Mohammad Tajul Islam
The disposal of seized articles seems to have been used for commission of offence or anyway appears before the court at the time of trial or inquiries as well as the maintenance of malkhana & custody of the same have become, no doubt, an indispensable duty of the court for smooth functioning the criminal administration of justice. However, Sections 516A/517/518/519/520/521/522/ 523/524/ 525 of the Cr.P.C. and rules 205 to 214 of the Criminal Rules and Orders -2009 furthermore rules 525 to 529 of the Police Regulations of bengal-1943 deal with powers & functions of the court in the matter of disposal of seized property and the maintenance of malkhana.
How to disposed of the seized- property :-After conclusion of full trial or during pending of trial or inquiry, the seized property which have been used for commission of offence or anyway appears before the court, it can be disposed of in any of the 05 ( five ) ways as follows :-
Firstly ( During pending of trial or inquiry ):- Section 516A of the Cr.P.C :- Order for custody and disposal of property in pending trial :- “When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence , is produced before any criminal court during any inquiry or trial , the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the trial or inquiry , and if the property is subject to speedy or natural decay ,may after recording such evidence as it thinks necessary ,order it to be sold ,or otherwise disposed of .” Before passing any order under section 516A of the Cr.P.C., the presiding court should follow the instruction as provides in the rule-205 of the Criminal Rules and Orders -2009 . Rule-205:- When the court makes an order u/s 516A of the Code for custody of any property during any inquiry or trial, it may order that the person in whose custody the property is ordered to be kept should execute a bond, with or without sureties, to the satisfaction of the court, to place the property at the disposal of the court, whenever so asked.
Secondly (After conclusion of trial or discharge ):- Section 517 of the Cr.P.C :- Order for disposal of property regarding which offence committed :- (1) 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 by destruction , confiscation ; or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed ,or which have been used for the commission of any offence .
(2) When High Court Division or a court of session makes such order and cannot through its own officers conveniently deliver the property to the person entitled thereto , such court may direct that the order be carried into effect by the Chief Judicial Magistrate or Chief Metropolitan magistrate or district Magistrate .
(3) When an order is made under this section such order shall not, except where the property is livestock or subject to speedy and natural decay ,and save as provided by sub section( 4) be carried out for one month or when an appeal is presented, until such appeal has been disposed of.
(4) Nothing in this section shall be deemed to prohibit any court from delivering any property under the provision of sub-section (1) to any person claiming to be entitled the possession thereof, on his executing a bond with or without sureties to the satisfaction of the court, engaging to restore such property to the court if the order made under this section is modified or set aside on appeal. Before passing any order under section 517 of the Cr.P.C., the presiding court should follow the instruction as provides in the rule-210 of the Criminal Rules and Orders -2009. Rule-210:- Orders for the disposal of the property in connection with a case by way of destruction or otherwise shall generally be carried out in the presence of a magistrate under intimation to the trial court / tribunal.
Thirdly (where owner of the property seized unknown 🙂 Section 523/524/525 of the Cr.P.C :- 523 (1). The seizure by any police officer of property taken under section 51or alleged or suspected to have been stolen, found under circumstances which creates 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, it 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 , issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within one month from the date of such proclamation .
Sec. 524 of Cr.P.C :- Where no claimant appears within 06 months :- If no person within such period establishes his claim to such property ,and if the person in whose possession such property was legally acquired by him, such property shall be at the disposal of the Government , and may be sold under the orders of the Chief Judicial Magistrate or Chief Metropolitan magistrate or Magistrate of the first class empowers by the Govt. in this behalf.
Sec. 525 of Cr.P.C :- power to sell perishable property:- 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 its sale would be for the benefit of the owner, or that the value of such property is less than ten taka the magistrate may at any time direct it to be sold ; and the provision of section 523/524 shall as nearly as may be practicable, apply to the nit proceeds of such sale .
Before passing any order under section 523 to 525 of the Cr.P.C. , the presiding courts have to follow the instruction as provides in the rules-211/212 of the Criminal Rules and Orders -2009.
Rule-211 :- (1) When a property is ordered to be delivered to a party , a notice shall be issued to him informing that if he does not appear on the date specified in the notice, the property will be either destroyed or sold and the sale proceeds thereof would be credited to the government . (2) If the party appears after the sale of the property, the sale proceeds may be paid to him after deducting the expenses of the sale.
Rule-212- the sale of property by way of public auction shall be conducted by an officer of the court and it shall be held and confirmed, as far as may be , in the manner prescribed for the sale of both moveable or immoveable property under the Code of civil prpcedure,1908 and the Civil rules and Orders .
