518 Punchinona v.
Hinniappukamy
1959 Present: H. N. G. Fernando, J.
PUNCHINONA, Petitioner, and H IN N IA PPU H A M Y , R espondent
S. C. 437—Application in Revision in M . C. Galle 6,897
Crim inal Procedure Code— Sections 413 and 419— Seizure by p olice o f p rop erty su s
p ected to have been stolen — Ho tv M agistrate should deal with such p rop erly .
W here the seizure b j a police officer o f property alleged or suspected to have
been stolen is reported to a Magistrate under section 4] 9 o f the Criminal Pro
cedure Code, the Magistrate, i f he does n o t consider “ official ” cu stod y to bo
necessary, has n o alternative b u t t o order th e p rop erty t o b e delivered back
to th e person from whose possession it w as seized. T h e M agistrate has n o power
t o order th e property to b e given t o a n y other person o n th e grou nd that the
latter is t i e true owner.
H . N . G . F E R N A N D O , J .—Punchinona v. Hinniappuhamy 519
A p p l ic a t io n to revise an order o f the Magistrate’s Court, Galle.
C. G. Weeramantry, with E. B. Vannitamby and H . Ismail, for the
petitioner.
Collin Mendis, for the respondent.
Cur. adv. vult.
January 23, 1959. H . N. G. F e b n a n d o , J.—
This is an application in revision against an order made by the learned
A dditional M agistrate o f Galle in the following circumstances. On 10th
O ctober 1958, a car N o. EN 2284 was produced by the Police before the
M agistrate together with a report stating (1) that one Hinniappuhamy
had m ade a com plaint that while he was driving the car on 26th Septem
ber 1958, some unknown person had forcibly taken possession o f the car,
and (2) that the car had subsequently been produced at the Moratuwa
Police Station b y the present petitioner who claimed to be the owner
o f the car having bought it from one Edward. In accordance with an
application made in that behalf b y the Inspector o f Police, the Magistrate
im m ediately ordered the car to be returned to Hinniappuhamy.
The only provision o f law to which this order is referable is Section 419
o f the Criminal Procedure Code. That section applies to property
which is seized b y a Police Officer (a) under Section 29 o f 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 suspicion
o f the commission o f an offence. It is clear in this case that the car has
n ot been seized either under Section 29 or found under circumstances
referred to at (c) a b ov e.' Although there is no evidence on the point,
I w ill assume that the car was in fact seized after the petitioner produced
it at the Moratuwa Police station and that the ground o f the seizure was
that it was alleged or suspected to have been stolen. Nevertheless, the
Magistrate had no power to order possession o f the car to be given to
Hinniappuham y. “ W hen the property seized has been removed from
the possession o f a person, the Court has a larger discretion under Section
413 as to the order it can make than it has under Section 419. Under
the latter section, it hoo either to return the property to the same person, or
refuse to do so if it thinks it necessary to detain the property for the purposes
o f proceedings befor< it . . . . I t has no power under the section to
order property seized and removed from the possession o f one person to
be given to another person, because the possession o f property cannot
be ligh tly interfered with ” . (Costa v. Peries1)
It is im portant to realize that Section 419 is not a provision which
confers jurisdiction to decide disputed claims to possession. Its ob ject
is to provide for the Magistrate being brought with the least possible delay
into official touch with the property seized b y the Police (Binduwa v.
Tyrrell*). I f the Magistrate does not consider “ official ” custody to be
necessary, he has no alternative but to order delivery back to the person
from whose possession the property was seized.
1 (1933) 13 G. L . Sec. 73. 2 4 0. A. G. 1.
520 Royal Insurance Co., Ltd. v. Navaratnam
There would be m ore grounds than one which w ould ju stify an order
under Section 419 “ respecting the custody and production o f property” .
One ground w ould be that neutral custody is expedient in order to ensure
that property, the production in evidence o f which is considered necessary
in criminal proceedings, w ill be duly produced when required. Another
ground would be that the Court is prim,a facie satisfied that, if the property
is kept in custody pending an inquiry or trial, the claim ant w ill be entitled
• at its conclusion to an order for delivery under Section 413. In the
present case, however, there is nothing on the record to show that any
criminal proceedings with respect to the alleged th eft o f the m otor car
had been instituted at the tim e when the car was produced before the
Magistrate, nor was Counsel aware whether any such proceedings had
been instituted prior to the hearing o f this application. In the circum
stances there was no material upon which an order for custody and
production could have been duly made.
I set aside the M agistrate’s order in so far as it authorises the continued
possession o f the car. In pursuance o f that part o f the order which re
quires the car to be produced upon notice from the M agistrate’s Court,
the Magistrate w ill now require production o f the car. H e w ill then
consider whether “ official ” custody is necessary, and w ill in doing
so have regard to the question whether any proceedings in respect o f any
alleged theft o f the m otor car have been instituted up to date against
the petitioner or any other person. Failing an order for official ”
custody, he w ill direct delivery o f the car to the petitioner.
Order set aside.
