130-NLR-NLR-V-60-PUNCHINONA-Petitoner-and-HINNIAPPUHAMY-Respondent.pdf
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Punchinona v. Hinniappukamy
1959Present: H. N. G. Fernando, J.PUNCHINONA, Petitioner, and HINNIAPPUHAMY, RespondentS. C. 437—Application in Revision in M. C. Galle 6,897
Criminal Procedure Code—Sections 413 and 419—Seizure by police of property sus-pected to have been stolen—Ho tv Magistrate should deal with such properly.
Where the seizure bj a police officer of property alleged or suspected to havebeen stolen is reported to a Magistrate under section 4] 9 of the Criminal Pro-cedure Code, the Magistrate, if he does not consider “ official ” custody to bonecessary, has no alternative but to order the property to be delivered backto the person from whose possession it was seized. The Magistrate has no powerto order the property to be given to any other person on the ground that thelatter is tie true owner.
H. N. G. FERNANDO, J.—Punchinona v. Hinniappuhamy
519
Application to revise an order of the Magistrate’s Court, Galle.
G. Weeramantry, with E. B. Vannitamby and H. Ismail, for thepetitioner.
Collin Mendis, for the respondent.January 23, 1959. H. N. G. Febnando, J.—
Cur. adv. vult.
This is an application in revision against an order made by the learnedAdditional Magistrate of Galle in the following circumstances. On 10thOctober 1958, a car No. EN 2284 was produced by the Police before theMagistrate together with a report stating (1) that one Hinniappuhamyhad made a complaint that while he was driving the car on 26th Septem-ber 1958, some unknown person had forcibly taken possession of the car,and (2) that the car had subsequently been produced at the MoratuwaPolice Station by the present petitioner who claimed to be the ownerof the car having bought it from one Edward. In accordance with anapplication made in that behalf by the Inspector of Police, the Magistrateimmediately ordered the car to be returned to Hinniappuhamy.
The only provision of law to which this order is referable is Section 419of the Criminal Procedure Code. That section applies to propertywhich is seized by a Police Officer (a) under Section 29 of the Code, or ‘(6) when the property is alleged or suspected to have been stolen, or (c)when the property is found under circumstances which created suspicionof the commission of an offence. It is clear in this case that the car hasnot been seized either under Section 29 or found under circumstancesreferred to at (c) above.' Although there is no evidence on the point,
I will assume that the car was in fact seized after the petitioner producedit at the Moratuwa Police station and that the ground of the seizure wasthat it was alleged or suspected to have been stolen. Nevertheless, theMagistrate had no power to order possession of the car to be given toHinniappuhamy. “ When the property seized has been removed fromthe possession of a person, the Court has a larger discretion under Section413 as to the order it can make than it has under Section 419. Underthe latter section, it hoo either to return the property to the same person, orrefuse to do so if it thinks it necessary to detain the property for the purposesof proceedings befor< it … .It has no power under the section to
order property seized and removed from the possession of one person tobe given to another person, because the possession of property cannotbe lightly interfered with ”. (Costa v. Peries1)
It is important to realize that Section 419 is not a provision whichconfers jurisdiction to decide disputed claims to possession. Its objectis to provide for the Magistrate being brought with the least possible delayinto official touch with the property seized by the Police (Binduwa v.Tyrrell*). If the Magistrate does not consider “official ” custody to benecessary, he has no alternative but to order delivery back to the personfrom whose possession the property was seized.
1 (1933) 13 G. L. Sec. 73.
2 4 0. A. G. 1.
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Royal Insurance Co., Ltd. v. Navaratnam
There would be more grounds than one which would justify an orderunder Section 419 “ respecting the custody and production of property”.One ground would be that neutral custody is expedient in order to ensurethat property, the production in evidence of which is considered necessaryin criminal proceedings, will be duly produced when required. Anotherground would be that the Court is prim,a facie satisfied that, if the propertyis kept in custody pending an inquiry or trial, the claimant will be entitled• at its conclusion to an order for delivery under Section 413. In thepresent case, however, there is nothing on the record to show that anycriminal proceedings with respect to the alleged theft of the motor carhad been instituted at the time when the car was produced before theMagistrate, nor was Counsel aware whether any such proceedings hadbeen instituted prior to the hearing of this application. In the circum-stances there was no material upon which an order for custody andproduction could have been duly made.
I set aside the Magistrate’s order in so far as it authorises the continuedpossession of the car. In pursuance of that part of the order which re-quires the car to be produced upon notice from the Magistrate’s Court,the Magistrate will now require production of the car. He will thenconsider whether “ official ” custody is necessary, and will in doingso have regard to the question whether any proceedings in respect of anyalleged theft of the motor car have been instituted up to date againstthe petitioner or any other person. Failing an order for official ”custody, he will direct delivery of the car to the petitioner.
Order set aside.