| |
CDJ 2026 MHC 422
|
| Court : High Court of Judicature at Madras |
| Case No : CRL.R.C. No. 2866 of 2025 |
| Judges: THE HONOURABLE MR. JUSTICE SUNDER MOHAN |
| Parties : Gayathri, Chennai Versus The State Rep. By Inspector of Police, Chennai |
| Appearing Advocates : For the Petitioner: P. Santhosh, Advocate. For the Respondent: S. Balaji, Government Advocate (Crl.Side). |
| Date of Judgment : 02-01-2026 |
| Head Note :- |
| BNSS, 2023 - Section 438 r/w 442 - |
| Summary :- |
1. Statutes / Acts / Rules / Orders / Regulations, and Sections Mentioned:
- Section 438 r/w 442 of BNSS
- BNSS
- Section 102 Cr.P.C.
- Sections 8(c) and 20(b)(ii)(B) of NDPS Act, 1985
- NDPS Act, 1985
- Criminal Law Amendment Ordinance, 1944
- Section 107 BNSS
- Bharatiya Nagarik Suraksha Sanhita, 2023
2. Catch Words:
seizure, attachment, interim custody, confiscation, revision, bond, surety
3. Summary:
The petitioner, accused under the NDPS Act, sought the return of gold ornaments seized in 2021, arguing that Section 102 Cr.P.C. was inapplicable and that interim custody should be granted. The Special Judge dismissed the petition, relying on the prosecution’s claim that the jewels were bought with proceeds of contraband. On revision, the Court held that the two conditions for invoking Section 102 Cr.P.C.—property being stolen and creating suspicion of an offence—were not satisfied. Consequently, the Court directed that the jewels be returned to the petitioner on interim custody, subject to a bond, sureties, and restrictions on alienation or alteration. The impugned order was set aside.
4. Conclusion:
Petition Allowed |
| Judgment :- |
|
(Prayer: Criminal Revision Case under Section 438 r/w 442 of BNSS, 2023 to call for the records pertaining to the impugned order dated 08.05.2025 in Crl.M.P. No. 1740 of 2025 made by Special Judge, II Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai and set aside the same.)
1. The revision challenges the dismissal of the petitioner’s application in Crl.M.P. No. 1740 of 2025 by order dated 08.05.2025 by the learned Special Judge, II Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai, which was filed seeking return of gold ornaments seized during the course of investigation in Crime No. 947 of 2021.
2. The petitioner is an accused in Crime No. 947 of 2021 registered for offences under Sections 8(c) and 20(b)(ii)(B) of NDPS Act, 1985. The respondent Police seized certain jewels from the petitioner at the time of her arrest. The petitioner sought return of those gold ornaments by filing Crl.M.P. No. 1740 of 2025 before the Special Judge, II Additional Special Court for Exclusive Trial of Cases under NDPS act, Chennai. The learned Trial Judge found that since the prosecution claimed that the jewels seized from the petitioner were purchased out of the sale proceeds of the contraband, the same cannot be handed over to the petitioner and dismissed the said petition.
3. Learned counsel for the petitioner would submit that the alleged seizure was made in the year 2021; that the respondent Police have no jurisdiction to seize the gold jewels under Section 102 Cr.P.C. and that the conditions to invoke Section 102 of Cr.P.C. having been satisfied, the petitioner is entitled to interim custody of the gold jewels. Hence, the learned counsel for the petitioner would submit that the jewels may be returned to the petitioner on stringent conditions.
4. Per contra, learned Government Advocate (Crl.Side) would submit that the petitioner is a habitual offender; that since the gold jewels were purchased by sale of the contraband, they are liable to be confiscated in the event of petitioner’s conviction. Therefore, he would submit that the Trial Court was right in dismissing the petitioner’s application.
5. Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) for the respondent.
6. The seizure of gold jewels was made by invoking Section 102Cr.P.C. This Court has repeatedly held that in order to invoke Section 102 Cr.P.C., one of the two conditions stipulated thereunder has to be satisfied, i.e., (i) the property seized must be a stolen property and (ii) the property must create a suspicion of commission of offence. In the case on hand, the aforementioned two conditions have not been satisfied as admittedly, the property is not a stolen property and the property does not create a suspicion of commission of any offence. The respondent’s case is that the jewels have to be confiscated in the event of petitioner’s conviction. In such an event, the respondent ought to have resorted to attachment of the property under the Criminal Law Amendment Ordinance, 1944 as the alleged offence is said to have taken place in the year 2021. In fact, Bharatiya Nagarik Suraksha Sanhita, 2023 provides for attachment under Section 107 BNSS for offences committed after the coming into force of the said enactment. Therefore, this Court is inclined to set aside the impugned order and direct that the interim custody of the gold jewels be handed over to the petitioner.
7. Accordingly, the impugned order dated 08.05.2025 passed in Crl.M.P. No. 1740 of 2025 is set aside. The respondent is directed to hand over interim custody of the gold jewels to the petitioner subject to the following conditions:
(i) The petitioner shall execute a bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties each for a likesum to the satisfaction of the learned Special Judge, II Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai.
(ii) The petitioner shall not alienate or alter the jewels;
(iii) The petitioner shall produce the jewels as and when required by the Trial Court.
8. The criminal revision case stands disposed of with the above directions.
|
| |
