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Whether court can permit sell of seized gold during pendency

Whether court can permit sell of seized gold during pendency of criminal case?

The order of interim custody shall, however, depend on the nature of the property and the circumstances of the case. Where the Magistrate finds that the person who is given custody of the property under this Section is not taking proper care to look after it ,or is misusing it, he may pass fresh order regarding the custody of such property. It is for this reason that the order passed by the Court under Section 451 is not final, it is essentially an interlocutory in nature and hence no revision lies against such order. The Magistrate may order the property which is perishable or subject to natural decay to be disposed of by sale. He may also order any other property to be disposed of by sale if he thinks it expedient to do so in the circumstances of the case.

It must be stated that while passing an order under Section 451, the Court merely decides about the custody or disposal of the property involved in the case, but does not decide the question of title or rights of the parties over the property. The term "production before the Court" with reference to the property used in this section does not necessarily mean actual physical possession or custody by the Court. The Court may have control over the property even without its actual possession or custody.

It is needless to mention that when the property has any evidentiary value, it is to be kept intact and the condition of non-alienation is imposed to ensure its production during the course of evidence for the purpose of marking as a material object. However, when the property has no evidentiary value, and only the value of the property is to be properly secured for passing of final order under Section 452 of the Code the necessity of keeping such property intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law. Further, the production of property which has evidentiary value during evidence is a part of fair trial.

Admittedly and undisputedly in the instant case the property i.e. the gold was seized as evidence and thus it can be returned to the owner only after final judgment.

IN THE HIGH COURT OF CALCUTTA

C.R.R. Nos. 696 and 2342 of 2014

Decided On: 03.06.2015

Appellants: Hari Om Export of Mahabirsthan
Vs.
Respondent: The State of West Bengal

Hon'ble Judges/Coram:Shib Sadhan Sadhu, J.