Nileshbhai Dushyantbhai Joshi vs State Of Gujarat
2024 Latest Caselaw 376 Guj

Gujarat High Court

Nileshbhai Dushyantbhai Joshi vs State Of Gujarat on 16 January, 2024

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   R/SCR.A/15195/2023                                ORDER DATED: 16/01/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
 R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
                       NO. 15195 of 2023
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               NILESHBHAI DUSHYANTBHAI JOSHI
                             Versus
                      STATE OF GUJARAT
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Appearance:
MR MIHIR VAKHARIYA(8336) for the Applicant(s) No. 1
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 16/01/2024

                                 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 8 th Addl. Sessions Judge, Rajkot in Criminal Revision Application No.199/2023, thereby confirming the order dated 02.09.2023 passed by learned Judicial Magistrate First Class, Rajkot in Muddamal Application.

[3.0] The petitioner herein is the registered owner of the vehicle Ashok Leyland Truck bearing Registration No. GJ-13-T-5969. 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

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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 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

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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 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:-

"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

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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 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:-

"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

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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 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 Truck bearing Registration No. GJ-13-T-5969 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 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

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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.)

Ajay