526DE SILVA A.J.—Costa v. Peiris.
1933Present: de Silva A.J.
COSTA v. PEIRIS.
P. C. Chilaw, 38,040.
Search warrant—Order respecting property seized—Powers of PoliceMagistrate—Right to restore property to person from whom it is taken—Criminal Procedure Code, ss. 413 and 419.
Under section 419 of the Criminal Procedure Code a Police Magistratehas power to order property seized on a search warrant to be restoredto the'person from whom it was taken. Before exercising his discretionunder the section the Magistrate is bound to give notice to the adverseparty.
PPLICATION to revise an order made by the Police Magistrate ofChilaw.
Hayley, K.C. (with him Ranawake and R. H. E. de Silva), for theapplicant.
V. Perera, for the respondent.
Cur. adv. vult.
May 22, 1933. de Silva A.J.—
On October 26, 1932, the complainant charged the accused withcriminal misappropriation of certain property which included an ironsafe said to contain about Rs. 1,300 in cash. On October 29, a searchwarrant was issued by the learned Police Magistrate of Chilaw directinga search for the property in the house of the accused. On October 31,a return was made and among the things produced was a sum ofRs. 3,230.92, the greater part, if not all of which, was found in the safe.Inquiry into the case was fixed for November 19, 1932. On November1, the proctor for the accused moved that a sum of Rs. 1,300 be keptin Court and that the balance of the money produced be returned tothe accused. The application was supported by an affidavit by theaccused in which he claimed the entire sum of Rs. 3,230.92. Thelearned Magistrate without notice to the complainant allowed theaccused to remove a sum of Rs. 1,500 of the money in Court on theaccused giving a personal bond in Rs. 3,000 for its return if called uponso to do. The complainant moves in revision that the order of thelearned Magistrate be set aside and that the accused be directed tobring back the money into Court.
It is argued for the complainant that the learned Magistrate had nopower to make the order in question, and, even if he had the power,that the order should not have been made.
It is necessary to examine the powers of a Police Magistrate in respectof articles seized on a search warrant. Chapter 6 of the CriminalProcedure Code deals with process to compel the production ofdocuments and other movable-property, and part B (sections 68 to 71)of that chapter relates to search warrants. Sections 68 to 70 providefor the issue of search warrants and section 71 prescribes the procedure
DE SILVA AJ.—Costa v. Peiris.
for the production in Court of things seized. There is no section eitherin part B or in the rest of the chapter providing for the disposal of thearticles so seized. The “disposal of property the subject of offences”is provided for in chapter 40.
It is argued for the complainant that section 413 of chapter 40 is theonly section under which the Magistrate could have acted, and that hehad no power to act under the section till the trial was concluded. Thesection provides for the disposal of property (a) at the conclusion of thetrial, (b) in respect of property produced before it, and (c) on the Courtbeing satisfied that an offence has been committed regarding suchproperty or that the property has been used for the commission of anoffence. All these conditions must be satisfied before action can betaken trader the section. Property seized on a search warrant maynot conform to one or more of such conditions.
It is necessary that a Court issuing a search warrant should have apower of disposal over all the articles produced in Court, whether ornot the conditions I have referred to are satisfied. Some articles producedmay be utterly unnecessary for the proceedings. Unless it is altogetherimpossible, a view of the law ought to be taken giving a Court such apower. The only* section on which such a power can be founded issection 419 and I will proceed to examine its provisions.
The section ream? “The seizure by any police officer of propertytaken under section29 or alleged or suspected to have been stolen orfound under circumstances which create suspicion of the commissionof any offence shall te forthwith reported to a Police Magistrate whoshall make such order as he thinks fit respecting the delivery of suchproperty to the person) entitled to the possession thereof, or if suchperson cannot be ascertained respecting the custody and productionof such property ”. Fullon J. in In re Lakshman Govind Nirgude ’,disagreeing with earlier decisions of the Indian Courts, thought that thecorresponding Indian section (which is identical with ours) applied toseizures made under a Magistrate’s warrant as well as to those withouta warrant. I am of thfe same opinion. The section directs a reportto be made to the Police',Magistrate of the seizure of property “foundunder circumstances which create suspicion of the commission of anyoffence ”. The phrase was intended primarily to cover circumstancesdiscovered for the first time, at the time of the seizure, but it is capableof a wider interpretation. The fact that the property seized conformsto the description appearing^ in a search warrant issued by a PoliceMagistrate after due consideration of facts placed before him is acircumstance sufficient to “ create suspicion of the commission of anoffence”. I think, therefore, that section 419 is applicable to propertyseized on a search warrant.
Chapter 40 is headed “ Of the disposal of property the subject ofoffences ”, but I do not think that the heading gives any strong indicationthat the sections which follow relate only to property which has beenthe subject of an offence. Section 413, in very clear language, relatesnot only to property in respect of which an offence has been committed
1I. L. R. 26 Bom. 552.
DE SILVA A.J.—Costa v. Peiris.
but also to property which has been used for the commission of anoffence. The latter is not the subject of an offence, so that it appearsthat the heading in this chapter cannot be utilized to any great extentin the interpretation of the sections which follow.
When the property seized has been removed from the possession ofa person a Court has a larger discretion under section 413 as to the orderit can make than it has under section 419. Under the latter sectionit has either to return the property to the same person or refuse to doso if it thinks it necessary to detain the property for the purposes ofproceedings before it. The former power was referred to in Williamv. Silva’ and is in accordance with the decisions in the cases referred totherein. The possession of property cannot be lightly interfered with, andI do not think it has power under the section to order property seized andremoved from the possession of one person to be given to another person.If a Court under section 413 finds that an offence has been committedin respect of property produced before it or that it has been used for thecommission of an offence, then it may make order interfering with thepossession of the person from whom the property was taken. If it doesnot arrive at one of these findings then the “ person entitled to possession ”is the person from whom it was taken. Any person disputing his rightsmust do so in civil proceedings.
Frequently, it is proper not to make an order until after the conclusionof the case. In such event a Court will order that the property be keptin safe custody until the case is concluded. At that stage, if theconditions of section 413 are satisfied, order should be made under thatsection. If the conditions are not satisfied, if for instance propertyhas been zeized and produced in respect of which no offence has beencommitted and which has not been used for the commission of an offence,an order for delivery will have to be made under section 419. In otherwords a Court may, and frequently will, desist from making an orderunder section 419 until it is satisfied that section 413 is inapplicable.It cannot be so satisfied until the case is concluded.
Under section 419 a Court has to exercise a judicial discretion. Itshould hear both the complainant and the accused before doing so. Onan application by an accused for an order of delivery of property seized,it may well be that the complainant is able to point out marks on, orother characteristics of, the property, furnishing relevant and importantevidence which a Court is unable to detect for itself. It may be thatthe complainant is himself contemplating an application for an orderin his favour under section 413. Befofe property seized is handedover on the giving of security an adverse party has a right to be heardon the nature of the security to be given, if on nothing else. There arenumerous other reasons why both sides should be heard before thejudicial discretion vested in a Court under section 419 is exercised.
It is unfortunate that in this case the complainant was not heardbefore an order for delivery was made. I set aside the order of thelearned Magistrate. The accused has given a bond for the return whencalled upon of the property delivered to him, and the Magistrate will
‘ 22 N. L. R. 403.
DALTON SJJ.—Appuhamy v. Appuhamy.329
order him to return it. He will return it, as far as it is possible, in thecurrency in which he received it. If the accused after bringing theproperty into Court makes a further application, notice will issue onthe complainant who will be heard, and the learned Magistrate willapply the principles set out above in making, order.
COSTA v. PEIRIS