Harendrakumar Ratibhai Thakar ... vs State Of Gujarat
2021 Latest Caselaw 10404 Guj

     R/SCR.A/5545/2021                         ORDER DATED: 03/08/2021



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO.            5545 of 2021
                          With
     R/SPECIAL CRIMINAL APPLICATION NO.            5553 of 2021
                          With
     R/SPECIAL CRIMINAL APPLICATION NO.            5558 of 2021
                          With
     R/SPECIAL CRIMINAL APPLICATION NO.            5560 of 2021
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 USHABEN W/O. PATANJALBHAI MADHUBHAI KABARIA THRO
        POA RAVIBHAI PATANJALBHAI KABARIA
                       Versus
                  STATE OF GUJARAT
=============================================
Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                           Date : 03/08/2021

                         COMMON ORAL ORDER

1. RULE. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent State in all the four matters.

2. All the four petitions have been preferred for quashing and setting aside the condition imposing 1.5 times Bank Guarantee for releasing of the vehicle i.e. Dumpers, by the 2nd Additional Chief Judicial Magistrate, Amreli in its orders dated 19.02.2021 below Muddamal Applications under Section 451 of Cr.P.C.; and further the orders dated 07.04.2021 passed by the learned Sessions Judge, Amreli, whereby the revision applications of the petitioners came to be rejected reaffirming the condition impugned.

R/SCR.A/5545/2021 ORDER DATED: 03/08/2021

3. Ms. Kruti Shah, learned advocate appearing for the petitioners, submitted that vehicles were seized in relation to the F.I.R. being C.R..No.11193004210037 of 2021, registered on 17.01.2021 with Amreli Rural Police Station for the offences punishable under Sections 379 and 114 of the IPC and Section 21 of the Mines and Mineral (Regulation and Development) Act, 1957 against the accused persons. The present petitioners are the owners of the vehicles being Dumpers.

3.1 The petitioners made Muddamal Applications for releasing of the vehicles before the 2nd Additional Chief Judicial Magistrate, which were allowed vide order dated 19.02.2021 by imposing certain terms and conditions including the condition of furnishing 1.5 times bank guarantee of the value of the vehicles in question. Being aggrieved by the same, the petitioners preferred Revision Applications before the Sessions Judge, Amreli, which came to be rejected vide order dated 07.04.2021.

3.2 Ms. Kruti Shah, learned advocate, submitted that in accordance to the provisions of Mines and Mineral (Regulation and Development) Act, 1957, the Geologist, Geology and Mining Department, Amreli, for the breach of Rules 3, 5, 7 and 10 of the Gujarat Mineral (prevention of Illegal Mining, Transportation and Storage) Rules, 2017 has compounded the offence and accordingly the amount of the premium and compounding charges were

R/SCR.A/5545/2021 ORDER DATED: 03/08/2021

paid.

3.3 Ms. Shah contended that the order of the Geologist dated 04.02.2021, shows that: (i) Rs.80150/- and the Environment compensation charge of Rs.432/- have been paid in respect of Dumper Registration No.GJ- 14-T-4863 (ii) Rs.75,125/- and the Environment compensation charge of Rs.360/- have been paid in respect of Dumper Registration No.GJ-14-T-3504 (iii) Rs.80150/- and the Environment compensation charge of Rs.432/- have been paid in respect of Dumper Registration No.GJ-14-X-0234 and (iv) Rs.75,125/- and the Environment compensation charge of Rs.360/- have been paid in respect of Dumper Registration No.GJ-14-X- 1234. She submits that since the offence under the Gujarat Mineral (prevention of Illegal Mining, Transportation and Storage) Rules, 2017, has been compounded, furnishing of 1.5 times bank guarantee of the value of the vehicles in question would be difficult task and on that ground prays for quashing and setting aside the condition of furnishing 1.5 times bank guarantee of the value of the vehicles in question.

4. Heard learned advocates on both the sides and perused the material on record.

5. The object of Section 451 Cr.P.C. is well defined by the Hon'ble Supreme Court in the case of

R/SCR.A/5545/2021 ORDER DATED: 03/08/2021

Sunderbhai Ambalal Desai vs. State of Gujarat, 2003(1) G.L.H. 307, wherein the Hon'ble Apex Court has extracted Para - 4 of the judgment delivered in the case of Smt. Basava Kom Dyamangouda Patil vs. State of Mysore and Another [ (1977) 4 SCC 358], as under:

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place, it may be returned during any inquire or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance.

The court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the state or its officers had taken due care and caution to protect the property, the magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.

To avoid such a situation, in our view, powers under

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Section 451 Cr.P.C. should be exercised promptly and at the earliest."

5.1 Further, in Sunderbhai Ambalal Desai's case (supra), in paragraphs - 9 and 10, it has been observed thus:

"Valuable Articles and Currency Notes:

9. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.

10. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:-- (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security."

6. Considering the facts and circumstances of the case and the principle rendered in the above-referred decision, and the fact that the offence under the provision of Gujarat Mineral (prevention of Illegal Mining, Transportation and Storage) Rules, 2017 has already been compounded by the Geologist and ordered to release the vehicles and now the only proceedings that would be against the petitioners would be under Section 379 and 114 of IPC, this Court deems it appropriate to substitute the condition imposed upon the petitioners to furnish 1.5 times bank guarantee of the value of the vehicles, as petitioners would furnish solvent surety as

R/SCR.A/5545/2021 ORDER DATED: 03/08/2021

per the value of the Panchnama and Muddamal receipts.

7. In the result, all the petitions are allowed to the above extend. The order passed by the Sessions Judge, Amreli in Revision Applications are quashed and set aside. The orders dated 19.02.2021 passed by 2nd Additional Chief Judicial Magistrate, Amreli is modified to the extent that instead of furnishing 1.5 times Bank Guarantee of the value of the vehicles in question, the petitioners shall furnish solvent surety as per the value in the Panchnama and Muddamal Receipts. Rest of the conditions imposed by the 2nd Additional Chief Judicial Magistrate, Amreli in its orders dated 19.02.2021 below Muddamal Applications, would remain unaltered. The petitions stand disposed of accordingly. Rule is made absolute to the above extent.

Office to place copy of this order in each matter.

(GITA GOPI, J.) Pankaj