Final Order 1

Order Details: Order Below EX 1
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
Notice No. 55/N/2020.
C.R. No. 1/2020.
Excise 'O' Division
Zakir Mohd. Abdul Abbas Shaikh … Applicant
V/s.
Sr. Inspector of Police,
(Excise 'O' Division) ...Respondent.
ORDER BELOW APPLICATION FOR RETURN OF PROPERTY
1. This is an application vide section 451 of Cr.P.C. for return
of seized Autorickshaw bearing No. MH02DU9075.
2. Perused application, say of excise department. Heard.
3. Applicant sought custody of said rickshaw being in
requirement thereof, claiming that he is registered owner of the said
vehicle. He is in urgent need of the autorickshaw and ready to abide by
any conditions imposed.
4. Perused affidavit of the applicant. As per Section 98 of the
Bombay Prohibition Act, this autorickshaw is liable for confiscation. As
per section 99 of the said Act other than intoxicants, hemp mhowra
flowers or molasses anything liable for confiscation can be returned to
the bonafide owners, if such owner pay fine instead of confiscation. The
vehicle therefore can be returned presuming that the applicant is
bonafide owner. Time is required for trial. If the vehicle kept in a
custody, same will be junked and become worthless.
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5. The excise department opposed the application claiming
that property is liable for confiscation. There is possibility of repetition of
crime by use of same vehicle. It affects revenue of Government.
Investigation is pending. The excise department also relied upon the
decision of Hon'ble Bombay High Court, Bench at Aurangabad in
Cr.Rev.appl.670/2002 & 1096/2002 to apply the guidelines for release
of vehicle.
6. Excise department has not produced the copies of said
decision. However, it is argued that the guidelines are regarding
appropriate conditions including bank guarantee to be imposed. In case
of Jilani Nasruddin Gore Vs. State of Maharashtra 2005 (3) Mah.LJ
1058; the Hon'ble Bombay High court considered the Precedents on law
of return of property and imposing bank guarantee and confirmed the
order of bank guarantee of Rs.1 Lacs i.e. around 50% of the value of
vehicle seized. As such, if the vehicle is to be released the condition of
bank guarantee is to be imposed upto 50% value of the vehicle to secure
the vehicle for confiscation proceedings, if required.
7. The applicant alongwith his affidavit filed on record copy of
insurance certificate, copy of permit, copy of registration of vehicle etc.
8. Perusal of documents, the applicant being primafacie shown
to be a bonafide owner entitled for interim custody. The value of the
seized autorickshaw as per the insurance certificate is Rs.85,000/.
Therefore, the bank guarantee of Rs.42,500/ has to be imposed
alongwith indemnity bond of Rs.42,500/. In view of this, the
application is allowed in following terms :
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ORDER
1 The seized Autorickshaw bearing No. MH02DU9075
be released in favor of applicant viz. Zakir Mohd.
Abdul Abbas Shaikh on his furnishing indemnity bond
of र. 42,500/ and bank guarantee of Rs. 42,500/.
2 He shall produce the said autorickshaw as and when
required by the Court.
3 Investigation Officer shall obtain photographs of seized
vehicle from all angles for its proper identification in
future and prepared panchanama, which shall be the
part of chargesheet. The photographs and
panchanama shall be countersigned by the
applicant/accused.
4 Investigating officer to verify engine and chasis number
before release of the vehicle.
5 Copy to the concerned Excise Division for compliance
of this order.
Date : 29.01.2020
ssl.
(Sudhir N. Shinde)
Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
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