Gujarat High Court
Hitesh Danabhai Kamliya vs State Of Gujarat on 21 March, 2024
NEUTRAL CITATION
R/SCR.A/2350/2024 ORDER DATED: 21/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 2350 of 2024
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HITESH DANABHAI KAMLIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
KURVEN K DESAI(7786) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/03/2024
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. 11186009210462 of 2021 registered with Veraval Police Station, Gir Somnath for the offence punishable under Sections 143, 147, 148, 149, 307, 395, 324, 323, 504, 506(2), 332, 333 and 120 (b) of the Indian Penal Code Section 135 of GP Act, which was culminated in Charge-sheet No.32 of 2023 and subsequently accused acquitted and it was ordered to hand over the muddamal chain to the owner after verifying the ownership. Pursuant to the said order, the present petitioner has approached the learned Trial Court and preferred the application for getting muddamal being Criminal Misc. Application No.341 of Page 1 of 4 Downloaded on : Fri Mar 22 21:36:00 IST 2024 NEUTRAL CITATION R/SCR.A/2350/2024 ORDER DATED: 21/03/2024 undefined 2023, the said application came to be dismissed by the learned Sessions Judge assigning the reason that the petitioner has produced the bill of the ownership, which is in the name of father of the petitioner. As the ownership was in dispute, the learned Sessions Judge has been pleased to dismiss the said petition. Hence, the present application is filed to quash and set aside the order dated 01.12.2023 passed by learned Sessions Judge, Gir- Somnath, Veraval in Criminal Misc. Application No.341 of 2023.
[3] Heard learned advocate for the petitioner and learned APP for the respondent - State.
[4] 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 452 of the Cr.P.C., at the earliest, even in case on hand trial is over, and accused persons have also not claimed muddamal.
[5] Learned Additional Public Prosecutor appearing for the respondent - State has submitted that Learned APP has drawn the attention of this Court that it is verified that the case is over and now, no accused has been benefited for the alleged muddamal and as order is passed by the learned Sessions Judge Page 2 of 4 Downloaded on : Fri Mar 22 21:36:00 IST 2024 NEUTRAL CITATION R/SCR.A/2350/2024 ORDER DATED: 21/03/2024 undefined to handover the possession of alleged muddamal to the present petitioner after verifying the ownership of the said article. The petitioner has producedthe purchase bill dated 13.01.2021s of the muddamal [New Shailraj Jewellers], which is in the name of the father of the present petitioner.
[5.1.] 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.
[6] Considering the facts of the case, the power under Section 452 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.
[7] It is the case of the present petitioner that his father has given the said muddamal as a gift to the present petitioner as the petitioner is serving in the police department and his father has Page 3 of 4 Downloaded on : Fri Mar 22 21:36:00 IST 2024 NEUTRAL CITATION R/SCR.A/2350/2024 ORDER DATED: 21/03/2024 undefined also filed affidavit in this regard, wherein stating that the said gold chain is purchased in the name of petitioner's father and same is given to the present petitioner as a gift and he has no objection, if the possession of the said gold chain is handed over to the present his son i.e. petitioner.
[8] Considering the aforesaid fact, it appears that there is no dispute with regard to the ownership of the gold chain. Considering the fact that it appears that gold chain belongs to the father of the present petitioner and he has no objection, if the said gold chain is handed over to his son i.e. present petitioner.
[9] In the result, the petition is allowed. The, Impugned order passed by the learned Court below is hereby quashed and set aside. The authority concerned is directed to handover the muddamal Gold articles of the petitioner as per Rules after due and proper verification.
[10] Rule is made absolute. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 4 of 4 Downloaded on : Fri Mar 22 21:36:00 IST 2024