Gujarat High Court
Ravibhai Ashokbhai Tivari vs State Of Gujarat on 6 February, 2024
NEUTRAL CITATION
R/SCR.A/15105/2023 ORDER DATED: 06/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 15105 of 2023
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RAVIBHAI ASHOKBHAI TIVARI
Versus
STATE OF GUJARAT
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Appearance:
MR MIHIR VAKHARIYA(8336) for the Applicant(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 06/02/2024
ORAL ORDER
[1.0] RULE returnable forthwith. Learned
Additional Public Prosecutor waives service of
notice of Rule for and on behalf of the
respondent.
[2.0] By this petition under Article 227 of
the Constitution of India, the petitioner calls
in question the legality and validity of the
order dated 06.10.2023 passed by the learned 8th
Addl. Sessions Judge, Rajkot in Criminal Revision
Application No.201/2023, thereby confirming the
order dated 02.09.2023 passed by learned Judicial
Magistrate First Class, Rajkot in Muddamal
Application.
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[3.0] The petitioner herein is the registered
owner of the vehicle Ashok Leyland 2516XL bearing
Registration No. GJ-10-TX-4408, which is
hypothecated with Pahal Financial Services Pvt.
Ltd. and has issued no objection certificate that
it has no objection if the vehicle is released in
favor of the petitioner. The said vehicle was
seized by the police in connection with the FIR
being CR No.11208037230418 of 2023 registered
with Kuvadva Road Police Station, Rajkot City for
the offences under the Indian Penal Code, 1860;
Essential Commodities Act and Explosives Act.
[4.0] The petitioner preferred an application in
the Court of the learned Magistrate for release
of the vehicle under Section 451 of the CrPC. The
said application was ordered to be rejected by
the learned Magistrate.
[5.0] Being dissatisfied the petitioner preferred
Criminal Revision Application before the Sessions
Court which also came to be rejected.
[6.0] Being dissatisfied the petitioner has come
up with this petition.
[7.0] Having heard learned counsel appearing for
the parties and having gone through the material
on record, I am of the view that pending the
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criminal proceedings the vehicle should have been
ordered to be released, subject to certain terms
and conditions so as to protect the interest of
both, the petitioner as well as the prosecution.
[8.0] I am conscious of the fact that both the
Courts below have thought it fit not to exercise
the jurisdiction in favour of the petitioner.
Ordinarily, when there are concurrent findings of
fact, the Court should interfere only in rarest
of the rare case in exercise of its powers under
Article 227 of the Constitution of India.
However, taking into consideration the fact that
if the vehicle is allowed to remain in custody at
the police station, then by passage of time the
vehicle will get damaged and deteriorated. No
useful purpose would be served to allow the
vehicle remain at the police station.
[9.0] A Division Bench of this Court in Letters
Patent Appeal No.1168 of 2012 decided on 11th
October 2012 had the occasion to consider almost
an identical issue with regard to release of the
vehicle. In the said case, the vehicle was seized
in connection with the offence under IPC and
Essential Commodities Act. The Court made the
following observations :
"10. In any view of the matter, we are not
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going into the merit of the question as to
whether the vehicle is liable to be
confiscated under Rule 17 of the Rules,
2005, for which a show cause notice has
already been issued and the proceedings
will take its own course. We are only
concerned with the limited question as to
whether the vehicle should be ordered to
be released by imposing suitable terms and
conditions pending the confiscation
proceedings.
11. We find substance in the submission of
Ms. Shah that by keeping the vehicle open
to sky for a long period of time will
reduce the vehicle to a scrap. The object
of Rule 18 of the Rules, 2005 is analogous
to Section 451 of the Criminal Procedure
Code. An identical question fell for
consideration of the Supreme Court in the
case of Sunderbhai Ambalal Desai Vs. State
of Gujarat, reported in AIR 2003 SC 638.
The Supreme Court was primarily dealing
with the provisions of Sections 451 and
457 of the Code. While quoting the
aforesaid two provisions of the Act in the
judgment, it was observed in para 7 as
under:-
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"7. In our view, the powers under
Section 451 Criminal Procedure Code
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 panchnama 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
property 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."
12. To safeguard the interests of the
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prosecution, in that case the Supreme
Court directed that following measures
should be adopted giving instances
contained in para 12 reproduced
hereinbelow:
"12. For this purpose, if material on
record indicates that such articles
belong to the complainant at whose
house theft, robbery or dacoity has
taken place, then seized articles be
handed over to the complainant after:
(1) preparing detailed proper
panchnama of such articles;
(2) taking photographs of such
articles and a bond that such
articles would be produced if
required at the time of trial; and
(3) after taking proper security."
13. While dealing with the seized
vehicles from time to time by the
police either in commission of various
offences or abandoned vehicles or
vehicles which are recovered during
investigation of complaint of thefts,
the court observed as under:-
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"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 applications for
return of such vehicles.
18. In case where the vehicle is not
claimed by the accused, owner, or the
insurance company or by a third
person, then such vehicle may be
ordered to be auctioned by the court.
If the said vehicle is insured with
the insurance company then the
insurance company be informed by the
court to take possession of the
vehicle which is not claimed by the
owner or a third person. If the
insurance company fails to take
possession, the vehicles may be sold
as per the direction of the court.
The court would pass such order
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within a period of six months from
the date of production of the said
vehicle before the court. In any
case, before handing over possession
of such vehicles, appropriate
photographs of the said vehicle
should be taken and detailed
panchnama should be prepared."
[10.0] Considering the fact that the vehicle in
question is seized under the Essential
Commodities Act and considering the submission
made by the learned APP that till date no any
confiscation proceedings are initiated under the
Essential Commodities Act for seizure of the
vehicle by any of the competent authority,
present petition is allowed. The impugned orders
are hereby quashed. The authority concerned is
directed to release the vehicle of the petitioner
i.e. Ashok Leyland 2516XL bearing Registration
No. GJ-10-TX-4408 on the petitioner's furnishing
an undertaking of the nature as refer to
hereinafter:
(i) The petitioner shall execute a bond
within a period of one week from today, for
the production of the vehicle so released,
if and when required before the Court having
jurisdiction to try the offence on account
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of such seizure.
(ii) The petitioner shall not indulge in any
such illegal activity.
(iii) The petitioner shall not sell,
transfer or alienate the vehicle in any
manner, pending the criminal case and shall
produce the vehicle before the Investigating
Officer as and when call upon to produce the
same for the purpose of further proceedings.
[11.0] The petitioner is directed to file an
undertaking on oath on the above terms, and on
filing such an undertaking before the
Investigating Officer, the Investigating Officer
shall immediately release the vehicle and hand
over the same to the petitioner.
[12.0] If the vehicle as on today is in custody
of the other respondent, then in view of the
order passed today, the same shall be handed over
to the petitioner, subject to the above terms.
[13.0] Rule is made absolute to the aforesaid
extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J)
MOHMMEDSHAHID
