Tata Motors Finance Limited Thro ... vs State Of Gujarat
2021 Latest Caselaw 3080 Guj

        R/SCR.A/357/2021                                JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 357 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1    Whether Reporters of Local Papers may be allowed             No
     to see the judgment ?

2    To be referred to the Reporter or not ?                      No

3    Whether their Lordships wish to see the fair copy            No
     of the judgment ?

4    Whether this case involves a substantial question            No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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     TATA MOTORS FINANCE LIMITED THRO ILYASBHAI BHIKHABHAI
                          KUSKIWALA
                            Versus
                      STATE OF GUJARAT
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Appearance:
JAYDEEP H SINDHI(9585) for the Applicant(s) No. 1
MS. MAITHILI MEHTA, APP for the Respondent(s) No. 1
RULE UNSERVED(68) for the Respondent(s) No. 2
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                           Date : 23/02/2021
                           ORAL JUDGMENT

1. The petitioner is before this Court seeking prayer to release the muddamal vehicle in question being Truck- TATA SFC 407 (Make- TATA Motors Ltd.) bearing registration no. GJ-06-AZ-0250.

2. It appears that the petitioner approached this Court seeking release of muddamal vehicle i.e. Truck- TATA SFC 407 (Make- TATA Motors Ltd.) bearing registration no. GJ-06-AZ-0250 which has been

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seized in connection with FIR being C.R. No. 11822021203298 of 2020 registered with Navsari Rural Police Station, District - Navsari for the offences punishable under Sections 65(A)(E), 81, 98(2) and 116-B of the Prohibition Act.

3. The learned advocate for the petitioner submitted that as per the allegations made in the FIR, there was liquor worth Rs.2,98,800/- found in the muddamal vehicle. It is the case of the petitioner that the petitioner is the owner of the muddamal vehicle. The muddamal vehicle in question is duly registered with the transport department of the government and the petitioner is the only claimant seeking the custody of the said muddamal vehicle.

3.1 It is submitted by the learned advocate for the petitioner that the petitioner has directly approached this Court for release of muddamal i.e. without prior approaching to the learned concerned Court below. It is also submitted that by virtue of provisions of section 98 of the Act, there is clear embargo for handing over the custody of the vehicle used in the offence pending the trial Court, and if the vehicle would lie at the police station for more time, there will be physical damage to it and therefore, interference of this Hon'ble Court is required in the interest of justice.

4. Learned advocate for the petitioner has submitted that respondent no. 2 has been issued a letter of authority which is produced at Annexure- C at page No. 17. The contents of which are reproduced hereinunder:

"This is to state that TMFL has financed to Mr. Ranvirsingh Sardar vide agreement no. 5002463736 for purchase of vehicle No. GJ 06 AZ 0250, whereby hypothecation charge has been created by Ranvirsingh

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Sardar in favor of TMFL and also on date the said hypothecation charge is in existence and the entire financial assistance availed from TMFL is yet to be repaid and the said account is NPA in our books.

We have come to know that the said vehicle, is at present in the custody of Navsari Police Station, Dist. Navsari under the offence of Gujarat Prohibition Act, 1949 (U/s. 65-AE, 112(2), 98(2) and 81. Hence, request you to handover the said vehicle to our representative Mr. Iliyas Kuskiwala so that we can continue with our legal proceedings."

It is therefore submitted that the loan which is disbursed in favour of the respondent No. 2 herein is yet to be repaid by the

5. It is further argued that no purpose is likely to be served to continue the possession of the vehicle.

6. Learned advocate Mr. Jaydeep Sindhi appearing for the petitioner has relied upon the decision of the Apex Court rendered in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in AIR 2003 SC 638.

7. Learned APP Ms. Maithili Mehta for the State has requested the Court to pass an appropriate order as may be deemed just and proper.

7.1 Learned APP does not dispute the ratio laid down by the Hon'ble Apex Court, in the case of General Insurance Council and Ors. (supra). However, it is urged that due care be taken in taking the photographs and recording videography inasmuch as the requirement of the Court while trying the matter shall need to be taken care of.

8. Having heard the arguments of both the sides and considering order dated 08.09.2020 passed by the Co-ordinate Bench in Special

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Criminal Application No. 3449 of 2019 in case of H.D.B. Financial Limited through Kinjal Yogendra Bhatt vs Sate of Gujarat and order dated 26.07.2019 passed by the coordinate Bench in Speical Criminal Application No. 5119 of 2019 in case of AU Small Finance Bank Ltd, through Rajan Sureshbhai Chudasma Vs. State of Gujarat, wherein the coordinate Bench has taken into consideration the ratio laid down by the Hon'ble Apex Court in the case of General Insurance Council and Ors.(supra). The relevant findings of which shall be profitable to reproduce hereinafter:-

"10. This Court in the said matter after considering the issue came to the following conclusion:-

"Since there is a mandatory requirement to act in the manner provided in Section 158 (6) there is no justifiable reason as to why the requirement is not being followed.

