TaxTMI 
TaxTMI 
2024 (5) TMI 790
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....in reporting the seizure to the jurisdictional Magistrate. The facts in the instant case, which we shall advert to later below, have given rise to following question of law: What is the implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate as provided under Section 102(3) Cr.P.C.? more specifically; Does delayed reporting of the seizure to the Magistrate vitiate the seizure order altogether? That is the question which needs to be answered in these appeals. 3. Our research indicates that there is no authoritative pronouncement of this Court on this issue. If we turn to the pronouncements of the High Courts, there are decisions See Table at Annexure A for a compilation of the 36 decisions on this issue. which have directly confronted this question. Having reviewed these decisions, we find that, broadly, there are two prevailing strands of thought: one set of cases holding that delayed reporting to the Magistrate would, ipso facto, vitiate the seizure order; and the other view being that delayed reporting would constitute a mere irregularity and would not vitiate the seizure order. 4. The former view has been justifi....
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....h Courts, we find it expedient and necessary to settle the conflict and bring in uniformity in adjudication. LEGISLATIVE HISTORY - A COMPARATIVE ANALYSIS Criminal Procedure Codes Relevant Provision 1882 Hereinafter referred to as "1882 Code" Section 523- Procedure by police upon seizure of property taken under Section 51 or stolen The seizure by any Police-officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a magistrate, who shall make such order as he thinks fit respecting the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. 1898 Hereinafter referred to as "1898 Code" Section 550- Powers to police to seize property suspected to be stolen: Any police-office may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such police-officer, if subordinate to the office in char....
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....operty, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same: Provided that where the property seized under subsection (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 505 and 506 shall, as nearly as may be practicable, apply to the net proceeds of such sale. 7. The responsibility of the police officer to promptly inform the Magistrate about the seizure can be historically traced to the 1882 Code. Oddly enough, this provision was absent in the 1898 Code. In the 1898 Code, however, it was provided that if the seizing officer was below the rank of an officer-in charge of a police station, then such officer was under a ....
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....d for inserting the amendment was to overcome a 'lacuna' in the law. What could have been the lacuna in the law that impelled the insertion of this amendment? 10. In our view, the answer to this question can be derived by referring to the provisions in Chapter XXXIV of the 1973 Code which is titled as 'Disposal of Property'. Section 457 Cr.P.C. sets out the procedure to be followed by police upon seizure of the property. Sub section (1) begin with the words: 'Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial.....". Similarly, we may refer to Section 459 Cr.P.C. which empowers the Magistrate with the power to auction/sell seized property in certain situations. It begins with the words: 'If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that......". 11. Both, Section 457 Cr.P.C. and Section 459 Cr.P.C. contemplates the act of seizure by police to be reported to the Magistrate s....
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....eized could not have given rise to suspicion concerning the commission of a crime, in order for the authorities to justify the seizure. State of Maharashtra Vs. Tapas D. Neogy, 1999/INSC/417 The pre-requisite for exercising powers under Section 102(1) is the existence of a direct link between the tainted property and the alleged offence. It is essential that the properties sought to be seized under Section 102(1) of the Cr.P.C. must have a direct or close link with the commission of offence in question. Supra, 17. 14. As stated hereinbefore, the obligation to report the seizure to the Magistrate is neither a jurisdictional pre-requisite for exercising the power to seize nor is the exercise of such power made subject to compliance with the reporting obligation. Contrast this with Section 105E Cr.P.C., 1973 which provides for similar power of seizure and attachment of property. While Section 105E(1) confers the substantive power to make seizure under circumstances provided in that section, sub-section (2) of Section 105E declares that the order passed under Section 105E(1) 'shall have no effect unless the said order is confirmed by an order of the said Court, within a period of th....
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....ion for seizure of the property. Since the proof of prejudice on part of the accused and the explanation for delay on part of the prosecution can only be demonstrated at trial, the effect of non-compliance becomes an issue to be adjudicated at the time of appreciation of evidence. Moreover, this Court has consistently held that even illegalities in the investigation (including illegality in search and seizures) is no ground for setting aside the investigation in toto HN Rishbud v. State of Delhi (1954) 2 SCC 934. 17. In the background of the aforesaid discussion, therefore, the line of precedents which have taken the position that 'seizure orders' are vitiated for delay in compliance with the reporting obligation are declared to be manifestly erroneous and are accordingly, overruled. The relevant question to be determined was not whether the duty of the police to report the seizure to the Magistrate is mandatory or directory. Instead, what ought to have been inquired into was whether the exercise of the seizure power was subjected to compliance of reporting obligation, as illustrated in Section 105E Cr.P.C. 18. Merely because we have held that non reporting of the seizure for....
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....ans that the act is to be done within a reasonable time having regard to the object of the provision and the circumstances of the case [Ex parte Lamb, (1881) 19 Ch D 169; 2 Chit. Arch. Prac., 14th Edition] 22. From the discussion made above, it would emerge that the expression 'forthwith' means 'as soon as may be', 'with reasonable speed and expedition', 'with a sense of urgency', and 'without any unnecessary delay'. In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished. 23. We are of the considered view that the said expression must receive a reasonable construction and in giving such construction, regard must be had to the nature of the act or thing to be performed and the prevailing circumstances of the case. When it is not the mandate of the law that the act should be done within a fixed time, it would mean that the act must be done within a reasonable time. It all depends upon the circumstances that may unfold in a given case and there cannot be a straight-jacket formula prescribed in this regard. In that sense, the interpretation of the word 'forthwith' would depend upon the terrain in which it tr....
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.... Court by filing an original petition under Section 482 Cr.P.C. and sought for de-freezing of the bank accounts. The High Court vide the impugned order has allowed the application of the Respondents-accused for de-freezing of the bank accounts, and therefore set at naught the seizure order on the sole ground that the order of seizure was not forthwith reported to the Magistrate. 27. The reasoning adopted by the High Court cannot be sustained in the light of aforestated discussion. This takes us to the consequential question, namely, whether at this distance of time, we ought to direct freezing of the bank accounts afresh? The answer has to be in the negative, since undisputedly by virtue of the impugned order, the bank accounts of the respondents has been defreezed and resultantly, the Respondents would have operated the accounts and amount of Rs.19,83,036/- which had been frozen would have been withdrawn. The ends of justice would be met and the interest of prosecution would be served if the Respondents are called upon, forthwith, to execute a bond undertaking to deposit the amount (which has been thus far withdrawn from the seized bank accounts) before the jurisdictional Court....