Krishnaswamy Reddy, J.
1. This petition has been filed by the petitioner to set aside the order of the Commissioner of Police and Presidency Magistrate, Madras City directing the return of a conch to the second respondent herein under Section 523, Criminal P. C. The facts of the case are these; The second respondent Amir Mohideen gave a complaint to the Sub-Inspector of Police, North Beach Police station that the petitioner committed theft of a conch belonging to him. On that complaint the Sub Inspector of Police investigated the matter and examined both the petitioner and the second respondent and ultimately referred the complaint to the first respondent as a mistake of fact. Later the revision petitioner filed a petition under Sections 523, Criminal P. C. before the Commissioner of Police and Presidency Magistrate for the return of the conch. The Commissioner of Police ordered the return of the conch to the second respondent after having considered the facts as disclosed in the course of investigation, though the conch had been seized from Sultan Ibrahim to whom the petitioner was alleged to have entrusted the same.
2. Enquiry by the Commissioner of Police disclosed the following facts. According to the revision petitioner the conch was pledged by the second respondent Amir Mohideen with him as security for the amount borrowed from him and the same was kept by him with Sultan Ibrahim for safe custody. But in his statement before the Commissioner of Police the petitioner stated that towards the middle of 1966, the second respondent sold the conch to him for Rs. 4000 for cash and, as he found later that the price paid by him was exorbitant, he asked the second respondent to dispose of the conch and Rave the conch to him for the said purpose. Thereafter the second respondent did not return the conch, nor sold ii and paid the value to him. The petitioner wrote several letters to the second respondent and for a long time he did not hear from him. After some time having come to know that the second respondent had come to Madras, he questioned him and asked him about the conch. According to the petitioner, the second respondent told him that the petitioner could keep the conch with him and that he would collect Rs. 4000 and pay and take back the conch from him. After this the petitioner sent for Sultan Ibrahim and handed over the conch and three days later the second respondent met him and discussed about the conch and as there was certain misunderstanding between them the second respondent gave a complaint against him. Sultan Ibrahim was examined. According to him on or about 20th or 25th November 1967, he was sent for by the petitioner and at that time the second respondent was also with the petitioner and that the petitioner told him that there was a dispute between him and the second respondent and that he would give the conch for safe custody to him and that if later it was settled between them he could return the conch to the second respondent. He stated that he had the conch with him and it was seized by the police from him.
3. The case of the second respondent is that he bought the conch from An-namalai Chettiar in 1967 and that he wanted to sell the conch. He contacted the petitioner who was dealing in conches and known to him for some years and offered the conch for sale at the petitioner's place of business at No. 31 Adam Sahib Street and the petitioner took it from him and handed it over to Sultan Ibrahim who walked away with it and when he questioned about the same the petitioner did not give any proper reply. He further stated that thereupon his uncle and Kattuva Mohideen interfered in the matter and questioned the petitioner and the petitioner promised to return the conch that night itself, and when his uncle and Kattuva Mohideen went to him in the night, the petitioner was not there and since then he could not be got at and therefore, he gave a complaint to the Sub-Inspector of Police.
4. The Sub Inspector of Police stated in the course of investigation that it was disclosed that the conch was purchased from one Annamalai Chettiar and the second respondent offered it for sale to the revision petitioner and the revision petitioner, took the conch from the second respondent and handed it over to Sultan Ibrahim. He further stated that he thought in the circumstances, though the conch was taken away from the second respondent, the criminal intention on the part of the petitioner to commit theft was not made out and therefore, referred the case as mistake of fact.
5. The Commissioner of Police found that the conch belonged to the second respondent as it has been proved by the receipt produced by him that he purchased the conch from one Annamalai Chettiar. He also found that the records of investigation showed attempts made by the second respondent in disposing of the conch in 1967. One Abbas who was examined by the investigating officer corroborated the version of the second respondent that the second respondent offered the conch for sale to the petitioner and the petitioner look it and handed over to Sultan Ibrahim.
