Gujarat High Court
Manav Harish Bandhara vs State Of Gujarat on 7 February, 2024
NEUTRAL CITATION
R/SCR.A/12873/2023 ORDER DATED: 07/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 12873 of 2023
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MANAV HARISH BANDHARA
Versus
STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) 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 : 07/02/2024
ORAL ORDER
[1] Rule. Learned APP waives service of notice of rule for and on behalf of respondent - State.
[2] This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking relief to release the muddamal gold articles which was seized in pursuant to the FIR bearing C.R. No. 11196030211070 of 2021 registered with Sayajiganj Police Station, Vadodara City for the offence punishable under Section 120B, 201, 381, 406, 409, 420, 465, 467, 468, 471 and 477A of the Indian Penal Code and also prays to quash and set aside the order dated 11.07.2023 passed by learned 11th Additional Sessions Judge, Vadodara in Criminal Revision Application No.267 of 2022 confirming the order dated 24.11.2022 passed by learned Additional Judicial Magistrate First Class, Traffic Court, Vadodara rejecting the application of the petitioner for interim custody of the said muddamal.
Page 1 of 6 Downloaded on : Fri Feb 09 21:22:14 IST 2024NEUTRAL CITATION R/SCR.A/12873/2023 ORDER DATED: 07/02/2024 undefined [3] Heard learned advocate for the petitioner and learned APP for the respondent - State.
[4] It is the case of the petitioner that the complaint came to be filed on 09.08.2021 by one Chimanbhai Soni against the two accused. After completion of investigation, charge-sheet is filed and during the investigation, the alleged muddamal is recovered fromt the present petitioner in lieu of melted coins in short, the muddamal is not recovered in its original nature or form. Muddamal Pavati (receipt) is produced on record..
[5] 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 in regard to the valuable articles and currency notes, held that no useful purpose would be served to keep such articles in police custody for years till the trial is over and in such cases, Magistrate should pass appropriate orders as contemplated under Section 451 of the Cr.P.C., at the earliest.
[6] Learned Additional Public Prosecutor appearing for the respondent - State has opposed this petition and submits that the powers of this Court under Article 226 of the Constitution to order release of the muddamal gold articles can be exercised at any time whenever the Court deems it appropriate, still however it was urged that the present petition may not be entertained.
Page 2 of 6 Downloaded on : Fri Feb 09 21:22:14 IST 2024NEUTRAL CITATION R/SCR.A/12873/2023 ORDER DATED: 07/02/2024 undefined [7] Considering the facts of the case, the power under Section 451 of Cr.P.C. should be exercised expeditiously and judiciously, which clearly empowers the Court to order for proper custody of the articles or property pending conclusion of the trial, as owner of the article would not suffer because of its remaining unused or its misappropriation. The Court or the police would not be required to keep the article in safe custody and 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.
[8] Considering the aforesaid fact, it appears that in the charge-sheet, the present petitioner is cited as witness No.30 along with the other jewellers in other words they have all are cited as witnesses and all have received the muddamal either order passed by the learned Judicial Magistrate First Class or by the Revisional Court. However, present petitioner denied and he produced bills and materials on record. Though it was denied on the ground that muddamal is not in its original form and ownership is yet to be decided only on that count, possession of the muddamal was refused by the present petitioner. On perusal of the record, it transpires that either by the order of the learned Sessions Court/Trial Court, the custody of the muddamal being gold is given to the some other jewellers or by way of interim custody and the interim orders, those are similarly situated. Considering the muddamal Pavati (receipt), which is produced on Page 3 of 6 Downloaded on : Fri Feb 09 21:22:14 IST 2024 NEUTRAL CITATION R/SCR.A/12873/2023 ORDER DATED: 07/02/2024 undefined record. The present petitioner is also similarly situated and considering the Panchnama as well as the muddamal received from the present petitioner is also in lieu of coins. The said muddamal being recovered from the present petitioner. The said order came to be assailed by way of Revision Application Nos.364 of 2023 and 365 of 2023 by the original complainant as CH Jewellers is before this Court and by way of the interim order dated 24.03.2023 of the Co-ordinate Bench of this Court. The order dated 24.03.2023 passed by the Co-ordinate Bench of this Court reads thus:
"1. Heard learned Advocate Mr. Yash N.Nanavaty. The muddamal gold articles, which is disputed, is stated to be stolen by the accused from the shop of the applicant and sold to the person, who have been ordered to receive the muddamal article by executing a bond one and half times the amount of the gold article.
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4. In the meantime, the respondent no.2 herein in both the matters are ordered that the muddamal articles be kept in the same condition as was received from the Court, and it is further directed that no further sale would be made of the muddamal articles and be produced as and when called for by any of the Court. To that effect an undertaking be executed before the trial Court."
[9] Keeping in mind the aforesaid fact as the muddamal is recovered from the present petitioner in lieu of coins and that to in a melted form i.e. is not in its original form and it is received in Page 4 of 6 Downloaded on : Fri Feb 09 21:22:14 IST 2024 NEUTRAL CITATION R/SCR.A/12873/2023 ORDER DATED: 07/02/2024 undefined melted form and with same identity, as per the description mentioned in the muddamal receipt, is very clear and the said muddamal is recovered from the possession of the petitioner is not in dispute.
[10] In the result, the petition is allowed. Considering the other witnesses have also received the muddamal, Impugned orders passed by the learned Courts below are hereby quashed and set aside. The authority concerned is directed to release the muddamal Gold articles of the petitioner subject to following condition :
(i) applicant shall furnish a bond one and half times the amount of the gold article.
(ii) The petitioner shall not sell, transfer or alienate the gold articles in any manner and shall produce the gold article before the Investigating Officer as and when call upon to produce the same for the purpose of further proceedings.
(iii) shall also file an undertaking to produce the gold articles as and when directed by the trial Court;
(iv) in the event of any subsequent offence, the muddamal gold articles shall stand CONFISCATED.Page 5 of 6 Downloaded on : Fri Feb 09 21:22:14 IST 2024
NEUTRAL CITATION R/SCR.A/12873/2023 ORDER DATED: 07/02/2024 undefined
(v) Before handing over the possession of the muddamal gold articles 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 and draw panchnama with regard to actual verification about weight, quality and mark through advance method i.e. recognized method known as BIS standard method qua quality of gold by Government approved authority.
[11] Rule is made absolute. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 6 of 6 Downloaded on : Fri Feb 09 21:22:14 IST 2024