Gujarat High Court
Bhavesh Laxmidas Thakkar vs State Of Gujarat on 13 July, 2022
Bench: Samir J. Dave
R/CR.RA/362/2022 ORDER DATED: 13/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 362 of 2022
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BHAVESH LAXMIDAS THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MR SALIM M SAIYED(5172) for the Applicant(s) No. 1
MR R. C. KODEKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 13/07/2022
ORAL ORDER
1) Rule. Learned APP Mr. R. C. Kodekar waives service of notice for
and on behalf of Respondent-State.
2) The applicant has preferred this application under section 397 read
with section 401 of the Code of Criminal Procedure, Code, 1973
for quashing and setting aside of the order dated 26.07.2021 passed
by the learned Sessions Judge, Navsari in Criminal Misc.
Application No.121 of 2020 and thereby release of the muddamal
mobile phone Apple Iphone Xs.
3) Learned advocate for the applicant submitted that on registration of
the FIR being C.R. No.II- 1066/2019 registered with Navsari Rural
Police Station, District Navsari for the offences under the provision
of the Narcotic Drugs and Psychotropic Substances Act, 1985, the
mobile phone of the applicant has been seized as muddamal in
connection with the aforesaid offence.
R/CR.RA/362/2022 ORDER DATED: 13/07/2022
4) Learned advocate for the applicant submitted that for the release of
the mobile phone, the applicant had approached the concerned
Sessions Court, however, the said application came to be rejected
by an order dated 26.07.2021 and, therefore, the present application
is filed for release of the mobile phone in question. He further,
under the instructions, submitted that the applicant is owner of the
mobile phone in question and the mobile phone is not involved in
any other case and even no one has claimed for the interim custody
of the muddamal mobile phone and if the interim custody of the
said mobile phone is handed over to the applicant, he will abide by
the conditions that may be imposed by this Court while handing
over the mobile phone. He further submits under the instructions
that the mobile phone in question is not involved in any other case.
He, therefore, urged that this petition may be allowed on suitable
conditions.
5) Learned APP for the respondent-State has strongly objected the
submissions made by learned advocate for the applicant and
submitted that mobile in question was used for the transaction of
contraband articles by the accused and if this mobile phone would
be released, it will be used for such offence by the applicant.
6) It is important to refer to the ratio laid down in the case of
'Sunderbhai Ambalal Desai Vs. State Of Gujarat', reported in AIR
2003 SC 638, wherein, the Apex Court lamented the scenario of
number of muddamal having been kept unattended and becoming
useless within the police station.
7) Further, from the submissions canvassed by learned advocate for
the applicant, it is revealed that if the mobile in question is not
R/CR.RA/362/2022 ORDER DATED: 13/07/2022
released, ultimately it would reduce to scrape. As against this,
continuing the mobile phone in police custody as muddamal, for
various reasons, hardly turns out to be a factor for furtherance of
dispensation of justice, on conclusion of the trial, as and when that
stage is reached.
8) The Co-ordinate Benches of this Court in number of cases, some of
which are noted above, have released the muddamal mobile. This
Court has taken into consideration those decisions and the
judgments / orders referred in those decisions. Having considered
the same, taking any different view would not be proper.
9) Resultantly, this application is allowed. The impugned order is
hereby quashed and set aside. The authority concerned is directed
to release the mobile phone of the applicant, muddamal mobile
phone Apple ipohone Xs, on the terms and conditions that the
applicant:
(i) furnish a solvent surety of the amount equivalent to the
value of the mobile phone as per the value disclosed in
the seizure memo or panchnama;
(ii) shall file an undertaking before the trial Court that prior
to alienation or transfer in any mode or manner, prior
permission of the concerned Court shall be taken till
conclusion of the trial;
(iii) hall also file an undertaking to produce the mobile
phone as and when directed by the trial Court;
(iv) in the event of any subsequent offence, the mobile
R/CR.RA/362/2022 ORDER DATED: 13/07/2022
phone shall stand confiscated .
(v) Before handing over the possession of the mobile
phone to the applicant, necessary photographs shall be
taken and a detailed panchnama in that regard, if not
already drawn, shall also be drawn for the purpose of
trial.
(vii) If, the IO finds it necessary, videography of the mobile
phone also shall be done. Expenses towards the
photographs and the videography shall be borne by the
applicant.
10) Rule is made absolute to the aforesaid extent. Direct service is
permitted.
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
