases, the court would have the power to
pass necessary orders with regard to the
said property. In terms of Section 457 of
the Cr.P.C., whenever a property is seized
by any police officer and is reported to the
Magistrate, the Magistrate is empowered to
make such orders as he thinks fit in respect
of disposal of the property or the delivery
of such property to the person entitled to
the possession thereof. In cases where such
person
cannot
be
ascertained,
the
Magistrate can pass orders in respect of the
custody and production of such property.

15. It would be useful to refer the
provisions of Section 451 and 457 of
Cr.PC. which reproduced as under:

 "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 of 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.

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
10 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Section 451 clearly empowers
the Court to pass appropriate orders with
regard to such property, Firstly; for the
proper custody pending conclusion of the
inquiry or trial; Secondly; to order it to be
sold or otherwise disposed of, after
recording such evidence as it think
necessary; Thirdly; if the property is
subject to speedy and natural decay, to
dispose of the same.

17. In Sunderbhai Ambalal Desai
Vs. State of Gujarat, 2002 (10) SCC 283,
the
Supreme
Court
observed
that
application under Section 451 Cr.P.C with
regard to perishable goods, narcotics,
contraband, vehicles, cash and ornaments
that
are
subject
matter
of
criminal
proceedings to be decided expeditiously
and judiciously. The various guidelines and
direction issued by the Apex Court after
referring the judgment of Smt. Basawa
Kom Dyanmangouda Patil v. State of
Mysore and Anr., (1977) 4 SCC 358, are
relevant to reproduce as paragraphs 7, 8, 9,
10, 11 and 12 which are as under:

"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 panchanama
before handing over possession of article is
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.

8. The question of proper custody
of the seized article is raised in number of
matters.
In
Smt.
Basawa
Kom
Dyanmangouda Patil v. State of Mysore
and Anr., [1977] 4 SCC 358, this Court
dealt with a case where the seized articles
were not available for being returned to the
complainant. In that case, the recovered
ornaments were kept in a trunk in the
police station and later it was found
missing, the question was with regard to
payment of those articles. In that context,
the Court observed as under-

"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
4 All. Waseem Riaz Vs. State of U.P. & Anr.
11
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 subject 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 an
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."

9. The Court further observed
that where the property is stolen, lost or
destroyed and there is no prima facie
defence made out that the State or its
officers had taken due care and caution to
protect the property, the Magistrate may, in
an appropriate case, where the ends of
justice so require, order payment of the
value of the property.

10. To avoid such a situation, in
our view, powers under Section 451
Cr.P.C. should be exercised promptly and
at the earliest.

11.
Valuable
Articles
and
Currency Notes With regard to valuable
articles, such as golden or sliver 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, the
Magistrate should pass appropriate orders
as contemplated under Section 451 Cr.P.C.
at the earliest.

12. For this purposes, 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:-

s(1) preparing detailed proper
panchanama 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."

18. In the case of General
Insurance Council v. State of A.P.,
(2010) 6 SCC 768 the Supreme Court
reiterated that need for compliance of
directions given in the case of Sunderbhai
Ambalal Desai (supra). A similar view has
also been taken in the case of Biswajit Dey
v. State of Assam, 2025 SCC OnLine SC
40 at para 23.

19. It is settled position of law that
no person shall be deprived of his or her
property without the authority of law, as
declared
by
Article
300A
of
the
Constitution of India. Therefore, when the
property, so seized by the investigating
agency, need not physically remain with
the prosecution to bring the trial or
12 INDIAN LAW REPORTS ALLAHABAD SERIES
litigation, relating to or connected with the
seized property, to its logical conclusion,
then the seized property shall be released to
the rightful owner, or the person who is
entitled thereto. As to who is the rightful
owner or the person entitled to the
possession of the property shall be guided
by the proof based on preponderance of the
probabilities.

20. However, it is made clear that
the release of the property in favour of the
owner or the person found to be entitled to
the possession of the properties shall not
operate as the declaration of title of that
person to the property which shall always
be subject to the litigation, if any pending
or to be instituted before the Civil Court.

21. After having gone through the
entire material on record the following
facts emerged:

 (i) The Indian currency of Rs.
1,87,00,000/-
has
been
seized
under
Section 102 of Cr.P.C. on 28.04.2022 from
co-accused Sachin Sharma and a recovery
memo has been prepared.