Disposal of counterfeit notes/coins etc.:- Criminal court in making orders under section 517,518,523,524 of the Code for disposal of the counterfeit notes, coins etc. shall forward them together with any dice, moulds, etc. used for counterfeiting which may have been produced in the case , to the nearest Treasury Officer or officer in charge of the concerned police station with a request that they may be transmitted to the Bangladesh Bank for disposal . A copy of the judgment delivered in the case with which they are connected shall, at the same time, be forwarded to that officer . (As per rule 207 of the Criminal Rules and Orders -2009 )
Disposal of Arms and ammunitions etc.:- All arms and ammunitions of prohibited bore which are confiscated shall be sent to the nearest arsenal for disposal on notice to the Commissioner of police or Superintendent of Police ,as the case may be ,and the Deputy Commissioner concerned . (As recommended Rule- 208 of the Criminal Rules and Orders -2009).In the case of Siddique Ahmed Sawdagor VS State reported in 40 DLR Page-268 Hon’ble High court Held that- “ the police who seized any property is under legal obligation to report forthwith the same to a Magistrate who empowered under section 523 (1) to pass an order for its disposal or delivery to the person entitiled to possession thereon. The act of the investigation officer to give custody of the property on the basisi of the practice in vogue in the police department without any support of the statutory provisions of law to that effect in violation of section 523 of Cr.P.C. is without any lawful authority and is illegal.”
Maintenance of Malkhana and Custody of Property :- The provisions have been laid down in the section 525 to 529 of the police Regulations of Bengal-1943 for maintenance of malkhana and custody of property.
Section 525.Malkhana or property room:-
(a) The Magistrate shall provide a secure room in every court to serve as a malkhana in which all property sent to court and taken charge of by the court officer shall be kept .
(b) The keys of this room shall be kept by the court officer, who is answerable that no one makes away with the property or tampers with exhibits in cases. In the room shall be a strong box with a good lock for ornaments. money or documents. Every article shall be neatly lebelled to tally with the number in the register. No private property of the officers may be kept in the malkhana.
(c) Before going out on tour the court officer shall make over to the next senior officer not bellow the rank of Assistant sub – Inspector-
(1) the key of the malkhana,and
(2) all exhibits kept in the strong box that might possibly be required during his absence. He should obtain a detailed receipt for these and note the fact in the daily under- trial case report. The key of the strong box shall be made over in a sealed cover to the second Magistrate.
The exhibits which are handed over by the Court officer, together with valuables or documents that may be received in the court during his absence shall be kept in a second strong box in the malkhana. The Court officer shall, on return from tour, examine the contents of the second strong box and give a receipt in exchange, noting the fact in his daily report.
526. Malkhana register
(a) The Sub-Inspector in charge of the court malkhana shall keep a register in B.P From No.100 of all property that he is bound by any law or regulation to take into his possession.
(b)When any property is to be given back to the owners, the order for return shall be written in column 10 and the authority sanctioning it shall initial order. The receipt of the person receiving the property shall be taken in the register in column 14.
(c) To avoid harassment, small articles shall be returned to owners through officers-in-charge of police-station whenever owners express a wish that this should be done. Court officers should ascertain owners’ wishes on this point when they come to give evidence. The articles will be sent to when they come to give evidence. The articles will be sent to
Section : 526 police Regulations of Bengal:-
Police-stations through the monthly pay escorts. The officer-in-charge of the police-station concerned shall obtain the owners’ receipt in duplicate, one copy being sent to the Court officer to be filed in the Court malkhana register and the other copy being kept on record at the said police-station. In the case of heavy articles, the District Magistrate shall determine whether the property should be returned to the owners at the expense of the Provincial Government, the cost being met from the Magistrate’s contingent grant, or whether the owners should take back their property from the court. In Sessions cases, where the order of the Sessions Judge is required, the Public Prosecution shall move the Sessions judge under section 517 of the Code of Criminal Procedure, to pass orders of disposal.
(d) When property is no longer required by the courts, such portion of it as consists of cash, bullion, gold and silver ornaments, or other valuable articles of small compass, shall be deposited in the treasury, articles other than cash being kept in a separate small box in charge of the treasurer.
(e)Orders shall be taken to convert perishable unclaimed property into cash at the earliest date the law allows.
(f) A list of articles found on the person of an accused by the police shall be forwarded with the case diary or final report of the case in accordance with regulation 322. The articles shall be sent with the prisoner in charge of his escort. Court officers shall report to the Superintendent any breach of this regulation.
(g) Court officers shall also see that prisoners hold receipts granted by station officers for such articles.
(h) on 1st January each year all outstanding items in the malkhana register shall be brought forward in red ink. The Court Inspector at sadar and the Circle Inspector at the subdivision shall certify that all outstanding entries have been correctly brought forward.
(i) In the case of property which has been proclaimed under section 523 of the Code of Criminal Procedure. The date of expiry of the period of proclamation shall be entered in the remarks column of the register, so as to enable the Court officer to obtain orders regarding the disposal of the property.
(j) The court officer shall put up his malkhana register for a thorough inspection once a month by an officer of a rank not lower than that of deputy superintendent.
In fine it is to be said that to seize the Alamat and its disposal is very much important to dispose of a criminal case. All the judges, police officers and court concerned people should know the rules and regulations of seizing alamat and its preservation in Malkhana. To protect the valuable property of others and the government property it is sin qua non to be well conversant about the disposal law of Criminal Procedure Code. Otherwise the purposes of Criminal Justice system have been immensely frustrated and government loses a big amount of revenue per year for misuse of seizing precious metals like gold and others etc.
The write up is of Mohammad Tajul Islam. He is a Legal Analyst and Researcher as well as Joint District Judge of Bangladesh Judicial Service. E-mail: bdjdj1984du@gmail.com
