GOPAL KUMAR SAH vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.12685 of 2022
Arising Out of PS. Case No.-175 Year-2018 Thana- Kharagpur District- Munger
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GOPAL KUMAR SAH Son of Late Mahendra Narayan Sah Resident of Khas
Bazar, P.S.- Kharagpur, Mistrict- Munger.
... ... Petitioner/s
Versus
The State of Bihar Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr.Sanjeev Ranjan, Advocate
For the Opposite Party/s : Mr.Sanjay Kumar Tiwary, APP
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CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
Date : 17-06-2026
Heard learned counsel for the petitioner as well as
learned APP for the State.
2. This petition is directed against two orders. The order
dated 10.03.2021 passed by the learned IV Additional Chief
Judicial Magistrate, Munger, in G.R. Case No. 1517/2018 arising
out of Kharagpur P.S. Case No. 175/2018, and the order dated
28.10.2021 passed by the learned Sessions Judge, Munger, in
Criminal Revision No. 26/2021, affirming the former. Both orders
reject the application filed by the petitioner under Section 451 of
the Code of Criminal Procedure for release of currency seized
from his house on 03.06.2018.
3. The facts are these. On the morning of 03.06.2018,
Sub-Inspector Brajesh Kumar Singh, the Station House Officer of
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Kharagpur Police Station, set out for patrolling, and at about 1.30
PM, at Ambedkar Chowk, he received secret information that the
petitioner was running an illegal lottery business from his house at
Khas Bazar, Kharagpur. He proceeded to the house, surrounded it,
and apprehended three persons who attempted to flee, namely the
petitioner, his son Saurav Kumar, and one Shyam Kumar, a staff
member. A search followed between 2.00 PM and 6.15 PM. From
the house Nagaland State Lottery tickets in large bundles,
equipment connected with the manufacture of lottery tickets, a
computer and printer, mobile phones, a note counting machine,
various documents, cheque books and identity documents were
recovered. Two bags containing currency were also found, a black
bag with Rs. 48,23,500 in valid notes and a white bag with Rs.
2,30,000 in mutilated notes. A seizure list was prepared. The
petitioner and his son signed it. Kharagpur P.S. Case No. 175/2018
was registered under Sections 419, 420, 467, 468 and 120(B) IPC
and Section 7 of the Lotteries (Regulation) Act, 1998. Charge
sheet has since been filed.
4. Something about the search deserves immediate
notice. The SHO's own self-statement records that no independent
local resident was willing to witness the search. The house is in a
thickly populated locality. Yet not one independent inhabitant was
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associated. Two sub-inspectors of the raiding party itself were
made witnesses to the seizure. Section 100(4) CrPC is
unambiguous. The officer conducting the search must obtain the
assistance of two or more independent and respectable inhabitants
of the locality. The provision is a safeguard, not a suggestion. Its
violation goes to the root of the search proceedings. Neither court
below even noticed this.
5. There is another feature of the FIR worth recording.
The self-statement of the SHO mentions Section 20 of the
Lotteries (Regulation) Act, 1998 as one of the applicable
provisions. The Act has twelve sections. Section 20 does not exist.
The case is registered under Section 7. The primary document of
the prosecution contains a provision that has no existence in the
statute. The courts below proceeded without comment on this.
6. The petitioner first moved for release of the entire
seized amount on 15.04.2019, claiming as Karta of the joint Hindu
family. The State objected that a representative claim of that nature
was not maintainable. The court below was inclined to agree. The
petition was withdrawn on 17.02.2021. A fresh application was
filed on 20.02.2021, this time restricted to Rs. 19,50,000 being the
petitioner's individual share, along with the Rs. 2,30,000 in
mutilated notes. Income tax returns for Assessment Years 2018-19
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and 2019-20, with balance sheets for 31.03.2018 and 31.03.2019,
were placed on record. All were acknowledged by the Income Tax
Department.
7. The learned IV ACJM rejected the application on
10.03.2021. The ground was that the recovery of such a large
amount casts doubt on the income tax returns, that the income
shown is not proportionate to the seized amount, and that there is
no mention of any business. The learned Sessions Judge dismissed
the revision on 28.10.2021, holding that the petitioner had failed to
show the source of the seized amount and that the returns and
balance sheets are not proportionate to it.
