Bharatsinh Punjabhai Sodha ... vs State Of Gujarat
2023 Latest Caselaw 2713 Guj

     R/SCR.A/2719/2023                                ORDER DATED: 03/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 2719 of 2023

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                  BHARATSINH PUNJABHAI SODHA BARAIYA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
NIRAV V PARGHI(8032) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                            Date : 03/04/2023

                             ORAL ORDER

1. RULE. Learned Additional Public Prosecutor waives service on behalf of the respondent State.

2. By way of this petition, the petitioner has prayed to direct the concerned respondent to release the vehicle being Bolero Goods Carrier bearing registration no.GJ-07-YZ- 8891 which has been seized in connection with the FIR No.11821030220239 of 2022 registered with Zalod Police Station, District Dahod for the offences punishable under Sections 278, 285 and 114 of the Indian Penal Code and Sections 3(2)(c), 3(2)(d) and 7 of the Essential Commodities Act.

3. Learned advocate for the petitioner submitted that the petitioner is the owner of the vehicle in question and he has

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also been named in the complaint. The copy of the certificate of registration has been produced on record to prove the aspect of ownership.

4. Learned Additional Public Prosecutor, submitted that any vehicle would stand forfeited with the Government if it is found to be used for any illegal purpose and herein the present case, the petitioner has been arrayed as an accused with the vehicle in question in connection with the offence alleged in the FIR as aforesaid. It is, therefore, prayed that the present petition deserves to be rejected.

5. Heard learned advocates on both the sides and perused the documents produced on record. Considering the facts of the case, a reference to the provisions of Section 451 Cr.P.C. would be apposite:

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

When any property is produced before any Criminal Court during an 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."

6. Section 451 of the Cr.P.C. mandates that when any property is produced before any criminal court during the

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trial, the Court may make order for the proper custody of such property pending the conclusion of the trial. 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 have 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 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."

7. The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638, ordered to release muddamal vehicle seized under the provisions of the Act while lamenting the scenario of a

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number of vehicles having been kept unattended and becoming scrap within the police station premises or at any other designated places.

8. Considering the facts of the case, it would be beneficial to refer to the decision rendered by the Apex Court in case of Sunderbhai Ambalal Desai (supra), the relevant portion of which reads thus;

"15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of application for return of such vehicles."

9. Considering the facts of the present case and the principle rendered in the case of Sunderbhai Ambalal Desai (supra), this Court is of the opinion that if the interim custody of muddamal vehicle is handed over to the petitioner on certain terms and conditions, no prejudice would be caused to the prosecution.

10. In the result, the petition is allowed. The concerned respondent authority is directed to forthwith release the

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muddamal vehicle being Bolero Goods Carrier bearing registration no.GJ-07-YZ-8891 which has been seized in connection with the FIR No.11821030220239 of 2022 registered with Zalod Police Station, District Dahod, in favour of the petitioner, on the terms and conditions that the petitioner:

(a) shall furnish a solvent surety equivalent to the present value of the muddamal vehicle in question as per the the value disclosed in the seizure memo or panchnama to the satisfaction of the trial court concerned.

(b) shall not sell, transfer or alienate the vehicle in question in any manner pending the trial.

(c) shall produce the vehicle as and when directed by the trial court.

(d) if the I. O. finds use of vehicle in such anti-social, illegal activity by the present petitioner then this order shall stand cancelled and the vehicle in question shall be seized.

(e) the trial Court shall verify the ownership of the vehicle before releasing the same.

11. Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and detailed

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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 petitioner.

12. Present petition stands disposed of. Rule is made absolute to the above extent.

Direct service is permitted.

(SAMIR J. DAVE,J) ILA