P L D 1963 Dacca 864 (PLP)

9. It is difficult to understand as to how in the face of the suggestions to P. W. 1 and P. W. 4 to be quoted later the learned Judge could state that the accused disclaimed ownership of the articles and did not challenge complainant's claim.

10. The trial Court has stated the defence case as under: "The defence case is that all the articles seized by the police bore no special mark of identification, and that they belong to the accused." Cross‑examination of P. W. I and P. W. 4 as under also shows that the complainant's claim was challenged. P. W. 1 in cross: --‑"I do not know if accused carried on wool business from 2 years before occurrence. It is not a fact that the properties do not belong to me and I was claiming them falsely." P. W. 4 in cross: "It is not a fact that the goods do not belong to us." Further D. Ws. 1 and 2 have stated that accused was a dealer in wool himself.

11. In examination under section 342 of the Code of Criminal Procedure also the accused stated in reply to question Have you anything more to say? Answer :‑Yes, I deal with wool no stolen article was found in my house."

12. This shows that the accused at any rate claimed the wool to be his as a dealer in wool. Under those circumstances, there is no justification for the order of the learned Sessions Judge and the learned Judge's observation, "Complainant's case was not challenged" is found to be incorrect.

13. As to the principle applicable to the present case, some decisions as under have been cited at the Bar in the cases of Sattar Ali v. Afaal Muhammad ((1927) 28 C I. J 546), of which the facts and decision are as under: "The petitioner was accused of abetment of theft of an elephant and the elephant was recovered from his possession by the Police. He was acquitted on the ground that he had acquired a share in the ownership of the elephant but the Magistrate made an order handing over the elephant to the complainant until the Civil Court should adjudge to the contrary :‑ Held, that the order handing over the elephant to the .complainant was illegal and that the animal should be handed back to the accused." The next decision V. K. Vaiyapuri Chetti v. Sinnlah Chetty ((1931) 32 C L J 355), is as under :‑ "Under section 517, Criminal Procedure Code, if no crime is made out the Magistrate has a discretion to decide the question of possession, but as a rule, the article seized should be returned to the person from whom it was seized unless there are special circumstances which would render such a course unjustifiable. The mere fact that two parties are quarrelling about possession is not one of the special circumstance which take a case oLt of the general rule. It is advisable to keep these civil disputes out of Criminal Courts." The next decision cited is that of Johardal Debisahal Agarwal v. Emperor (50 Cr. L J 104), in which it was held as under: "When an accused is acquitted of a charge of theft and the property found with him is not found to be the subject of theft he is entitled to recover that property; but where the property is found to be the subject of theft and the acquittal is due to incomplete evidence and upon benefit of doubt and the accused is not lawfully in possession of the entire property, the property will not be delivered to him." The decision in the case of Ramphal Tatwa v. Josodia Malain, (40 C W N 862) was also cited. This decision is as follows :‑‑ "Under section 517 of the Criminal Procedure Code a Magistrate or the Court revising his order under section 520, is proved to have been committed in respect of the property and the accused is acquitted, to restore the property to the person from whom it was last taken. When there are conflict ing claims to the property, it may properly be ordered to remain in the custody of the trial Court, pending decision by a Civil Court of competent jurisdiction."

14. In the light of the decision in 50 Criminal Law Journal, 104 the accused is not entitled to the articles other than wool. He having been let off on benefit of doubt only and because the D. Ws. were not considered, so far as the wool goes it appears that those are his. The other articles will be in the custody of the Court till right thereto has been established in the Civil Court. In the light of the rulings as above, my decision is that the order of the learned Sessions Judge directing return of the wool to the complainant must be set aside and it is ordered that the wool be delivered to the accused from whom it was A seized under the seizure list. So far as the other articles go, those will be in the custody of the Court the respective owners have established their claims in the Civil Court. On the state of evidence as above and in the light of the grounds 1 and 2, the complainant has not been able to substantiate his claim so far as the other articles go, nor has the accused himself set up any successful claim to those. Those articles will, therefore, remain in the custody of the Court.

15. The appeal is thus allowed and the order of the learned Sessions Judge is set aside. The appeal is disposed of in the terms as above. S. B./A. H. Appeal allowed.