Galiya Gelabhai Polabhai vs State Of Gujarat
2021 Latest Caselaw 12660 Guj

     R/SCR.A/5088/2021                            ORDER DATED: 27/08/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 5088 of 2021

==========================================================
                         GALIYA GELABHAI POLABHAI
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR.DEVENDRA H PANDYA(6462) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MR. JASWANT SHAH, APP (2) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 27/08/2021

                               ORAL ORDER

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

2. The present petition has been preferred to hand over the custody of the muddamal vehicle i.e. Trailor having invisible number belonging to the petitioner and for quashing and setting aside the condition imposing 1.5 times unconditional Bank Guarantee for releasing of the vehicle i.e. Trailer bearing registration No. GJ-03-AY- 2025, by the learned Session Judge, Amreli in Criminal Revision Application No.20 of 2021, on 30.04.2021.

3. Mr. Devendra Pandya, learned advocate appearing for the petitioner submitted that, vehicle was seized in relation to the F.I.R. being C.R..No. 11193008210109 of 2021, registered on 09.02.2021 with Babra Police

R/SCR.A/5088/2021 ORDER DATED: 27/08/2021

Station, District: Amreli, for the offences punishable under Sections 379, 114 of the IPC and Section 21 of the Gujarat Mineral (Prevention of Illegal Mining And Transportation and Storage) Rules, 2017, against the accused persons. The present petitioner is the owner of the vehicle being Trailer.

3.1 Mr. Pandya, submits that the petitioner made Muddamal Application for releasing of the Tractor along with Trailer before the Judicial Magistrate, First Class, Babra, which came to be rejected. Thereafter, the petitioner has preferred Criminal Revision Application No.20 of 2021 before the Sessions Court, whereby it was ordered to release the tractor bearing registered No. GJ- 03-EA-6342, with heavy condition but declined to release the trailer bearing registration No. GJ-03-AY-2025, and one of the conditions includes the condition of furnishing 1.5 times unconditional bank guarantee of the value of the vehicle in question. Being aggrieved by the same, the petitioner preferred the present petition.

3.2 Mr. Pandya, learned advocate submits that as per the order dated 17.3.2021 of the Geologist, Amreli the compounding amount of Rs. 45,100/- and Environment Compensation charge of Rs. 288/- was paid on 17.3.2021 and accordingly the offence under the provisions of Mines and Minerals Act is compounded.

4. Heard learned advocates on both the sides and

R/SCR.A/5088/2021 ORDER DATED: 27/08/2021

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 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

R/SCR.A/5088/2021 ORDER DATED: 27/08/2021

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 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. Considered the facts and circumstances of the case in view of the principle laid down by the Apex Court in Sunderbhai Ambalal Desai's case and also considered the observations made by the Hon'ble Supreme Court in the case of Jayant Etc. v. The State of Madhya Pradesh decided in Criminal Appeal Nos. 824-825 of 2020 (Arising from SLP (Criminal) Nos. 2640-2641/2020), wherein the

R/SCR.A/5088/2021 ORDER DATED: 27/08/2021

Hon'ble Supreme Court has laid down in para 13 as under:

"13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-a-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:

i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In- charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;

ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;

iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and

iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate

R/SCR.A/5088/2021 ORDER DATED: 27/08/2021

passes an order under Section 156(3) of the Code and directs the concerned In- charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In-charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.

v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section 1 of Section 23A, considering sub-section 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub- section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."

7. Taking into consideration the observations and the conclusion derived in the above-referred judgment of

R/SCR.A/5088/2021 ORDER DATED: 27/08/2021

Jayant Etc. (supra), the offences under Mines and Mineral (Regulation and Development) Act are compoundable and under the cognizance of the court the FIR under the IPC could be registered. In view of the discussions made hereinabove, this Court is of the opinion that it appropriate to substitute the condition imposed upon the petitioner to furnish 1.5 times bank guarantee of the value of the vehicle, as petitioner would furnish solvent surety as per the value of the Panchnama and Muddamal receipts.

8. In the result, the petition is allowed to the above extend. The order passed by the learned Session Judge, Amreli in Criminal Revision Application No.20 of 2021 dated 30.4.2021 is modified to the extent that instead of furnishing 1.5 times Bank Guarantee of the value of the vehicle in question, the petitioner shall furnish solvent surety as per the value in the Panchnama and Muddamal Receipts. Rest of the conditions imposed by the learned Sessions Judge, Amreli in Criminal Revision Application No.20 of 2021 would remain unaltered.

9. The authority concerned is directed to release the trailer - muddamal vehicle of the petitioner bearing registration number GJ-03-AY-2025, on furnish solvent surety as per the value in the Panchnama and Muddamal Receipts and on rest of the conditions imposed by the learned Sessions Judge, Amreli in Criminal Revision

R/SCR.A/5088/2021 ORDER DATED: 27/08/2021

Application No.20 of 2021.

10. The petition stands disposed of accordingly. Rule is made absolute to the above extent. Direct service is permitted. Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode. Learned advocate for the petitioner is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.

(GITA GOPI,J) SAJ GEORGE