Final Order 1

Order Details: Order Below EX 1
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
Notice No. 121/N/2020.
C.R. No. 19/2020.
Excise 'FSI' Division
Santosh Laxman Mungale … Applicant
V/s.
Sr. Inspector of Police,
(Excise 'FSI' 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 Activa two wheeler motorcycle bearing No. MH02DE2621.
2. Perused application, say of excise department. Heard.
3. Applicant sought custody of said motorcycle being in
requirement thereof, claiming that he is bonafide owner and offence has
been committed in this case without his knowledge. He has given his
motorcycle to his friend.
4. Perused affidavit of the applicant. As per Section 98 of the
Bombay Prohibition Act, this motorcycle 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 Nagpur in
Cr.Rev.appl.156/1993 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 the
receipt of copy of insurance certificate, copy of registration of vehicle,
tax invoice & Aadhar card.
8. Perusal of documents, the applicant being primafacie shown
to be a bonafide owner entitled for interim custody. The value of the
seized motorcycle was not mentioned in the insurance certificate. As per
the say of Excise department, the value of seized motorcycle is
Rs.17,000/ and same is not disputed by the applicant. Therefore, the
bank guarantee of Rs.8,500/ has to be imposed alongwith indemnity
bond of Rs.8,500/. In view of this, the application is allowed in
following terms :
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ORDER
1 The seized Activa two wheeler motorcycle bearing No.
MH02DE2621 be released in favor of applicant viz.
Santosh Laxman Mungale on his furnishing indemnity
bond of र. 8,500/ and bank guarantee of Rs. 8,500/.
2 He shall produce the said motorcycle 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 : 17.02.2020
ssl.
(Sudhir N. Shinde)
Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
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