Criminal Writ Petition No.224 of 2004

10th September, 2004

Petitioner Counsel: Shri. D. P. PALODKAR
Respondent Counsel: Shri. JAJOO

Cases Cited:
Sunderbhai Ambalal Desai Vs. State of Gujarat, 2003 ALL MR (Cri) 363 (S.C.)=(2002)10 SCC 283 [Para 9,11,13,14]
Basavva Kom Dnyamangouda Patil Vs. State of Mysore, (1977)4 SCC 358 [Para 11]

JUDGMENT

JUDGMENT :- The learned Counsel for the petitioner seeks deletion of respondents nos.2, 3 and 4. Permission granted.

2. Rule. The learned A.P.P. waives service for the State.

3. Rule is made returnable forthwith by consent of the parties and taken up for hearing.

4. The petitioner is said to be the registered owner of the vehicle MH-24-C-998, tempo trax jeep, manufactured in the year, 1998. On 20th June, 2003, the Police of Police Station Devane (BK) seized the said vehicle in connection with Crime No.6061 of 2003 registered for offence under Section 66(b) of Bombay Prohibition Act. The vehicle is lying in the custody of the Police since then.

5. The petitioner filed an application bearing Misc. Application No.104/2003 before the learned J.M.F.C., Udgir wherein he stated that he is not concerned with the alleged offence and he was a transporter and he earns his livelihood out of transportation business through the said vehicle seized by the Police. The petitioner prayed for custody of the vehicle by filing the application dated 21.06.2003.

6. By an order dated 19.07.2003 passed below Exh.1 in M. A. No.104/2003, the J.M.F.C., Udgir rejected the application. It was observed in paragraph 3 of the order that the learned A.P.P. and the I. O. were called upon by the Court and they stated that they have no objection to release the vehicle in favour of the petitioner subject to certain conditions. It seems that there was no other claimant as owner of the said vehicle who approached the Court below claiming the custody of the vehicle. The learned Magistrate observed that the original documents were not placed on record to show the ownership of the vehicle and only xerox copies were placed on record.

7. The petitioner preferred Criminal Revision Application No.30/2003 to the Additional Sessions Court, Udgir which was rejected by the said Judge by order dated 01.09.2003.

8. The learned Counsel for the petitioner submits that both the Courts below erred in rejecting the applications filed by the petitioner for release of the vehicle. The learned A.P.P. in the trial Court for the state and the Investigating Officer have no objection to release the vehicle in favour of the petitioner as was observed by the J.M.F.C., Udgir in the order dated 19.07.2003. According to the learned Counsel, in the application he did not mention as to under which provision the same is filed either Section 451 or 457 of Cr. P. C. Still, the lower appellate Court observed that the application filed by the petitioner was under Section 451 of Cr. P. C. and the powers of the court can be exercised only if the application is filed under Section 457 of Cr. P. C. The vehicle was in the custody of the Police which was seized in connection with a crime and it was lying in the custody since last one year. As on today, according to the learned Counsel, the vehicle is already in bad condition.

9. The learned Counsel has placed reliance on a reported judgment of the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002)10 SCC 283 : 2003 ALL MR (Cri) 363 (S.C.), and submitted that broad principles behind grant of custody to its rightful owner has not been properly considered by the courts below and instead, much was discussed about the provisions of Sections 451 and 457 of Cr. P. C.

10. The learned A.P.P. Mr. Jajoo has submitted that the petitioner can still file relevant documents before the trial Court and establish his ownership though, it has been observed by the learned Magistrate that the State and I. O. have no objection for releasing the vehicle in favour of the petitioner. He was also of the opinion that in view of the law laid down by the Apex Court, the vehicle could not be kept for a longer time in the custody of the Police or the Court to avoid any further damage to the vehicle.

11. The Apex Court, in the case of Sunderbhai Desai (supra), has referred to observations made by the Apex Court in the case of Basavva Kom Dnyamangouda Patil Vs. State of Mysore reported in (1977)4 SCC 358 in paragraph 4 :

"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 inquiry 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."

12. The purpose behind exercise of powers u/s.451 and 457 of Cr. P. C. is to see that the vehicle is not kept unattended while lying in the court premises or police station so that it does not become junk day by day.

13. In the present case, the petitioner did not style his application under any of the sections namely, section 451 or 457 of Cr. P. C. In this view of the matter, it was necessary for the Courts below to consider the application on its own merits and exercise powers which are conferred on the courts by virtue of the provisions of sections 451 or 457 of Cr. P. C., as the case may be, in accordance with the law. Rejection of the application on the ground that it was filed u/s.451 of Cr. P. C. as the vehicle was not produced before the Criminal Court nor any charge-sheet was filed before the Criminal Court is an erroneous approach of the Courts below which is not sustainable in view of the observations made by the Apex Court in the case of Sunderbhai Desai (supra). The object behind grant of custody of the vehicle to its real and true owner is to be appreciated by exercising powers under the relevant provisions of the Code of Criminal Procedure.

14. In view of the aforesaid reasons, I am inclined to quash and set aside the impugned judgments and orders passed by the Courts below by remanding the matter for passing appropriate orders by the J.M.F.C., Udgir, in accordance with law and keeping in view the observations made by the Apex Court in the case of Sunderbhai Desai (supra). The learned Counsel for the petitioner undertakes to submit the relevant documents in connection with the ownership of the vehicle before the J.M.F.C., Udgir, at the earliest.

15. The petition, therefore, deserves to be allowed. The impugned judgments and orders dated 19.07.2003 in Misc. Application No.104/2003 and 01.09.2003 in Criminal Revision No.30 of 2003, passed by the J.M.F.C., Udgir and Addl. District Judge, Udgir, respectively, are quashed and set aside. The matter is remanded to the J.M.F.C., Udgir, accordingly.

The learned J.M.F.C., Udgir is directed to dispose of the Misc. Application No.104/2003 filed by the petitioner seeking custody of the vehicle, at the earliest and, in case, some time is likely to consume for disposal of the said application, necessary interim orders to be passed, in accordance with law.

Rule made absolute in the above terms.

Petition allowed.