Gujarat High Court
Kalidas Somabhai Prajapati vs State Of Gujarat on 14 March, 2023
Bench: Samir J. Dave
R/SCR.A/2232/2023 ORDER DATED: 14/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2232 of 2023
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KALIDAS SOMABHAI PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR C J GOGDA(7488) for the Applicant(s) No. 1
MR RAHUL RAJHANS(12788) for the Applicant(s) No. 1
MS MH BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 14/03/2023
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 items being LG
AC (indoor and outdoor), LG Double Door Refrigerator and
SONY LED TV 48-inch [Model No.KDL48W700C) seized in
connection with Criminal Case No.615 of 2020 pending before
the Court of learned C.J.M., Chhotaudepur on suitable terms
and conditions, which has been seized in connection with the
R/SCR.A/2232/2023 ORDER DATED: 14/03/2023
complaint registered as FIR No.11185008230026 registered with
Vadinar-Marine Police Station u/s. 65(e), 81 and 98(2) of the
Gujarat Prohibition 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 complaint
bearing Criminal Case No.615 of 2020 filed under the
provisions of the Negotiable Instruments Act. The said
complaint was filed against the son of the petitioner and the
petitioner is not an accused in the said FIR. He submitted that
if the interim 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 by the time
the trial gets concluded and probably, by that time, the value
of the muddamal may also become 'Nil'. It was submitted that
this Court has ordered release of muddamal under section
98(2) of the amended Act. 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
R/SCR.A/2232/2023 ORDER DATED: 14/03/2023
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.
4. Learned APP contended that the muddamal have been
seized in connection with the impugned Criminal Case as
multiple offences under the N.I. Act have been registered 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
R/SCR.A/2232/2023 ORDER DATED: 14/03/2023
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 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 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 items being LG
AC (indoor and outdoor), LG Double Door Refrigerator and
SONY LED TV 48-inch [Model No.KDL48W700C) 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
R/SCR.A/2232/2023 ORDER DATED: 14/03/2023
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
