Mahipalsinh S/O Mobatsinh ... vs State Of Gujarat
2021 Latest Caselaw 9695 Guj

      R/SCR.A/6372/2021                                 ORDER DATED: 28/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 6372 of 2021

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            MAHIPALSINH S/O MOBATSINH NATHUSINH TANWAR
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR DEVANSH J DAVE (8852) for the Applicant(s) No. 1
MR JAYESH A DAVE (253) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 28/07/2021

                                 ORAL ORDER

1. Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent-State. With the consent of learned advocates on both the sides, the matter is heard today finally.

2. This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking the relief to release the muddamal Mobile Phone being ONE PLUS 7T GLACIER BLUE having Serial No.861894043976350/343, which was seized in connection with the offence punishable under the Gujarat Prohibition Act (hereinafter referred to as "the Act"), on suitable terms and conditions.

3. Learned advocate for the petitioner submitted that the petitioner is the owner of the mobile phone in question and he has been named in the complaint. The copy of the Retail Invoice dated 24.06.2020 has been produced on record to prove the aspect of ownership.

3.1 Learned advocate for the petitioner submitted that the muddamal mobile phone has been detained by the investigating officer in question with

R/SCR.A/6372/2021 ORDER DATED: 28/07/2021

the impugned complaint registered under the Gujarat Prohibition Act and that if the interim custody of the mobile phone is not handed over to the petitioner, serious prejudice would be caused to him, as the muddamal mobile phone would get substantially damaged by the time the trial gets concluded and probably, by that time, the value of the muddamal mobile phone may also become 'Nil'. It was submitted that this Court has ordered release of muddamal under section 98(2) of the amended Act. It was, accordingly, urged that this Court may direct release of the muddamal in exercise of the extra- ordinary jurisdiction under Article 226 of the Constitution of India on suitable terms and conditions.

3.2 The attention of the Court was invited to the judgment of the Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638, wherein the Apex Court ordered release of muddamals seized under the provisions of the Act while lamenting the scenario of a number of vehicles having been kept unattended and becoming scrap within the police station premises or at any other designated places.

4. Learned Additional Public Prosecutor appearing for the respondent- State vehemently contended that the mobile phone was found in the vehicle in which the prohibited liquor was being transported. He submitted that in view of the embargo contemplated under the provisions of section 98 of the Act, the Courts below are not empowered to release the muddamal articles. It was, accordingly, urged that the present petition may not be entertained.

5. Heard learned advocates on both the sides and perused the documents on record. There is no dispute on the issue that the petitioner is the owner of the mobile phone, which has been seized in connection with the complaint in question. In Sunderbhai Ambalal Desai's case (supra), the Apex Court has made the following observations:-

"4. Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which read thus -

"451. Order for custody and disposal of property pending trial in

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certain cases.- When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and. if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation-For the purposes of this section, "property" includes

(a) property of any kind or document which is produced before the Court or which is in its custody.

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

457. Procedure by police upon seizure of property.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as- (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same.

6. It is submitted that despite wide powers proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody.

7. In our view, the powers under Section 451 Cr.P.C. should be

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exercised expeditiously and judiciously. It would serve various purposes, namely:-

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 panchanama before handing over possession of 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 properly 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."

6. Considering the factual aspects of the case and the principle rendered in Sunderbhai Ambalal Desai's case (supra), this Court is of the considered opinion that the custody of the muddamal article, if granted in favour of the applicant on certain terms and conditions, would not cause any prejudice to the prosecution.

7. In the result, the petition is allowed. The authority concerned is directed to release the muddamal Mobile Phone being ONE PLUS 7T GLACIER BLUE having Serial No.861894043976350/343, in favour of the petitioner on condition that he shall furnish bond equivalent to the amount of goods, as stated in the seizure memo. Before handing over possession of the muddamal articles to the petitioner, necessary photographs shall be taken and a detailed panchnama in that regard, if not already drawn, shall be drawn for the purpose of trial. Rule is made absolute. Direct service is permitted. Registry to send a writ of this order to the respondents via fax, email and / or any other suitable electronic mode.

( GITA GOPI, J ) PRAVIN KARUNAN