Gujarat High Court
Jatinbhai Ramjibhai Vasava vs State Of Gujarat on 2 May, 2024
NEUTRAL CITATION
R/SCR.A/3062/2024 ORDER DATED: 02/05/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 3062 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 3239 of 2024
==========================================================
JATINBHAI RAMJIBHAI VASAVA
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MS LAKSHA K BHAVNANI(11339) for the Applicant(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2,3
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 02/05/2024
COMMON ORAL ORDER
1. Rule, returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule for and on behalf of the respondent.
2. By these petitions under Article 227 of the Constitution of India, the petitioner calls in question the legality and validity of the order dated 30.01.2024 passed by learned 3 rd Addl. Sessions Judge, Surat, in Criminal Revision Application No. 394 and 406 of 2023, thereby confirmed the orders dated 13.12.2023 & 20.12.2023 passed by learned JMFC, Umarpada, Surat, in Muddamal Application Nos.05 and 04 of 2023 respectively.
3. The petitioners herein are the registered owners of the vehicles being Mahindra Alpha Passenger bearing Registration No. GJ- 22-V-0140 and Mahindra Bolero Pick up bearing Registration No. GJ-05-BZ-1856. The said vehicles were seized by the police in Page 1 of 7 Downloaded on : Mon May 06 20:49:31 IST 2024 NEUTRAL CITATION R/SCR.A/3062/2024 ORDER DATED: 02/05/2024 undefined connection with the FIR being CR No. 11214002230321 of 2023 registered with Umarpada Police Station, Surat Rural, for the offences under Sections 3(3), 4, 5, 7, 25(1), 28(1)(A) and 28(2) of the Fertilizer (Inorganic, Organic and Mixed) (Control) Order, 1985 and Section 3 of the Essential Commodities Act.
4. The petitioners preferred applications in the Court of the learned Magistrate for releasing of the vehicles under Section 451 of the Code. The said applications were ordered to be rejected by the learned Magistrate.
5. Being dissatisfied the petitioner preferred Criminal Revision Applications before the Sessions Court which also came to be rejected.
6. Being dissatisfied, the petitioners have come up with these petitions. 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 vehicles should have been ordered to be released, subject to certain terms and conditions so as to protect the interest of both, the petitioners as well as the prosecution.
7. 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 vehicles are allowed to remain in custody at the police station, then by passage of time the vehicles will get damaged and deteriorated. No useful purpose Page 2 of 7 Downloaded on : Mon May 06 20:49:31 IST 2024 NEUTRAL CITATION R/SCR.A/3062/2024 ORDER DATED: 02/05/2024 undefined would be served to allow the vehicle remain at the police station.
8. Considering the bar under Section 6(E) of the Essential Commodities Act, judicial authority having no power under Section 6-C to pass an order for delivery or disposal of the goods, vehicle, animal, essential commodity etc. which includes the custody of the vehicle till the final adjudication of the appeal against confiscation. Section 6 (E) reads as under:-
6(E)- Bar of jurisdiction in certain cases.―Whenever any essential commodity is seized in pursuance of an order made under section 3 in relation thereto, or any package, covering or receptacle in which such essential commodity is found, or any animal, vehicle, vessel or other conveyance used in carrying such essential commodity is seized pending confiscation under section 6A, the Collector, or, as the case may be, the State Government concerned under section 6C shall have, and, notwithstanding anything to the contrary contained in any other law for the time being in force, any court, tribunal or other authority shall not have, jurisdiction to make orders with regard to the possession, delivery, disposal, release or distribution of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance."
9. It is pertinent to note that, pursuant to the Notice issued vide order dated 06.03.2024, P.S.I, Umarpada Police Station has produced a communication dated 01.05.2024 addressed by District Supply Officer, Surat, whether pursuant to the communication made by PSI as to whether confiscation proceedings for the impugned offence are initiated or not, reply given by the District Supply Officer is very surprising and shocking rather to reply a particular query. District Supply officer has informed the PSI that no application has been filed by the petitioners to release the vehicles and hence, he has nothing to do for releasing the vehicles.
10. Considering the provisions of Section 6 of the Act, only the authority has to take a call for confiscation or further proceedings, but in absence of any action on the part of the competent authority, this Court is left with no other option, but to exercise the jurisdiction Page 3 of 7 Downloaded on : Mon May 06 20:49:31 IST 2024 NEUTRAL CITATION R/SCR.A/3062/2024 ORDER DATED: 02/05/2024 undefined releasing the muddamal vehicles.
11. A Division Bench of this Court in Letters Patent Appeal No.1168 of 2012 decided on 11 th October 2012 had the occasion to consider almost an identical issue with regard to release of the vehicle. In the said case, the vehicles were seized in connection with the aforementioned offence. 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 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 Page 4 of 7 Downloaded on : Mon May 06 20:49:31 IST 2024 NEUTRAL CITATION R/SCR.A/3062/2024 ORDER DATED: 02/05/2024 undefined 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 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. "Page 5 of 7 Downloaded on : Mon May 06 20:49:31 IST 2024
NEUTRAL CITATION R/SCR.A/3062/2024 ORDER DATED: 02/05/2024 undefined
12. Considering the fact that the vehicle in question is seized under the Essential Commodities Act and considering the report produced by learned APP, it appears that as per the reply given by the authority concerned, till date no any confiscation proceedings are initiated under the Essential Commemorate Act for seizure of the vehicles by any of the competent authority.
13. In view of the above, present petitions are allowed. The impugned orders are hereby quashed. The authority concerned is directed to release the vehicles of the petitioners i.e. Mahindra Alpha Passenger bearing Registration No. GJ-22-V-0140 and Mahindra Bolero Pick up bearing Registration No. GJ-05-BZ- 1856 on furnishing an undertaking of the nature as refer to hereinafter:
(i) The petitioners shall execute a bond within a period of one week from today, for the production of the vehicles so released, if and when required before the Court having jurisdiction to try the offence on account of such seizure.
(ii) The petitioners shall not indulge in any such illegal activity.
(iii) The petitioners shall not sell, transfer or alienate the vehicles in any manner, pending the criminal case and shall produce the vehicles before the Investigating Officer as and when call upon to produce the same for the purpose of further proceedings.
14. The petitioners are 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 vehicles and hand over the same to the petitioner.
Page 6 of 7 Downloaded on : Mon May 06 20:49:31 IST 2024NEUTRAL CITATION R/SCR.A/3062/2024 ORDER DATED: 02/05/2024 undefined
15. If the vehicles as on today are in custody of the other respondent, then in view of the order passed today, the same shall be handed over to the petitioners, subject to the above terms.
16. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) SUCHIT Page 7 of 7 Downloaded on : Mon May 06 20:49:31 IST 2024