It is, therefore, directed that all the State Governments and the Union Territories shall instruct, if not already done, all concerned police officers about the need to comply with the requirement of Section 158 (6) keeping in view the requirement indicated in Rule 159 and in Form 54. Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case there is non-compliance, appropriate action shall be taken against the erring officials. The Department of Transport and Highway shall make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the concerned State Government/Union Territories so that necessary action can be taken against the concerned officials." The writ petition is accordingly disposed of."

11. Despite the aforesaid directions having been issued by this Court in the aforesaid two matters, grievance is still being made by the Petitioners, that the police, investigating agency and the prosecuting agency are not taking appropriate and adequate steps for compliance of aforesaid directions issued by this Court. Therefore, a need has arisen for giving further directions so as to clear the clouds and iron out the creases.

12. Notice of the said petition was issued to all the States and Union Territories. Almost all the States have

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contended that they have already issued necessary guidelines and directions for full and complete compliance of the provisions contained in Sections 451 and 457 of the Code as elaborated in Sunderbhai Ambalal Desai (supra) as also under Section 158 (6) of the M.V. Act and 159 of the Rules as directed in General Insurance Council case (supra). Thus, in one voice, they have contended that there would not be any difficulty in compliance of the directions that may be issued in furtherance of achieving the object as directed by this Court. Thus, in our view, there appears to be consensus in this matter.

13. Petitioners have submitted that information with regard to all insured vehicles in the country is available with the Insurance Information Bureau created by IRDA. This information could be utilised to assist the police to identify the insurer of the vehicle. Upon recovery of the vehicle in police station, insurer/ complainant can call an All India Toll Free No. to be provided by Insurance Information Bureau to give the information of the recovered vehicle. Thereafter, the insured vehicle database would be searched to identify the respective insurer. Upon such identification, this information can be communicated to the respective insurer and concerned police stations for necessary coordination.

14. In our considered opinion, the aforesaid information is required to be utilised and followed scrupulously and has to be given positively as and when asked for by the Insurer. We also feel, it is necessary that in addition to the directions issued by this Court in Sunderbhai Ambalal Desai (supra) considering the mandate of Section 451 read with Section 457 of the Code, the following further directions with regard to seized vehicles are required to be given.

"(A) Insurer may be permitted to move a separate petition for release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the petition. The necessary photographs may be taken duly authenticated and certified, and a detailed panchnama may be prepared before such release.

(B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with.

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(C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. The undertaking/guarantee would be furnished at the time of release of the vehicle, pursuant to the petition for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer."

15. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only they occupy substantial space of the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct that all the State Governments/ Union Territories/Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that the activities of each and every police stations, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the concerned Division/Commissioner of Police of the concerned cities/Superintendent of Police of the concerned district."

8.1 It can be seen from the said decision that the Court has made it amply clear that the insurer may be permitted to move a separate petition for the release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court and such release shall be made within 30 days of the said petition, after taking necessary photographs which is duly authenticated and certified and a detailed panchnama is drawn. The photographs so taken, may be used as secondary evidence during the trial, hence, physical production of the vehicle can be dispensed with. The Court also has directed the insurer to submit an undertaking/ guarantee to remit the proceeds from the sale/auction of the vehicle conducted

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by the insurance company in the event the learned Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. Such undertaking/ guarantee would be furnished at the time of release of vehicle, pursuant to the petition for release of recovered vehicle. The Court also further directed and observed that looking to the corporate structure of the insurance company, personal bonds may be dispensed with.

8.2 In the said decision the Apex Court is more conscious about the seized vehicle lying with various police stations and they being prone to the nature decay on account of being kept in the open grounds. The Court also is concerned that the costly parts of the vehicles on being stolen and cannibalized and the vehicle becomes unworthy of being driven on road. Therefore, macro implementation of statutory provisions and careful scrutiny of activities of each and every police station with regard to the disposal of the seized vehicles is handed over to the superior office taking care by the Inspector General of the concerned divisions or the Commissioner of Police of the concerned cities.

9. This Court has also assistance of that order passed by the coordinate Bench, wherein the coordinate bench has considered the ratio laid down by the Hon'ble Apex Court in case of General Insurance Council and Ors. (supra). This Court has also assistance of the decision in case of Sunderbhai Ambalal Desai (supra).

10. Resultantly, the present petition is allowed. Payer in terms of Para 10(A) and (B) is granted. The Police shall carry out the detailed panchnama at the time of release of the vehicle. Duly authenticated and certified versions of photographs and video recordings also shall be placed before the trial Court. The trial Court concerned shall verify the ownership of the vehicle before releasing the same.

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11. Moreover, considering the corporate structure of the petitioner company, it shall be the bank guarantee instead of bond, which shall be furnished.

12. Accordingly, the present petition succeeds and is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted through E-mail / Fax.

(A. C. JOSHI,J) prk