Jay Shaileshkumar Patel Thro Poa ... vs State Of Gujarat
2021 Latest Caselaw 13403 Guj

     R/SCR.A/7705/2021                                ORDER DATED: 03/09/2021




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO. 7705 of 2021

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     JAY SHAILESHKUMAR PATEL THRO POA SHAILESHKUMAR
                     AMRUTLAL PATEL
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR YASH N NANAVATY(5626) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 03/09/2021

                               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 by the petitioner through Power of Attorney Holder under Article 226 of the Constitution of India essentially seeking relief to release the muddamal vehicle bearing registration No.GJ-18-BF-3233, which was seized in connection with FIR being C.R. No.I - 1 of 2021, registered with ACB Police Station, Godhra, Panchmahal dated 09.01.2021 under sections 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act"), on suitable terms and conditions.

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3. Mr. Hitendra Rajput, learned advocate with Mr. Yash N.Nanavaty, learned advocate for the petitioner submitted that, on the secrete information the car was intercepted by the police, which was driven by the power of attorney holder of the petitioner. He submits that the car belongs to Jay Shaileshkumar Patel. The copy of the R.C. Book has been produced on record to corroborate the said fact.

3.1 Learned advocate for the petitioner submitted that, the muddamal vehicle i.e. Maruti Swift Desire, four- wheeler, bearing Registration No.GJ-18-BF-3233, was seized under the allegation that it was carrying the black money. He submits that the power of attorney holder is an employee of the Mines and Minerals Department, Godhra. He was going to Gandhinagar from Godhra in the said Maruti Swift Desire Car. The car was restrained near Toll Plaza at Vavdikhurd and upon checking in presence of two panchas, the currency of Rs.5,14,100/- was seized.

3.2 Mr. Rajput, learned advocate stated that the Spot Inspection Report regarding the examination of the vehicle has been given by the F.S.L. Gandhinagar on 08.01.2021. He submits that it is the case of black money and the vehicle would have no bearing to the allegation that it was carrying the black money. The panchnama is

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already drawn and the identity of the vehicle is on record even by way of Spot Inspection Report. He submits that if the interim custody of the vehicle is not given, serious prejudice would be caused to the petitioner as the muddamal vehicle would get substantially damaged by the time the trial gets concluded and probably, by that time, the value of the muddamal vehicle may also become 'Nil' as the vehicle is lying under the open sky in different climatic conditions. It was, accordingly, urged that this Court may direct release of the muddamal vehicle in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India on suitable terms and conditions.

3.3 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 muddamal vehicle 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 contended that pending trial, no powers may be exercised by this Court by releasing the muddamal vehicle seized by the police. It was, however, urged that the powers of this Court under

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Article 226 of the Constitution to order release of the vehicle can be exercised at any time whenever the Court deems it appropriate. 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. Considering the facts of the case, it would be beneficial to refer to the decision rendered by the Apex Court in Sunderbhai Ambalal Desai's case (supra), the relevant portion of which reads thus;

"5. Section 451clearly 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.

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

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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.

8. The question of proper custody of the seized article is raised in number of matters. In Smt. Baswa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed 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 inquiry 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

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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."

9. 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.

10. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.

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 vehicle, if granted in favour of the petitioner on stringent terms and conditions, no prejudice is likely to be caused to the prosecution.

7. In the result, the petition is allowed. The order dated 07.07.2021 passed by the learned 4th Additional Sessions Judge, Panchmahal at Godhra is quashed and set aside. The authority concerned is directed to release the vehicle of the petitioner bearing registration No.GJ-18- BF-3233 on the terms and conditions that the petitioner;

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(i) shall furnish, by way of security, bond and solvent surety of the equivalent amount as mentioned in the seizure memo / panchnama;

(ii) shall file an Undertaking on oath before the trial Court that prior to alienation or transfer of the vehicle in any mode or manner, prior permission of the concerned trial Court shall be taken until the conclusion of trial;

(iii) shall also file an Undertaking on oath to produce the vehicle as and when directed by the trial Court;

(iv) in the event of any subsequent offence, the vehicle shall stand confiscated.

8. Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and detailed panchnama in that regard, if not already drawn, shall be drawn for the purpose of trial. If the Investigating Officer finds it necessary, videography / photography of the vehicle shall also be done and the expenses thereof shall be borne by the applicant.

8.1 It is clarified that this order shall be subject to the decision that shall be rendered by the Apex Court in the pending S.L.P. (Cri.) No. 886 of

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2018.

9. Rule is made absolute, accordingly. 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.) Pankaj