Karnataka High Court issues guidelines on storing, releasing seized properties, digital devices

The Karnataka High court recently issued guidelines for investigating agencies and trial courts to follow while storing and releasing seized properties and digital devices. .In an order passed on October 4, single-judge Justice V Srishananda said that in a large number of matters, investigating agencies often fail to safely preserve items seized during a probe, and courts often pass mechanical orders on whether to release such seized objects to their rightful owners.Therefore, a set of model guidelines would be necessary for the “Trial Magistrate while dealing with release of the seized properties either under Section 451 and 457 of Code of Criminal Procedure (CrPC) or under Section 497 of Bharatiya Nagarik Suraksha Sanhita (BNSS),” the High Court said..The Court issued a set of 18 pointers or guidelines for the same. These include a direction to the investigating agencies to maintain impeccable records of all seized material, to list them out with detailed description in a serialised manner in the records register and to provide the estimated monetary value of all such items.It said that in case cash is seized by the probe agencies, photographs or videograph of currency notes must be taken and serial numbers of the seized currency notes shall be written in “mazhar” or record book.“Immediate steps are to be taken to deposit the currency notes to Reserve Bank of India and value of the currency notes thereof shall be ordered to be returned to the successful party at the end of the trial,” the Court said..The Court further directed that trial courts must compare each seized item with the description given in such register. It also said that unless specific grounds are established by the investigating agencies, trial courts must not allow such properties to be retained by the probe authorities.“Unless a specific grounds/reasons are made out by the Investigating Agency, seized property shall not be allowed to be retained by the Investigating Agency. (6) Even if the request for retention is allowed, the learned Trial Magistrate instead of passing a mechanical order by initialing on the readymade seal with words ‘permitted to retain’, pass a suitable speaking order in the order sheet of the case, directing the Investigating Agency that they would be retaining the property as a ‘Bailee’ and ensure that proper care is taken to preserve the seized property,” the High Court said..The Court passed the directions while hearing a petition filed by a city resident challenging a lower court’s order rejecting her request to direct the police to return some mobile phones and gadgets that were stolen from her shop and subsequently recovered by the police.The High Court noted that the trial court had failed to take note of the fact that the petitioner had provided requisite documents to prove her ownership. It further noted that due to lack of necessary infrastructure and uniform guidelines on storing such seized items, their value, especially in case of electronic items, motor vehicles etc. diminishes drastically..GuidelinesThe following guidelines were issued by the Court:.(1) Description of the seized property shall be incorporated in the seizure mahazar so as to distinctly identify the seized property at all stages in the criminal trial. (2) Mahazar shall include, serial numbers, make of the seized property, manufacturers name, if any, distinctive marks, if any, hall mark, if any, on the gold and silver articles with distinct numbers. (3) Mahazar shall include, approximate value of the seized property (estimation of valuation to be obtained from the registered valuers wherever necessary). It shall accompany the PF Memo when it is placed before the trial magistrate.(4) Trial magistrate shall verify the contents of mahazar with aforesaid details and personally examine the seized properties and satisfy that the seized properties are tallying with the description made in the mahazar and PF Memo. (5) Unless a specific grounds/reasons are made out by the Investigating Agency, seized property shall not be allowed to be retained by the investigating agency. (6) Even if the request for retention is allowed, the trial magistrate instead of passing a mechanical order by initialing on the readymade seal with words ‘permitted to retain’, pass a suitable speaking order in the order sheet of the case, directing the investigating agency that they would be retaining the property as a ‘Bailee’ and ensure that proper care is taken to preserve the seized property.(7) Trial magistrate shall ensure that proper infrastructure is available with the police for preservation of the seized material objects and must report to the court as to its status when the charge sheet is filed. (8) If the seized property is sent to the forensic science laboratory, the investigating agency shall ensure that the property is sent in a proper sealed condition and seals are intact, at all levels. (9) Whenever the property is ordered to be retained by the investigating agency, and if an application seeking release is rejected, after the investigation, and if the need of retaining property is not imperative, the Court may pass suitable orders with regard to the interim disposal of the property.(10) Trial magistrates/ sessions judges are hereby directed to ensure the disposal of the property in respect of narcotic drugs and psychotropic substances as per the directions of the Supreme Court in the case of Union of India vs. Mohanlal and another.(11) In case of seizure of the vehicles, the standard operating procedure and the amendment to the Rule 232G of Karnataka Motor Vehicles (Amendment) Rules, 2018 shall be borne in mind by the trial magistrate while disposing the application filed under Section 451 and 457 CrPC or under Section 497 of BNSS. (12) In respect of the electronic and digital material objects, the trial magistrate shall ensure that the same to be retained by the police under retention order to ensure that the same are not exposed to the atmospheric moisture, resulting in damage to the seized electronic equipment or data stored therein.(13) Necessary directions in this regard shall be made in the order while PF Memo is filed into the Court seeking retention of the seized electronic items, compact disc, pendrives and such other storage media when produced and ordered to be retained shall be properly preserved by taking necessary precautions so as to avoid the damage to the data stored therein which may have a direct bearing on the merits of the trial. (14) Precious items like Gold, Silver shall not be ordinarily to be retained with the investigating agency unless the same is required for investigation purpose like identity, finger print examination etc., and wherever it is necessary, photographs/ videographs of the seized material objects can ordered to be returned to the applicant after deciding the rival claim, if any.(15) In respect of the explosives, inflammable substances, like adulterated petroleum products, gas cylinders etc, the trial magistrate shall ensure the safety of the seized material objects, not only the safety of seized material objects and possible accident in the place where it is stored and pass suitable orders. (16) In respect of perishable items, the trial magistrate without loss of time, shall consider the application and pass suitable orders like auctioning the perishable items and directing the auction money to be kept in ‘escrow account’ subject to the final result of the criminal proceedings. (17) In respect of the seized material objects under the special enactments like Essential Commodities Act etc., trial magistrate shall strictly adhere to the rules and regulations under the special enactment and pass appropriate orders as early as possible. (18) In respect of seized cash, photograph/ videograph of the currency notes to be taken and serial numbers of the seized currency notes shall be written in a mahazar. Immediate steps are to be taken to deposit the currency notes to Reserve Bank of India and value of the currency notes shall be ordered to be returned to the successful party at the end of the trial..Advocates Pruthveen P Kattimani and Giridhar H appeared for the petitioner.Special Public Prosecutor BA Belliyappa and High Court Government Pleader Vinay Mahadevaiah appeared for the State..[Read Order]