6. The Commissioner of Police also found that the case of the petitioner that the conch belonged to him cannot be true in view of the prevaricating versions given by him. At one time the petitioner stated that the second respondent pledged the conch with him. At another time he stated that he purchased the conch from the second respondent and that he handed over the conch to the second respondent for selling the same in the open market and hand over the price of the conch to him.
7. The Commissioner of Police rejected the case of the petitioner. The Commissioner of Police further found that, though normally the conch should be returned to the person from whom it was seized, namely, Sultan Ibrahim in this case, in the particular circumstances of this case it has been fully established that the conch belonged to the second respondent and was in his possession, that it was taken away by the petitioner and handed over to Sultan Ibrahim, and that the second respondent was entitled to possession of the conch; and he therefore ordered the conch to be returned to him.
8. The learned counsel for the petitioner contended that the Commissioner of Police erred in returning the conch to the second respondent when the police had referred the case as mistake of fact and that he should have returned the same to the petitioner though it was seized from Sultan Ibrahim to whom he entrusted it. He further contended that the Commissioner of Police ought not to have enquired into this matter, but he should have followed the general rule in cases where the offences are not made out, to return the property to the person from whom it is seized. To appreciate the contention of the learned counsel for the petitioner, it may be necessary to consider the requirements to be complied with as provided under Section 523 (1), Criminal P. C., which is as follows :
'(1) 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 disposal of such property or 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.'
9. It is clear from this provision (1) (a) that the seizure of property may be in respect of the circumstances mentioned under Section 51 or (b) in respect of the alleged or suspected offence of theft or (c) found under circumstances which create suspicion of the commission of any offence; (2) that the Magistrate has got wide discretion in respect of the disposal of such property or the delivery of such property, and (3) that in case of delivery, such property should be delivered to the person entitled to the possession.
10. To act under this provision, what is required is not the proof of the offence in respect of which the property is seized but whether the property was seized in respect of an alleged offence or under suspicious circumstances. Once the property is seized under the circumstances, mentioned in the said provision, irrespective of the fact whether the investigation by the police disclosed an offence or not, the Court has to dispose of the property. While doing so it has got absolute discretion to pass an order as it thinks fit respecting the disposal of such property. But, if it orders delivery of the property, then it has to deliver it to the person entitled to the possession thereof. In such a case, it has to satisfy itself from the records and materials available before it that the person to whom the delivery is ordered is entitled to possession. If materials are not sufficient, it can make an enquiry into the matter by giving opportunity to the claimants before passing an order. In doing so, the Court should confine itself only to find out as to who is entitled to possession of the property but not, the title of ownership thereof. Normally, in cases where the offence is not made out, the property should be delivered to the person from whom it is seized or taken. But it will depend upon the circumstances of each case. In such cases, the actual possession of the property at the time it was seized may be a relevant factor but not conclusive to determine the entitlement of such possession. The words used in Section 523 (1), Criminal P. C., are 'the person entitled to the possession of the property'. These words cannot be equated with actual possession. Nor can they be equated with the expression 'the person from whom the property is seized or taken'. A person may be in unlawful possession at the time it was seized though he has not committed the offence, and in that circumstance, it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of property at the time of seizure, but as to who is entitled to lawful possession. The expression 'entitled to possession' is the sine qua non for the delivery of property under Section 523, Criminal P. C.
11. In Karuppanan v. Guruswami : AIR1933Mad434 it was held that where the person accused of theft is acquitted and claims as his own the property seized from him it should be restored to him in the absence of special reasons to the contrary. This decision has reiterated the normal rule of restoring the property to the person from whom it is seized where the offence is not made out. The facts of that case clearly disclose that the accused who was acquitted was a bona fide purchaser of bulls alleged to have been the subject-matter of theft.
