Bombay High Court
Ritesh S/O Prakash Mohurle vs State Of Mah. Thr. Pso Aashti ... on 14 December, 2022
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.691 OF 2022
Ritesh S/o Prakash Mohurle,
Aged about 28 years, Occ: Service,
R/o Maharana Pratap Ward, Ballarpur, Tah.
Ballarpur, Dist. Chandrapur
... PETITIONER
---VERSUS---
State of Maharashtra,
through its Police Station Officer, Aashti,
Tah. Chamorshi, Dist. Gadchiroli.
...RESPONDENT
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Shri A.R. Wagh, Advocate for petitioner.
Shri A.R. Chutke, APP for respondent.
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CORAM : G.A. SANAP, J.
DATED : DECEMBER 14, 2022.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard finally at
the admission stage with the consent of learned advocates for the
parties.
2. The application made by the petitioner under Section
457 of the Code of Criminal Procedure for release of his vehicle
bearing registration No.MH-34/BF-2123 seized in Crime No.363
of 2021 registered at Police Station, Aashti for offences punishable
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under Sections 272, 273, 188 of the Indian Penal Code and under
Sections 26(2)(iv), 36(2)(a), 3(1) and 23(iii) of the Food Safety and
Standards Act, 2006 and under Sections 2, 3 and 4 of the FSS Act
(Amended), 2021 came to be rejected by the learned Judicial
Magistrate First Class, Chamorsi, District Gadchiroli.
3. It is the case of the petitioner that his friend had taken his
vehicle for his personal use. The vehicle was seized by the police in
the crime bearing No.363 of 2021 for the above offences. The
petitioner applied before the learned Magistrate for the release of
the vehicle. The police granted no objection to release the vehicle.
However, the learned APP at the stage of hearing the application
opposed the application by taking a stand contrary to the one taken
by the police. The learned Magistrate rejected the application
mainly on the ground that the vehicle was seized by the Food
Officer, Toram, who is the complainant in the above crime. The
learned Magistrate further observed that since the vehicle was seized
by the Food Officer, Toram, he would have no jurisdiction under
Section 457 of the Code of Criminal Procedure (Cr.P.C.) to release
the vehicle.
4. The petitioner has raised several grounds in the petition.
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The main contention is that the Police seized the vehicle by drawing
seizure panchanama. It is submitted that learned Magistrate has not
taken this fact into consideration and came to the wrong conclusion.
5. I have heard the learned advocate for the petitioner and
learned Additional Public Prosecutor for the respondent/State.
Perused the record and proceedings.
6. The learned Additional Public Prosecutor in all fairness
on the basis of the case diary submitted that vehicle was seized by
the Police Officer investigating the crime by drawing panchanama.
He further conceded that the vehicle has been in custody of the
police and at present kept at Ashti Police Station.
7. It is seen on perusal of the case diary that the vehicle was
not seized by the Food Officer, Targaon as wrongly observed by the
learned Magistrate. It is further pertinent to note that the applicant,
who is the vehicle owner, is not an accused in the said crime. The
learned Magistrate therefore was required to decide the application
by invoking jurisdiction under Section 457 of the Cr.P.C.
8. The learned advocate for the petitioner submitted that the
Hon'ble Supreme Court of India in the case of Sunderbhai Ambalal
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Desai Vs. State of Gujarat reported in (2002) 10 SCC 283 has laid
certain guidelines in the matter of release of the property seized in
the crime during the investigation of the crime by the police. In this
case, the Hon'ble Supreme Court has framed four broad guidelines.
The same are as follows:
"1. owner of the article would not suffer because of its remaining
unused or by its misappropriation;
2. court or the police would not be required to keep the article in
safe custody;
3. if the proper panchnama before handing over possession of
the article is prepared, that can be used in evidence instead of its
production before the court during the trial. If necessary,
evidence could also be recorded describing the nature of the
property in detail; and
4. this jurisdiction of the court to record evidence should be
exercised promptly so that there may not be further chance of
tampering with the articles."
9. In my view, guidelines (1) and (2) would be applicable to
the case of the petitioner. It is pertinent to mention that if the
vehicle is not released then the petitioner would suffer financial loss.
The vehicle would practically become useless if the same is kept in
the police station till the termination of the trial. It is further
pertinent to note that the rejection of the application would further
fasten the liability on the police to keep the vehicle in safe custody.
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In my view, therefore, the reasons recorded by the learned
Magistrate are not according to the law. The application made by
the petitioner deserves to be allowed subject to appropriate
conditions. Accordingly, I pass the following order:
ORDER
i. The order passed below Exhibit-1 in Criminal
Miscellaneous Application No.10 of 2022 by the learned
Judicial Magistrate First Class, Chamorshi, District Gadchiroli
dated 19.04.2022 is set aside.
ii. The application made by the petitioner at Exhibit-1 in
Criminal Miscellaneous Application No.10 of 2022 is allowed.
iii. The Incharge of the Ashti Police Station is directed to
handover the custody of the vehicle to the petitioner on his
executing solvent surety for ₹4 lakhs as well as his own
undertaking to return the vehicle or cost of the vehicle as and
when directed by the Court.
iv. The Investigating Officer shall prepare the detailed
panchanama of the vehicle at the time of handing over custody
of the same to the petitioner.
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v. The Investigating Officer shall take the photographs of the
vehicle from all angles and produce the same with the charge-
sheet in the trial Court.
Rule made absolute in above terms.
JUDGE
Wagh
