1. By way of this Criminal Misc. Petition under Section 482 Cr.P.C., the petitioner-firm, through its power of attorney holder, prays for releasing the cash amount of Rs.1,69,00,000/- which has been recovered from the thieves who had attempted to steal the money while it was being carried by the Manager of the petitioner firm namely; Mr. Gautam Kumar in the train. The petitioner-firm has also prayed for setting aside the order impugned dated 03/09/2019 passed by the Court of learned Additional Sessions Judge No.1, Kota in Criminal Misc. Application No.44/2019 under Section 457 Cr.P.C. for releasing of the said amount has been rejected.
2. Learned counsel for the petitioner-firm submitted that the application was moved under Section 457 Cr.P.C. before the Court of Additional Sessions Judge No.1, Kota, however, the same has been rejected vide order impugned solely on the ground that it is not possible to decide as to whether the cash recovered belongs to Mr. Gautam Kumar in his personal capacity or whether it is belonging to the petitioner-firm.
2.1 Learned counsel for the petitioner invited attention of this Court to the letter issued by the Deputy Director, Income Tax (INV)-1, Udaipur to the Additional Chief Judicial Magistrate, Railway Court, Kota (Raj.) dated 19.07.2019/07.08.2019 wherein it has been stated as under:-
2.2 Learned counsel for the petitioner further submitted that in view of the aforesaid letter, there should have been no iota of doubt with regard to ownership of the cash and that the particulars of the cash have already been mentioned in the Income Tax Return of the petitioner-firm.
2.3 Learned counsel for the petitioner further submitted that the Supreme Court in Sunderbhai Ambalal Desai & Ors. Vs. State of Gujarat, 2002 10 SCC 283 has made observations with regard to valuable articles and currency notes as under:-
"11. 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, 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:-
(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
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 or 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 SIIO 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."
2.4 Learned counsel for the petitioner also relied upon the judgment passed by coordinate Bench of this Court at Principal Seat, Jodhpur in Kamlesh Shah Vs. State, SB Criminal Misc. (Pet.) No.2426/2018, decided on 19/09/2018 wherein, while relying upon the Income Tax Department NOC, the coordinate Bench directed for release of the amount of Rs.30 Lac seized by the Police officials to the person in whose favour the Income Tax Department had issued the necessary NOC.
3. Learned Public Prosecutor did not seriously object to the release of the amount. However, he submits that a suitable condition may be laid down with regard to the trial so that the trial may not be affected.
4. Heard learned counsel for the parties, perused the judgments (supra) and also carefully examined the letter of the Deputy Director of Income Tax (INV.)-1, Udaipur.
5. It is noticed that the Income Tax Department, at its own level, has conducted an enquiry with regard to the cash amount recovered. An affidavit was filed by Mr. Gautam Kumar under Section 131 of the Income Tax Act. Mr. Kamlesh Shah, who was general power of attorney holder and husband of Smt. Nina Shah, Sole Proprietor of the petitioner-firm was also examined and the Income Tax Authorities have reached to the conclusion that the amount of Rs.1,69,00,000/- was duly accounted for in the accounts books of the petitioner-firm M/s. MECTEC and as the amount recovered is Rs.1,69,00,000/-, the same, therefore, deserves to be released.
6. In Sunderbhai Ambalal Desai & Ors. Vs. State of Gujarat (supra), the Supreme Court has observed that photographs should be taken so that the evidence is not lost, altered or destroyed.
7. Similar view has also been taken by this Court in earlier judgment in Amore Jewels Private Limited & Anr. Vs. Principal Commissioner of Income Tax & ors. (SB Civil Writ Petition No.17508/2017, decided on 27/04/2018.
8. Keeping in view above, the instant Criminal Misc. Petition is allowed. The order impugned dated 03/09/2019, passed by the learned Additional Sessions Judge No.1, Kota in Criminal Misc. Application No.
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44/2019 is set aside and it is directed that the aforesaid cash amount of Rs.1,69,00,000/- be released after preparing a detailed and appropriate Panchnama of the cash amount with due photographs of the amount mentioning all the particulars of the concerned currency notes as well as details of the Proprietor/power of attorney holder of the petitioner firm. Due attestation and counter signatures of the complainant, accused as well as the person to whom the custody of the currency notes is handed over be also taken on the photographs. A surety with a personal bond of the Proprietor of the petitioner firm shall be taken for making available the cash amount as and when required by the learned trial court.