Gujarat High Court
Azazkhan Bashirkhan Pathan vs State Of Gujarat on 16 January, 2024
NEUTRAL CITATION
R/SCR.A/660/2024 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. 660 of 2024
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AZAZKHAN BASHIRKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR MD SAAD SHOEB KAZI(13607) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 16/01/2024
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor waives service on
behalf of the respondent State. With the consent of learned advocates
on both the sides, the matter is taken up for final hearing today.
2. By this petition under Article 227 of the Constitution of India,
the petitioner calls in question the legality and validity of the order
dated 1.11.2023 passed by learned Special N.D.P.S.Judge, Surat in
Criminal Misc. Application No. 8793 of 2023 as well as the order
dated 19.8.2023 passed by learned Special N.D.P.S.Judge, Surat in
Criminal Misc. Application No. 6513 of 2023.
3. By way of this petition, the petitioner has prayed to direct the
respondents to release the muddamal being Car Tata Nexon
bearing registration No. GJ-05-RM-5313 which came to be seized
in connection with the complaint being FIR No.11210023230805 of
2023 registered with Khatodra Police Station Dist. Surat for
NEUTRAL CITATION
R/SCR.A/660/2024 ORDER DATED: 16/01/2024
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offences punishable under Sections 8(c), 22(c) and 29 of the NDPS
Act.
3. Learned advocate for the petitioner submits that the petitioner is
the registered owner of the vehicle in question. Presently, it is lying
in an idle condition under the open sky and hence, its condition
would deteriorate by every passing day. He, therefore, prayed that
the muddamal vehicle may be released on suitable terms and
conditions.
4. Learned APP submitted that the vehicle in question was used in
the commission of a grievous offence and that the petitioner would
continue with his illegal activity and therefore, the same may not be
released in his favour. It was, therefore, prayed that the present
petition may not be entertained.
5. 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 cases:
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-- P
(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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6. Sec. 451 Cr.P.C. mandates that when any property is produced
before any criminal Court during 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.L.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 [ (1977) 4 SCC 358], which reads thus :
"4. The object and scheme of the various provisions of the Code appear to be
that where the property which has been the subjectmatter 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 inquire 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 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
Cr.P.C. should be exercised promptly and at the earliest."
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7. Considering the facts and circumstances of the case and in view of
the principle laid down by the Apex Court in Sunderbhai Ambalal
Desai's case, this Court is of the opinion that the vehicle in question
could be released in favour of the petitioner on certain terms and
condition since no fruitful purpose would be served in keeping the
vehicle in an idle condition in the police station.
8. In the result, the petition is partly allowed. The impugned orders
are hereby quashed. The learned trial Court/authority concerned is
directed to release the vehicle in question being Car Tata Nexon
bearing RTO registration No. GJ-05-RM-5313 in favour of the
petitioner on the following conditions :-
(i) That the petitioner shall furnish One solvent surety
equivalent to the value of vehicle as stated in the seizure
memo;
(ii) That the petitioner shall not sell, transfer or alienate the
vehicle in question, in any manner, pending trial and shall
produce the vehicle as and when called for.
(ii) That the petitioner shall not use the vehicle in any other
criminal activity.
8.1 The petition stands disposed of accordingly. Rule is made
absolute to the above extent.
(HASMUKH D. SUTHAR,J)
BEENA SHAH
