Rajdeep Haibatrao Surve vs The State Of Maharashtra And Ors
2022 Latest Caselaw 8453 Bom

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                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CRIMINAL APPELLATE JURISDICTION

                                           CRIMINAL WRIT PETITION NO.2475 OF 2018

                               Rajdeep Haibatrao Surve                                   Petitioner
                                     versus
                               The State of Maharashtra and others                       Respondents

                               Mr.Dinesh P. Adsule with Mr.Ayesha Momin, Advocates for petitioner.
                               Mr.A.R.Patil, APP, for State.

                                                        CORAM :       PRAKASH D. NAIK, J.

                                                        DATE     :    26th August 2022
                               PC :


                               1.     The petitioner is aggrieved by clause-(iv) of the operative part
                               of order dated 16th July 2009 passed by Judicial Magistrate, First
                               Class, Mohol in Regular Criminal Case No.63 of 2022.


                               2.     The petitioner was prosecuted for offences punishable under
                               Sections 9,51 and 52 of Wild Life Protection Act, 1972 vide RCC
                               No.63 of 2022.     Learned JMFC, Mohol vide judgment and order
                               dated 16th July 2009 acquitted the petitioner for the offences under
                               Sections 9, 51 and 52 of Wild Life Protection Act. However, it was
                               directed that muddemal article double barrel 12 bore gun with two
                               live cartridges be forwarded to District Magistrate for appropriate
                               orders regarding disposal.
         Digitally signed by
MANISH   MANISH SURESH
SURESH   THATTE
         Date: 2022.08.30
THATTE   10:35:21 +0530
                               3.     On perusal of the judgment and order dated 16 th July 2009 it
                               is apparent that prosecution could not prove the charges against
                               petitioner which has resulted in acquittal.      The Trial Court has
                               analyzed the evidence and arrived at conclusion that prosecution has
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failed to prove its case.       The offences are not proved against
petitioner.


4.    The petitioner thereafter preferred an application before the
same Court seeking custody of muddemal article i.e. double barrel
12 bore gun which was seized during investigation and subject
matter of RCC No.63 of 2000.        The police gave no objection for
handing over the article to petitioner.     Learned JMFC, Mohol by
order dated 22nd September 2014 rejected said application primarily
on the ground that no proceedings are pending before the said Court.
Thereafter petitioner preferred Criminal Miscellaneous Application
No.39 of 2017 before Sessions Court challenging the order with
regards to custody of         double barrel 12 bore gun.       The said
application was rejected by Additional Sessions Judge-5, Solapur
vide dated 7th November 2017 passed by on the ground that there is
delay in preferring the said application.


5.    Learned advocate for petitioner submitted that double barrel
12 bore gun has been lying in the custody of respondents for no
reason. The petitioner has been acquitted of all the charged. It is
not established by the prosecution that petitioner has used double
barrel 12 bore gun in violation of Wild Life Protection Act.


6.    Learned APP submitted that presently the gun is lying with
Police Head Quarters at Solapur. It is submitted that Trial Court
while acquitting the accused has directed that the gun be forwarded
to the District Magistrate.


7.    On perusal of the judgment passed by Trial Court it is apparent
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that prosecution has failed to prove the charges against petitioner. It
is not established that the petitioner was instrumental in using the
double barrel 12 bore gun in violation of Wild Life Protection Act.
The gun was seized during investigation. It is lying in custody of
police since 1999. It is also pertinent to note that police had given
no objection for handing over custody of the said gun to petitioner.


8.      Considering the aforesaid circumstances, prayers in the
petition can be granted :
                                 ORDER

(i) Writ Petition is allowed and disposed of;

(ii) The order dated 16th July 2009 passed Judicial Magistrate, First Class, Mohol in RCC No.63 of 2000 to the extent to clause-(iv) of the operative part of the judgment directing that double barrel 12 bore gun and two cartridges be handed over to the District Magistrate, is quashed and set aside;

(iii) The orders dated 22nd September 2014 passed by Judicial Magistrate, First Class Mohol in Criminal Miscellaneous Application No.37 of 2014 and order dated 7 th November 2017 passed by Additional Sessions Judge-5, Solapur in Criminal Miscellaneous Application No.39 of 2017 are quashed and set aside;

(iv) The double barrel 12 bore gun No.411116 and two live cartridges seized in CR No.3129 of 1999 registered with Mohol Police Station, Mohol, District Solapur, be returned to the petitioner.

(PRAKASH D. NAIK, J.) MST