Gujarat High Court

Artiben Jatinkumar Doshi vs State Of Gujarat on 2 February, 2024

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      R/CR.RA/1291/2023                             ORDER DATED: 02/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CRIMINAL REVISION APPLICATION (FOR MUDDAMAL) NO.
                           1291 of 2023
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                 ARTIBEN JATINKUMAR DOSHI
                              Versus
                     STATE OF GUJARAT
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Appearance:
MR SALIM M SAIYED(5172) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
                        Date : 02/02/2024
                         ORAL ORDER

Rule. Learned APP waives Rule for the Respondent State.

1. The petitioner has preferred this application under section 397

read with Section 401 of the Code of Criminal Procedure, 1973

challenging the order passed by the learned 3 rd Additional

Sessions Judge, Surat in Sessions Misc. Application No. 5155 of

2023 on 08.07.2023.

2. The brief facts giving rise to the present revision

application are as under:-

2.1 That FIR I-C.R. No. 11210008230031 of 2023 came to

be lodged with Sarthana Police Station, Surat City, for the

offence punishable under Section 8(C), 22(A) and 29 of the

Narcotic Drugs and Psychotropic Substances Act.

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2.2 That during the investigation, the investigating officer

seized Honda Activa bearing RTO registration No. GJ-05-SH-

2689 and the vehicle is in the ownership of the applicant. That the

applicant filed Criminal Misc. Application No. 5155 of 2023 under

Section 451 of the Criminal Procedure Code, 1973 (for short, the

Cr.P.C.) before the learned Sessions Court, Surat for releasing of

the vehicle but the learned 3 rd Additional Sessions Judge, Surat by

an order dated 8th July, 2023 was pleased to reject the application

of the applicant.

3. Being aggrieved and dissatisfied with the said order,

the applicant has filed the present revision application mainly

stating that the applicant is the owner of the registered owner of

vehicle and the applicant has filed the application for interim

custody of the vehicle. That in the case of the prosecution, it is

mentioned that the accused was sitting on the vehicle and no

contraband was found from the vehicle. That the applicant being a

bona-fide owner of the vehicle requires the vehicle for her use and

the learned 3rd Additional Sessions Judge, Surat has failed to

appreciate these facts and also the law laid down in the case of

Madan Lal vs. State of NCT of Delhi reported in 2002 Cri. L.J

2605 and Ashok Kumar Kapoor Vs. State of GNCT of Delhi,

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reported in 2019 (1) Crimes 238 (Del) and hence, the muddamal

vehicle may be released on interim custody of the applicant.

4. Heard Mr. Salim M. Saiyed learned advocate for the

applicant and Ms. Jirga Jhaveri, learned APP for the State.

5. Learned Advocate for the applicant submits that the

alleged contraband has been recovered from the custody of the

original accused and the present applicant is the owner of the

vehicle i.e. Honda Activa bearing RTO registration No. GJ-05-SH-

2689 and she has nothing to do with the offence. That as per the

FIR the original accused was sitting on the vehicle and it is not the

case of the prosecution that the original accused was driving the

vehicle and at that time he was intercepted and the contraband

was found. That as per the case of the prosecution, the vehicle

was being used by the present applicant but the fact reveals from

the statement of the co-accused which cannot be believed. That

the contraband is 0.960 gram worth Rs.9,600/- which is a small

quantity and it is not the case of the prosecution that any

contraband was found from the vehicle of the applicant. The

applicant is also entitled to the custody of the vehicle as per ratio

laid down in the case of 'SUNDERBHAI AMBALAL DESAI VS.

STATE OF GUJARAT', AIR 2003 SC 638, wherein, the Apex

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Court lamented the scenario of number of vehicles having been

kept unattended and becoming junk within the police station

premises.

6. Learned APP for the respondent - State has objected

the submissions made by learned advocate for the petitioner and

urged that if the vehicle can be released, the same will be

exercised at any time for the same offence.

7. Heard learned advocates on both the sides and perused the

documents 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 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."

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8. Section 451 of the Cr.P.C. mandates that when any property

is produced before any criminal court during the 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.I.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 I(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 inquiry 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

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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 of the Cr.P.C. should be exercised promptly and at the earliest."

9. In the present case it appears that the learned 3 rd Additional

Sessions Judge, Surat has rejected the application of the applicant

mainly on the apprehension that if the vehicle is returned to the

applicant, it would be further use for similar kind of offences and

prima facie this findings do not appear to be proper. That the

interim custody of the vehicle can be given to the applicant in light

of the fact that no muddamal drugs have been found from the

vehicle and even as per the case of the prosecution, the accused

was sitting on the vehicle.

10. it is an admitted position that the vehicle in question stands

registered in the name of the applicant and considering the facts

and circumstances of the case and in view of the principle laid

down by the Apex Court in Surenderbhai Ambalal Desai (Supra),

this Court is of the opinion to exercise discretion in favour of the

applicant for releasing the vehicle in question.

11. In the result, the application is allowed. Impugned order

dated 8th July, 2023 passed in Criminal Misc. Application No. 5155

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of 2023 by the learned 3 rd Additional Sessions Judge, Surat is

quashed and set aside and the concerned respondent authority is

directed to release the muddamal vehicle of the applicant being

Honda Activa bearing RTO registration No. GJ-05-SH-2689,

which has been seized in connection with the FIR No.

11210008230031 of 2023 came to be lodged with Sarthana

Police Station, Surat City in favour of the applicant, on the terms

and conditions that the applicant:

(i) shall furnish a solvent surety of the amount equivalent to the value of the vehicle in question as per the value disclosed in the seizure memo or panchnama.