8. These findings are not merely erroneous. They are
contrary to the documents that were before both courts.
9. The balance sheet for the year ended 31.03.2019
specifically shows under the head of assets: "Cash Seized by
Police Officer, Haveli Kharagpur Thana, (Munger) Dated 03-06-
2018 Case No. 175/18, Rs. 19,50,000." The petitioner disclosed
the seized amount in his books of account for the very year in
which it was seized. He showed it as an asset in police custody. He
placed these accounts before the Income Tax Department, which
acknowledged them. The learned Sessions Judge said the
petitioner miserably failed to show the source of income. The
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records show otherwise. The seized amount of Rs. 19,50,000 is
reflected in the petitioner's balance sheet for the year in question,
acknowledged by an independent statutory authority.
10. The learned ACJM found no mention of any
business. The trading account for the year ended 31.03.2018 shows
purchases of Rs. 44,22,780 and sales of Rs. 49,31,402. For 2018-
19, purchases are Rs. 44,57,510 and sales Rs. 50,43,632. This is a
wholesale business of spice and dry fruit turning over
approximately Rs. 50 lakhs annually. It is on the face of the
documents. The finding that no business exists is impossible to
sustain.
11. There is one more fact that the courts below chose
not to engage with. The Kharagpur Police filed a report before the
court stating that it had no objection to the release of the amount to
the petitioner. The very agency that made the seizure did not
oppose release. That fact was simply passed over.
12. The currency has been in the Malkhana since
03.06.2018. Over eight years have passed. The panchanama has
been prepared. The denomination-wise breakup has been recorded
in the seizure list. Photographs have been taken. The charge sheet
has been filed. There is nothing that the continued retention of
these notes in the Malkhana serves. The risk of deterioration,
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demonetization of particular denominations, and theft from the
Malkhana is real and present. It grows with every passing year.
13. Section 451 CrPC is not a provision for deciding
title. It is not a provision for examining whether an accused has
satisfactorily explained his wealth. That is the work of the trial.
The sole question under Section 451 is whether the property can
be released on appropriate terms so as to prevent its loss or
deterioration, while securing its availability for the purposes of the
trial. The moment a legitimate claimant steps forward and offers
sufficient security, the provision contemplates release. It does not
contemplate a pre-trial verdict on the question of whether the
money is tainted.
14. What the courts below have done is precisely that.
They have examined the income tax returns, found them
insufficient to account for the entire seized amount of Rs.
48,23,500, and refused release on that basis. The application was
for Rs. 19,50,000, not Rs. 48,23,500. And that Rs. 19,50,000 is
reflected in the petitioner's balance sheet in the custody of the
police. The approach of the courts below assumes guilt. It denies
the petitioner the benefit of the presumption of innocence at a pre-
trial stage. It converts a custody application into a confiscation
order. That cannot be the law.
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15. The impugned orders are set aside. The application
of the petitioner under Section 451 Cr.P.C dated 20.02.2021 in
G.R. Case No. 1517/2018 is allowed on the following conditions.
I. The petitioner shall furnish a personal bond
in the sum of Rs. 19,50,000 with one surety of the like
amount to the satisfaction of the learned IV Additional
Chief Judicial Magistrate, Munger, undertaking to
produce the said amount or its equivalent before the trial
court as and when required.
II. Before release, the currency shall be re-
photographed denomination-wise in the presence of both
parties and the photographs shall form part of the record
of G.R. Case No. 1517/2018.
III. The petitioner shall file a written
undertaking before the trial court within two weeks of
release that he shall not alienate or encumber the released
amount.
IV. The mutilated notes of Rs. 2,30,000 shall
also be released on the same terms after being
photographed. The petitioner may present them to the
Reserve Bank of India or a scheduled bank for exchange
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under applicable guidelines and shall report the outcome
to the trial court within four weeks of release.
16. The learned IV Additional Chief Judicial
Magistrate, Munger, shall give effect to these directions within
four weeks of production of a certified copy of this order.
17. The petition is allowed. The interim stay stands
vacated.
(Ansul, J)
amitkr/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 25.06.2026
Transmission Date 25.06.2026