12. In Lakshmichand v. Gopikishan, : AIR1936Bom171 it was held by a Division Bench that where it is not shown that the person from whom the property was seized, had committed the offence in relation to that property, the Magistrate should hold that the person from whom the property is seized is entitled to possession of that property. The facts of that case are that the police seized the property and charged the applicant with stealing it. After investigation they referred to the Magistrate that there was no sufficient evidence against the applicant to file a charge-sheet. The Magistrate returned the property to its owner. While doing so, he relied upon the presumption arising under Section 114 of the Evidence Act that the applicant must have known that the property was stolen. The Division Bench held that the Magistrate was in error to have invoked the presumption under Section 114 in respect of the disposal of the property which would have been sufficient for a conviction and if that were so, the Magistrate should have tried and convicted him. I do not think that this decision has any bearing on the facts of this case.
13. In Purushottamdas v. State : AIR1952All470 , it was held that a person entitled, to possession is one from whose possession the property was seized and who is not found to have committed any offence such as would render his possession unlawful and it was further held that the criminal Court under Section 523, Criminal P. C. is not concerned with the ownership of the property. Even in this decision, what is emphasised is that the possession at the time of seizure must be lawful. The principle enunciated in this decision clearly indicates that the restoration of the property to the person from whom it was seized will not apply if such a possession is found to be unlawful.
14. In Paidi Subbayya v. Emperor, 1939 Mad WN 739 (2) : AIR 1939 Mad 905 Lakshmana Rao, J. held in a two sentence order that 'the property seized from the fifth accused has to be returned to him'. The facts of that case are that the property was seized from the fifth accused on a complaint given by one B to the police of theft of some articles belonging to him. The police investigated the case and found that the property belonged to the joint family of the complainant and the fifth accused. The complaint Was ultimately dismissed as one of civil nature and the property, at the suggestion of the police, was ordered to be returned to the complainant. Taking into consideration the facts of the case, the possession of the property by the fifth accused at the time of seizure cannot be said to be unlawful as he also had interest in the property.
15. In Thimma. Reddi v. Rami Reddi, 1941 Mad WN Cri 20 : AIR 1941 Mad 416 distinguishing the former case, it was held that the Magistrate in disposing of the property, has a discretion to pass orders with regard to the disposal of property on a referred charge-sheet submitted by the police that an offence under Section 411, I. P .C. is not made out in restoring the property to the complainant though the property was recovered from the accused.
16. In K. J. Singh v. C. Tomu Devi, AIR 1968 Manipur 29. it was held by the Judicial Commissioner that when once the Magistrate ascertains the person, from whose possession the property was seized and whose possession was not unlawful then the Magistrate must hold him to be entitled to the possession of the same. This decision again emphasises the fact that the property can be restored to the person from whom it was seized provided that the possession at the lime of seizure was lawful.
17. The above decisions do not help the petitioner on the facts of this case.
18. It is significant to note the decision reported in Mohan Singh v. State, . I respectfully agree with the observations made therein, which are as follows--
'No doubt he can pass an order for the disposal of the property without an enquiry if the person entitled to the possession of it can be ascertained on a consideration of the materials appearing from the police record. The fact that the property was recovered from the possession of a particular person during investigation may be very relevant and a weighty consideration in determining the question as to who should be considered entitled to possession, but it cannot always and necessarily be conclusive. The 'person entitled to possession' in the section should not be equated with the expression 'the person from whose possession the property was taken'. Therefore even when it is ascertainable that the property was recovered from the possession of a certain person, the jurisdiction of the Magistrate to direct an enquiry to ascertain the person entitled to possession thereof cannot be barred.'
19. It is clear from the findings of the Commissioner of Police that the possession of Sultan Ibrahim on behalf of the revision petitioner at the time of seizure was not lawful though the offence under which the property was seized was not made out. The petitioner has made prevaricating versions in respect of his possession. At one stage, he stated that the second respondent pledged the conch with him and at another stage, he stated that he sold it to him. The Commissioner of Police also rightly found that the conch was taken away by the petitioner unlawfully from the second respondent and handed it over to Sultan Ibrahim. In those circumstances, it cannot be said that the possession of conch by Sultan Ibrahim on behalf of the petitioner was lawful. On the other hand, it appears to be unlawful.
20. In the result I find that the order of the Commissioner of Police and Presidency Magistrate, Madras City is right and it is confirmed. 21. The revision petition is dismissed. Petition dismissed.