(ii) F.I.R. of the present case has
been lodged on 21.04.2022 at 00:32 A.M.
The applicant filed the present release
application before learned Magistrate on
behalf of his father on 13.05.2022 stating
that father of the present applicant run a
firm Kamal Sarees, due to illness and old
age of his father, the applicant solely look
after the aforesaid firm. The applicant
contracted Sapos Services Pvt. Ltd. situated
at
Bangalore.
The
amount
of
Rs.
2,00,00,000/- has been delivered to Sapos
Services Pvt. Ltd. which is endorsed in the
cash book and ledger account of the firm.
Ankit Shukla agent of Sapos Services Pvt.
Ltd., who delivered the aforesaid amount to
the accused persons and except the present
applicant, there is no other owner of the
aforesaid Indian currency.

(iii) Accused persons have not
filed any release application claiming the
owner of the aforesaid Indian currency in
their favour.

(iv) The opposite party no. 2 /
first informant have a collective agents has
given a consent in favour of the present
applicant for release the aforesaid amount.

(v) The Income Tax Department
has not filed any proceedings against the
order passed by Additional Sessions Judge,
Court No. 2, Varanasi on 02.07.2024 in a
Criminal Revision.

(vi) The learned Magistrate has
observed that applicant is prima-facie
owner of the aforesaid Indian currency.

23. In view of the aforesaid facts
and circumstances and keeping in mind the
position of law in the judgment of
Sunderbhai Ambalal Desai (Supra), the
present application under Section 482 of
the Code stands allowed. The impugned
orders dated 13.10.2022 and 01.07.2024
passed by the Additional Civil Judge (Sr.
Division)/Judicial Magistrate, Court No. 2,
Varanasi and Additional District and
Sessions Judge/Special Judge (POCSO
Act), Court No. 2, Varanasi, arising out of
Case Crime No. 0046 of 2022, under
Sections 419, 406, 420, 120B, 411, 467,
468, 471 of I.P.C., P.S. Chetganj, District
Varanasi, are hereby quashed and Indian
currency, which has been seized by the
police under Section 102 of Cr.P.C. during
the investigation of Case Crime No. 46 of
2022, under Sections 419, 420, 406, 120-B,
411, 467, 468, 471 of I.P.C. is liable to be
released as interim release subject to the
judgment of case in favour of the applicant
after submitting indemnity bond with
undertaking that after decision of this case,
if aforesaid released amount is found to be
4 All. Prem & Anr. Vs. State of U.P.
13
paid to any other person, applicant
will return within stipulated time as
directed by the trial court as well as after
furnishing a surety of immovable property
having value of Rs. 2,00,00,000/- by the
applicant on following conditions:

(i) The learned Magistrate is
directed to release the aforesaid Indian
currency in favour of the applicant an
interim release subject to the decision of
the case;

(ii) After preparing a detail
Panchnama/ inventory of the seized Indian
currency of Rs. 1,87,00,000/- which has
been seized by the police on 28.04.2022
with their numbers or denomination and the
accused persons, first informant and the
applicant shall sign the said inventory, after
taking colour photographs
of
Indian
currency.

(iii) The photographs of such
Indian currency notes should be attached
and counter signed by the first informant,
accused
persons
and
the
present
applicant.

 (iv) The court concerned is
directed to interim release the aforesaid
amount as ordered, within a week after
submitting the indemnity bond as well as
surety aforesaid.
---------
(2025) 4 ILRA 13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 1216 of 1984

Prem & Anr. ...Appellants
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Nitansh Kumar Roy

Counsel for the Respondent:
D.G.A.

Criminal Law-Code of Criminal Procedure,
1973-Section 374- Indian Penal Code,
1860 - Sections 302, 328 r/w section 34
Appeal against conviction under section
302, 328 r/w section 34 of Indian Penal
Code--- Case of suspected poisoning---It is a
case of circumstantial evidence and there is
no direct ocular evidence available to prove
the guilt of the accused persons. The chain of
circumstances is not so complete in the
present case to prove the guilt of the accused
with
reasonable
definiteness---
The
prosecution has failed to prove the charges
levelled against the accused persons beyond
any reasonable doubt particularly in respect
of factum of administration of poison and
even mixing or adulteration of poison in
laddus that were given to the children--- No
poisonous substance was found in their
stomach wash--- Impugned judgement set
aside, appellants are acquitted of all the
charges.

Appeal Allowed. (Para 16 & 18) (E-15)

List of Cases referred-:

1. Sharad Birdhichand Sarda Vs St. of Mah.,
(1984) 4 SCC 116

2. Bhagwan Singn & anr.Vs St. of M.P., AIR
2003 SC 1088

3. Hari Prashad @ Kishan Sahu Vs St. of
Chhatisgarh, (2024) 2 SCC 557

4. St. of U.P. Vs Brijesh & anr., 2022 (119)
ACRC 574.

5. Hari Prashad @ Kishan Sahu Vs St. of
Chhatisgarh, (2024) 2 SCC 557

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Jitendra Kumar Sinha, J.)