DISPOSAL OF PROPERTY SEIZED BY A POLICE OFFICER.

Duncan Abeynayaka – LLB, Attorney At Law.

 

CRIMINAL PROCEDURE CODE

29. Whenever a person -

(a) is arrested by a peace officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; or

(b) is arrested without warrant or by a private person under a warrant and cannot legally be admitted to bail or is unable to furnish bail, the peace officer making the arrest, or when the arrest is made by a private person the peace officer to whom he hands over the person arrested, may subject to section 30 search such person and place in safe custody all articles other than necessary wearing apparel found upon him, and any of such articles which there is reason to believe were the instruments or the fruits or other evidence of the crime may be determined until his discharge or acquittal.

425.     (1) When an inquiry or trial in any criminal court is concluded the court may make such order as it thinks fit for the disposal of any document or other property produced before it regarding which any offence appears to have been committed or which has been used for the commission of any offence.

(4) In this section the term "property" includes in the case of property regarding which an offence appears to have been committed not only such property 'as has been originally in the possession or under the control of any party but also any property into or for which the same may have been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise. 

431.    (1) The seizure by any police officer of property taken under section 29 or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence shall be immediately reported to a Magistrate who shall forthwith 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.

(2) If the person so entitled is known the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown the Magistrate may detain it and shall in such case publish a notification in the court notice-board and two other public places to be decided on by the Magistrate, specifying the articles of which such property consists and requiring any person who may have a claim thereto to come before him and establish his claim within six months from the date of such public notification.

(3) Such notification may also, if the Magistrate thinks fit, be published at least once in newspapers published in Sinhala, Tamil and English if the value of the property amounts to two thousand five hundred rupees or more.

 

01. WILLIAM v. SILVA. 22 NLR 403

Where property is brought into Court as having been, in the possession of a particular person upon an allegation that an offence has been committed in regard to such property,and the Court finds that no offence has been committed, it may order the restoration of the property to the person in whose possession it had been found.

Section 413 (425) of the Criminal Procedure Code refers only to those cases in which there is a conflict of claims to the property brought into Court. In such cases the section provides that the Court may make such order as it thinks fit for the disposal of property produced before it, provided (1) the inquiry or trial is concluded before it, (2) the property is that regarding which any offence appears to have been committed or to that which- had been used for the commission of any offence.

 

02. COSTA v. PEIRIS 35 NLR 326

Under section 419 (431) of the Criminal Procedure Code a Police Magistrate has power to order property seized on a search warrant to be restored to the person from whom it was taken. Before exercising his discretion under the section the Magistrate is bound to give notice to the adverse party.

 

03. JOSEPH V. THE ATTORNEY-GENERAL 47 NLR 446

Where an accused is acquitted on the ground that the evidence to prove the alleged offence is insufficient, the court can, nevertheless, by virtue of section 413 (1) of the Criminal Procedure Code, make an order for the disposal of the property produced before it by directing its delivery to a person entitled to its possession, if the court considers that an offence has been committed in respect of that property. The opinion of court as to the ownership of the property may be based on a confession made by the accused; section 24 of the Evidence Ordinance which makes confessions “ irrelevant in a criminal proceeding ” does not prevent a court from acting on them in an application under section 413 (1) of the Criminal Procedure Code.

Section 517 (1) of the Indian Code enacted before its amendment:—

“When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence

Under that section a Criminal Court would, therefore, have jurisdiction to make an order in four classes of cases—

(a) where property is produced before it,

(b) where property is in its custody,

(c) where there is property regarding which any offence appears to have been committed,

(d) where the property has been used for the commission of the offence

On the other hand section 413 (1) of our Code limits the jurisdiction of the Criminal Court only to two classes of cases—

(а) where the property has been produced before it and an offence appears to have been committed,

(b) where the property has been produced before it and the property has been used for the commission of any offence.

 

04. SUGATHAPALA VS. J.K. THAMBIRAJAH 67 N.L.R. 91

That it is open to a Magistrate, when be acts under section 419 (1), to direct the property found in the possession of one person to be delivered to another person who is entitled to possess it. Section 419 has conferred jurisdiction on the Magistrate to decide who is entitled to the possession of such property. In exercising that power, the Magistrate is not deciding a civil dispute, but only the right of possession in respect of the property. In the absence of anything to show the title to the property, it should be ordered to be delivered to the person in whose possession it was when it was seized by the police.

 

05. W. BALAGALLE VS K. SOMARATNE 70 NLR 382

Where a person, after discovering that stolen property has been sold to him, surrenders the property to the police, the Magistrate has power under section 419 (1) of the Criminal Procedure Code to order the property to be handed over to the true owner and not to the person from whom it was taken by the police.

 

06. THIRUNAYAGAM V. INSPECTOR O F POLICE JAFFNA, 74 NLR 161

That it is open to a Magistrate, where special circumstances exist, to order property to be delivered to a person other than the person from whoso possession it was seized.

 

07. SILVA AND OTHERS VS. O.I.C. POLICE STATION, THAMBUTHTHEGAMA [1991] 2 SLR 83

Section 431(1) of the Code of Criminal Procedure Act deals with three categories of property seized by a police officer:

1. Property taken under section 29 of the Code relating to the search of persons who are arrested,

2. Property alleged or suspected to have been stolen,

3. Property found under circumstances which create a suspicion of the commission of any offence.

The section requires the matter of delivery of property to be dealt with expeditiously.

Section 431(1) and (2) give a discretion to the magistrate to decide on the following matters with regard to property, the seizure of which is reported to him:

1. Whether the property should be kept in official custody pending the conclusion of the inquiry or trial.

2. Whether the property should be delivered to the person entitled to possession pending the conclusion of the inquiry or trial on conditions to be imposed.

3. Whether the property should be delivered to such person without conditions.

08. RANAWAKA ARACHCHILAGE KUSHAN MADURANGA NAWARATNA VS HON. ATTORNEY GENERAL CA (PHC) 168/2014

Once a property is produced; which is a subject matter of criminal offence, it is the duty of the learned Magistrate in terms of Section 431 of the Criminal Procedure Code to make an order with regard to the possession of the property. The Magistrate should decide whether the property should be handed over to the person from whom the property was taken into the custody of Court or whether the property should be given to any other party other than the party from which the property is taken into the custody of the Court, or the learned Magistrate could decide whether the property should be kept under the custody of the Court.

If possession has been obtained through illegal means there is no fetter in the discretion of the Court to hand over such property to any other person who in the opinion of the Court would be the person entitled to the possession of such production.

 

09. SRI LANKA INSURANCE CORPORATION VS. DARSHANA RAJITHA HALLABAGAMAGE SC. APPEAL NO. 92/2017

I hold that the Magistrate, under Section 431(1) of the Criminal Procedure Code, has the power to make an order to hand over the property seized by a Police Officer to a person other than the person from whose custody it was taken. I further hold that on the material placed before the Magistrate, if the Magistrate can decide that the person claiming the property has got it by way of stealing the property, the Magistrate has no authority to give it to the said person.

 

10. KANAPATHIPILLAI VS. MEERASAIBU IN 58 NLR PAGE 41 

“There is well established rule that the law will presume in favour of honesty and against fraud”