N.G. Chaudhuri, J.
1. The petitioner Prema Das along with others faced trial Under Section 10 of the west Bengal Gambling Act and Sec, 9 of the West Bengal Maintenance of Public Order Act in Sessions Trial No. 3 of June, 1978 before- the 5th Court of Additional Sessions Judge at Alipore. In connection with the same, some jewelleries, ornaments and other articles were seized by the police and were produced at the time of trial. When the prayer for return of the jewelleries came up for consideration at the conclusion of the trial, the learned Sessions Judge, instead of himself making an order under Sub-section (1) of Section 452 Cr. P. C, ordered in exercise of his power under Sub-section (3) by order dated 14-1-79 delivery of the seized properties to Chief Judicial Magistrate, 24-Parganas at Alipore, The learned C. J. M. by his order dated 4-8-1979 ordered confiscation of the seized articles to the State. Aggrieved with the said order Prema Das has come up in revision and on his behalf the propriety and legality of the order are challenged seriously.
2. From a perusal of the order it appears that the learned C. J. M. found that the petitioner in his petitions did not claim ownership of the articles in question. He was doubtful if the petitioner was owner of the properties or his deceased uncle was the owner of those properties. There is again some doubt if the properties were seized from the possession of the petitioner. Apart from that the learned C. J. M. found that Sees. 457, 458 and 459 of the Cr. P. C. referred to in Section 452(3) under which question of return was being considered had no application to the facts and circumstances of the case. After ordering confiscation of the seized articles the learned C. J. M. further ordered that records together with copy of the order passed by him be forwarded to the learned Additional Sessions Judge, 5th Court for information and necessary action.
3. Mr. C. R. Das the learned advocate for the petitioner contends that on the materials on record the learned C. J. M. should have found that the articles in question were seized from the possession of the petitioner and should have ordered delivery of the properties to the petitioner. Without going into the merits of Mr. Das's contention in this behalf we find that both the C. J. M, and the learned Additional Sessions Judge suffered from some confusion. If the seized articles were actually delivered to C. J. M. perhaps he would not have ordered 'let the records together with a copy of this order be forwarded to the learned Additional Sessions Judge, 5th Court for information and necessary action.' The learned Additional Sessions - Judge ordered 'I consider that the articles in question be delivered to the learned C. J. M. 24-Parganas at -Alipore who will thereupon deal with the matter for the purpose of disposal of the properties in terms of Section 452(3) of the Criminal Procedure Code, The parties concerned do appear before the learned C. J. M. 24-Parganas, Alipore on 5-2-79.' The order as quoted above does not apparently fit in with the scheme of Section 452(3) of the Cr. P. C. It would have been sufficient for the Additional Sessions Judge to direct only delivery of the property to C. J. M. It was for the C. J. M, to give notice to interested parties and fix date of hearing. Section 452 contemplates order for disposal of property at the conclusion of an enquiry or trial in any Criminal Court. According to Sub-section (1) the Criminal Court wherein the enquiry or trial touching the property in question was concluded is competent to pass order for disposal of the property. Sub-section (3) however, enables such a court to direct the property to be delivered to the Chief Judicial Magistrate for making necessary orders for disposal or delivery of the property. After receiving delivery of the properties the C. J. M. shall deal with the property 'in the manner provided in Sections 457, 458 and 459'. The text and terms of Sub-section (3) do not require that the C. J, M. will exercise his power regarding disposal and delivery of the property in the circumstances stated in Sections 457, 458 and 459, only the manner 'or procedure of exercise of the power will be as provided therein.
4. After the C. J. M. has received delivery of the property or if the court holding the trial proceeds to exercise powers Under Section 452(2) itself, a decision will have to be taken first whether the property will be disposed of or its delivery should be given to any person. If for cogent reasons the court considers disposal of the property to be expedient that may be done either by destruction or by confiscation, depending on the nature of property, social safety etc. If disposal of property is not considered expedient, question of its delivery to proper person should engage the attention of the Court of C. J. M. If such a person is known and is ascertained, Section 457(2) contemplates an order for delivery of the property to him. If on the other hand such a person cannot be ascertained the court is to detain the property and to issue a proclamation specifying the articles of which such property consists requiring any person who may have a claim thereto to appear before him and establish his claim before six months from the date of such proclamation. If no person makes a claim to the property within the period noted above the Court of C. J. M. may direct that the property shall be at the disposal of the State Government and may be sold by the Government and the proceeds of the sale shall be dealt with in such manner as may be prescribed in accordance with Section 458 Section 459 contemplates disposal of the sale proceeds of perishable articles in terms of Sections 457 and 458 that is to say the claimants will have to establish his rights to the property before claiming the sale proceeds. From the scheme of the Sections as aforesaid it will be clear that confiscation of the property is not ordinary rule rather delivery of the same to proper person is desirable. The C. J. M. does not appear to have proceeded in the above fashion. The order of the C. J. M. is, therefore set aside, and the Civil (Criminal) Application is accordingly allowed on contest. The records be sent down to the Court of C. J. M., Alipore, with direction to proceed as indicated above.
N.C. Mukherji, J.
5. I agree