Gujarat High Court
Tusharbhai Janeshwarbhai Fopse vs State Of Gujarat on 20 June, 2023
Bench: Samir J. Dave
R/SCR.A/6443/2022 ORDER DATED: 20/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6443 of 2022
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TUSHARBHAI JANESHWARBHAI FOPSE
Versus
STATE OF GUJARAT
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Appearance:
MR VISHWAS K SHAH(5364) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR KM ANTANI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 20/06/2023
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 Mobile Phone
being VIVO Y-12 bearing IMEI No.861168047939650 on
suitable terms and conditions, which has been seized in
connection with the complaint registered as FIR
No.11822003201133 registered with Vansda Police Station,
Navsari under relevant provisions of the Prevention of Cruelty
R/SCR.A/6443/2022 ORDER DATED: 20/06/2023
to Animals Act, Gujarat Animal Preservation (Amendment) Act
and the Motor Vehicles Act.
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
complaint. He submitted 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 damaged substantially 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,
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
places.
R/SCR.A/6443/2022 ORDER DATED: 20/06/2023
4. Learned APP contended that the muddamal Mobile phone
was found in the commission of alleged crime and accordingly,
urged that the present petition may not be entertained.
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;
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
R/SCR.A/6443/2022 ORDER DATED: 20/06/2023
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 considered opinion that if the interim custody of the
muddamal Mobile phone is granted in favour of the petitioner
on certain terms and conditions, 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 muddamal Mobile Phone
being VIVO Y-12 bearing IMEI No.861168047939650 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 article
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. Rule is made absolute.
Direct service is permitted.
(SAMIR J. DAVE,J)
PRAVIN KARUNAN
