R/At At Opp.Jatra Hotel vs State Of Maharashtra
2012 Latest Caselaw 134 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
                        CIVIL APPELLATE JURISDICTION

                       WRIT PETITION No. 8440  OF  2012




                                                 
        Shri Balu @ Dinkar Baburao Tambe
        Age 55 years, Occupation-business




                                                
        R/at At Opp.Jatra Hotel,
        Sharayu Park, Post Adgaon,
        Taluka and Dist. Nashik-422 003.               .. Petitioner.




                                       
             VERSUS
                          
        1. State of Maharashtra,
           Through Secretary,
           Transport Department,
                         
           Home Ministry,
           Mantralaya,
           Mumbai 400 032.
          


        2. Deputy Regional Transport Officer,
       



           Thane, Near Central Jail,
           District Thane 400 601.                                  .. 
           Respondents.
  




        Mr C.T.Chandratre  for the Petitioner.
        Mr Niteen Deshpande, A.G.P. for Respondents-State. 





                       CORAM : A.M. KHANWILKAR & R. Y. GANOO, JJ.

DATED :-

8th OCTOBER , 2012.

ORAL JUDGMENT(PER :A.M.KHANWILKAR,J)

1. Heard Counsel for the parties.

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2. Rule. Mr Deshpande, A.G.P. waives notice on behalf of the

Respondent-State. By consent, Rule made returnable forthwith.

3. This petition, in substance, takes exception to the Inspection

Note dated 2nd August, 2012 which is the basis for detaining Truck

No.MH-43-E-6861. The petitioner asserts that the said vehicle

belongs to him. The Authority has seized the said vehicle even

though the petitioner had produced the relevant documents. The

Authority has unjustly refused to release the vehicle in question.

4. The respondents-Authority, on the other hand, submits that

the vehicle in question has been seized as the petitioner failed to

produce driving licence of the driver. As a result, the Authority had

no other option but to detain the said vehicle in exercise of powers

under Section 207 of the Motor Vehicles Act, 1988. Further, even

after giving sufficient opportunity to the petitioner, he failed to

produce any valid driving licence.

5. It is not in dispute that the petitioner had produced

certificate of registration and permits concerning the said vehicle

before the Authority. Even if we may agree with this submission of

the petitioner, in the present case, the Authority has proceeded to

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register a criminal case against the petitioner and the vehicle has

been shown as property concerning the said offence. We are

informed that the charge-sheet has also been filed in connection

with the said criminal case before the concerned court on 3 rd

September, 2012. In that case, the remedy for the petitioner is to

approach the concerned Magistrate for return of the property

under Section 457 of the Code of Criminal Procedure. The said

court may have to consider all aspects of the matter, in accordance

with law. We may not be understood to have expressed any

opinion in that regard.

6. The Counsel for the petitioner, however, relied on the

decision of the single Judge of the Allahabad High Court in the

case of Ram Sewak Jaiswal vs. State of U.P., 1996 Cri.LJ 1012.

In that case, the Court opined that the Magistrate does not have

power to release the vehicle under the Code of Criminal

Procedure. We disagree with the said opinion. Inasmuch as, once

the matter proceeds before the regular criminal Court as a criminal

case and the vehicle is shown as property involved in the said

criminal case, it is only the Magistrate who takes cognizance of the

case, competent to issue directions regarding return of property till

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the said criminal case is finally disposed of and none else.

7. No doubt, Section 207 of the Motor Vehicles Act are special

provisions but even so, a police officer or the person authorized by

the State Government under the said enactment shall cease to

exercise powers under section 207 of the Motor Vehicles Act qua

the vehicle which is subject matter of criminal case of which

cognizance is taken by the Court, consequent to the registration of

offence and making the said vehicle as a crime property.

8. Significantly, the challenge in this writ petition is only to the

Inspection Note which is in anterior point of time to the institution

of criminal case and for the reasons already recorded, no useful

purpose would be served in examining the justness and validity of

the said Inspection Note in the present petition. The same can be

considered in the appropriate proceedings if that question arises.

9. The counsel for the petitioner, therefore, submits that the

petitioner be permitted to take recourse to remedy before the

Magistrate for return of the property.

10. Accordingly, this petition is disposed of with liberty to the

petitioner to pursue other remedy. All questions in that behalf are

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left open.

11. We hope and trust that the concerned Magistrate will dispose

of the proposed application preferred by the petitioner for return

of the property, expeditiously and preferably within six weeks from

the date of presentation thereof.

                   (R.Y.GANOO,J)ig                  (A.M.KHANWILKAR,J)
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