Gujarat High Court
Hareshbhai Bhaishankarbhai ... vs State Of Gujarat on 26 April, 2023
Bench: Samir J. Dave
R/SCR.A/13093/2022 ORDER DATED: 26/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 13093 of 2022
With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING) NO.
1 of 2023
In
R/SPECIAL CRIMINAL APPLICATION NO. 13093 of 2022
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HARESHBHAI BHAISHANKARBHAI BARAIYA
Versus
STATE OF GUJARAT
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Appearance:
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
MR UMANG R VYAS(5595) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR JK SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 26/04/2023
ORAL ORDER
1. Rule. Learned APP waives service of Rule on behalf of
respondent-State.
2. By way of this petition, the petitioner has sought
invocation of the extra-ordinary jurisdiction of this Court under
Article 226 and supervisory jurisdiction under Article 227 of
the Constitution of India so also the inherent powers of this
Court under Section 482 of the Code of Criminal Procedure,
1973 with a prayer to release the muddamal - (i) 970 litres of
R/SCR.A/13093/2022 ORDER DATED: 26/04/2023
Diesel (ii) Plastic tank and (iii) Pump on suitable terms and
conditions, which has been seized in connection with Station
Diary Entry No.9 of 2022 dated 27.07.2022 registered with
Alang Marine Police Station, Bhavnagar u/s. 41(1)(d) and 102
of Cr.P.C.
3. Learned advocate for the petitioner submitted that the
petitioner is the owner of the muddamal in question and that
it has been confiscated in connection with the impugned entry
made in the Station Diary of the concerned Police Station. He
submitted that if the custody of the muddamal is not handed
over to the petitioner, serious prejudice would be caused to
him as the muddamal would get damaged substantially and by
passage of time, its value may also become 'Nil'. 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.
3.1 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 Prohibition 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
R/SCR.A/13093/2022 ORDER DATED: 26/04/2023
places.
4. Learned APP submitted report dated 26.04.2023 of the
Police Inspector, Alang Marine Police Station. The same is
taken on record.
5. Heard learned advocate for the petitioner and learned
APP for the respondent State. In Sunderbhai Ambalal Desai's
case (supra), the Apex Court has made the following
observations:-
"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
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;
R/SCR.A/13093/2022 ORDER DATED: 26/04/2023
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 facts of the case and the principle
rendered in Sunderbhai Ambalal Desai's case (supra), this Court
is of the opinion that if the custody of the muddamal articles
is granted to the petitioner on certain terms and condition, it
would not cause any prejudice to the prosecution.
7. In the result, the petition is allowed. The respondent
authority is directed to release the muddamals - (i) 970 litres
of Diesel (ii) Plastic tank and (iii) Pump in favour of the
petitioner on condition that he shall furnish Bond equivalent to
the amount of goods. Before handing over possession of the
muddamal articles to the petitioner, necessary photographs
shall be taken and detailed panchnama in that regard, if not
already drawn, shall be drawn. Rule is made absolute. Direct
service is permitted.
In view of the above order, the interim application would
not survive. It stands disposed of accordingly.
(SAMIR J. DAVE,J)
PRAVIN KARUNAN
