Gujarat High Court
Miteshkumar Chimanbhai Gurjar vs State Of Gujarat on 29 June, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/118/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 118 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 117 of 2020
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MITESHKUMAR CHIMANBHAI GURJAR
Versus
STATE OF GUJARAT
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Appearance:
JAIMIN R PATEL(7447) for the Applicant(s) No. 1
MR NIMESH M PATEL(6780) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/06/2020
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor waives service on behalf of the respondents. Both these petitions involve identical questions on law and facts and hence, they are decided by this common order.
2. By way of these petitions, the petitioner has prayed to quash and set aside the orders dated 11.12.2019 passed by the learned 7th Additional Sessions Judge, Panchmahals at Halol in Criminal Revision Applications No.51/2019 and 52/2019 and to issue appropriate directions for the release of the two Trucks bearing registration No. GJ-16-D-0418 and GJ-06-XX-8383.
3. The petitioner herein is the owner of the two Trucks bearing registration No. GJ-16-D-0418 and GJ-06-XX-8383 and Page 1 of 7 Downloaded on : Tue Jun 30 00:37:37 IST 2020 R/SCR.A/118/2020 ORDER is engaged in the business of transportation. On 31.08.2019 a complaint being C.R. No. I-20 of 2019 was lodged with Jambughoda Police Station inter alia alleging that the petitioner had committed offences punishable under sections 323, 379, 143, 147, 148 and 149 of IPC and rules 3, 21 and 22 of The Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. In pursuance of the registration of the impugned complaint, both the Trucks were seized. The petitioner filed applications under section 451 of Cr.P.C. before the Magisterial Court at Jambughoda; however, the same were rejected. Against such orders, the petitioner preferred revision applications being Criminal Revision Applications No.51/2019 and 52/2019 before the revisional Court. However, the said revision applications also came to be rejected. Hence, these petitions.
4. Mr. Nimesh Patel, learned advocate for the petitioner, submitted that when the alleged offence took place, the petitioner was not present at the place of incident. The petitioner has been arraigned as accused only on the basis that he is the registered owner of both the vehicles. It was submitted that the vehicles in question are the only source of livelihood of the petitioner and that if the vehicles are kept in continuous seizure, then its condition shall deteriorate as the trial shall take its own time to conclude. It was, therefore, prayed that both the Courts below have seriously erred in not releasing the vehicles in question in favour of the petitioner.
5. Mr. Pranav Trivedi, learned Additional Public Prosecutor, drew attention of the Court to the reasons assigned by both the Page 2 of 7 Downloaded on : Tue Jun 30 00:37:37 IST 2020 R/SCR.A/118/2020 ORDER Courts below in the impugned judgment and orders. It was submitted that the Courts below were completely justified in rejecting the applications filed by the petitioner since the vehicles in question were used in the commission of the illegal mining. The attention of the Court was also drawn to the judgment and order passed by the coordinate Bench of this Court in Special Criminal Application No.9745 of 2017 decided on 18.12.2017. It was, accordingly, prayed that the present petitions deserve to be rejected.
6. 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--
(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."Page 3 of 7 Downloaded on : Tue Jun 30 00:37:37 IST 2020
R/SCR.A/118/2020 ORDER
7. Sec. 451 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.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] , 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 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.Page 4 of 7 Downloaded on : Tue Jun 30 00:37:37 IST 2020
R/SCR.A/118/2020 ORDER 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."
7.1. Further, in Sunderbhai Ambalal Desai's case (supra), in paragraphs - 9 and 10, it has been observed thus:
"Valuable Articles and Currency Notes:
9. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest.
10. 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."
8. In the present case, it is an admitted position that the trucks in question stand registered in the name of the petitioner herein and as per the allegation in the impugned complaint also, the petitioner was not present at the place of incident. At this Page 5 of 7 Downloaded on : Tue Jun 30 00:37:37 IST 2020 R/SCR.A/118/2020 ORDER juncture, it would be relevant to refer to a decision passed by the coordinate Bench of this Court in Special Criminal Application No.9745 of 2017 dated 18.12.2017 wherein also, the issue pertained to release of muddamal vehicle seized under the provisions of the Mines and Minerals (Regulation and Development) Act and The Gujarat Mines (Prevention of Illegal Mining Transportation and Storage) Rules. In the aforesaid judgment, the coordinate Bench has elaborately dealt with the issue, after considering a catena of judgments rendered by this Court as well as by the Apex Court. 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 as also in the judgment rendered by the coordinate Bench of this Court, I am of the opinion that both the Courts below have seriously erred in not releasing the vehicles in question in favour of the petitioner. There is nothing on record to show that the authorized officer had issued the requisite "Form-J" to the petitioner calling upon the petitioner to furnish bank guarantee for the release of the vehicles in question.
9. In the result, both the petitions are allowed. The impugned orders dated 11.12.2019 passed by the learned 7th Additional Sessions Judge, Panchmahals at Halol in Criminal Revision Applications No.51/2019 and 52/2019 are quashed and set aside and the respondent-authority is directed to release the two Trucks bearing registration No. GJ-16-D-0418 and GJ-06-XX-8383 in favour of the petitioner on the petitioner furnishing two unconditional Bank Guarantees to the extent of 1.5 times the value of each of the vehicles in question to the satisfaction of the trial Court concerned within a period of 15 Page 6 of 7 Downloaded on : Tue Jun 30 00:37:37 IST 2020 R/SCR.A/118/2020 ORDER days from today. The petitioner shall carry on his business of transport, strictly in accordance with the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Trasportation and Storage) Rules, 2017 as also the provisions of the Minor Mineral Concession Rules, 2017. The petitioner shall not sell, transfer or alienate the vehicles in question in any manner pending the trial and shall produce the vehicles in question as and when called for. Both the petitions stand disposed of accordingly. Rule is made absolute to the above extent.
(GITA GOPI, J) Vahid Page 7 of 7 Downloaded on : Tue Jun 30 00:37:37 IST 2020