Mohammedjuned Bachumiya Kazi vs State Of Gujarat & 1 Other(s)

Gita Gopi, J

Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent-State. With the consent of learned advocates on both the sides, the matter is heard today finally.

This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking the relief to release the muddamal vehicle (two wheeler) having Chassis No.ME1RG4425H0035975, which was seized in connection with the offence punishable under Sections 177, 181(3) and 207 of the Motor Vehicles Act.

Learned advocate for the petitioner submitted that the petitioner is the owner of the vehicle in question, which was detained in connection with the complaint in question. It was submitted that on 16.05.2019, the vehicle was detained, as the petitioner was not wearing helmet while driving the motor-cycle and the vehicle also did not have any registration number. In so far as, the fine is concerned, it is stated by learned advocate for the petitioner that the same has already been paid. It was accordingly urged that the vehicle in question may accordingly be released.

3.1 Learned advocate for the petitioner submitted that the muddamal vehicle has been detained by the investigating officer and that if the interim custody of the vehicle is not given, serious prejudice would be caused to the petitioner as the muddamal vehicle would get substantially damaged by the time the trial gets concluded and probably, by that time, the value of the muddamal vehicle may also become 'Nil' as the vehicle is lying under the open sky in different climatic conditions. It was, accordingly, urged that this Court may direct release of the muddamal vehicle in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India on suitable terms and conditions.

3.2 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 ordered release of muddamal vehicle seized under the provisions of the Act while lamenting the scenario of a number of vehicles having been kept unattended and becoming scrap within the police station premises or at any other designated places.

Learned Additional Public Prosecutor appearing for the respondent-State vehemently contended that the muddamal vehicle was detained as the petitioner was found guilty of the alleged offence. He, therefore, prays that no discretion may be exercised in favour of the petitioner.

Heard learned advocates on both the sides and perused the documents on record. Vide document at Annexure-B, the petitioner has produced the fine receipt paid on 10.06.2020 to Gujarat Motor Vehicles Department for the challan issued on 15.05.2019 with vehicle order. It is contended that still however the vehicle is not physically released despite the requisite fine amount has also been paid. Hence, considering the facts of the case, it would be beneficial to refer to the decision rendered by the Apex Court in Sunderbhai Ambalal Desai's case (supra), the relevant portion of which reads thus;

"15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

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 application for return of such vehicles."

Considering the factual aspects of the case and the principle rendered in Sunderbhai Ambalal Desai's case (supra), this Court is of the considered opinion that the custody of the vehicle, if granted in favour of the applicant on stringent terms and conditions, no prejudice is likely to be caused to the prosecution.

In the result, the petition is allowed. The authority concerned is directed to release the vehicle of the petitioner being (two wheeler) having Chassis No.ME1RG4425H0035975 on the terms and conditions that the petitioner;

(i) shall furnish, by way of security, bond and solvent surety of the equivalent amount as mentioned in the seizure memo / panchnama;

(ii) shall file an Undertaking on oath before the trial Court that prior to alienation or transfer of the vehicle in any mode or manner, prior permission of the concerned trial Court shall be taken until the conclusion of trial;

(iii) shall also file an Undertaking on oath to produce the vehicle as and when directed by the trial Court;

(iv) in the event of any subsequent offence, the vehicle shall stand confiscated.

7.1 Before handing over the possession of the vehicle 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. If the Investigating Officer finds it necessary, videography / photography of the vehicle shall also be done and the expenses thereof shall be borne by the applicant.

7.2 It is clarified that this order shall be subject to the decision that shall be rendered by the Apex Court in the pending S.L.P. (Cri.) No. 886 of 2018.

7.3 Rule is made absolute, accordingly. Direct service is permitted. Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode. Learned advocate for the petitioner is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.