Final Order 1

Order Details: Order Below EX 1
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
Notice No. 513/N/2020.
C.R. No. 162/2020.
Excise 'FSI' Division
CNR NO.MHMM180027372020
Sunita Albert D'souza … 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 two wheeler motorcycle bearing No. MH02EM4071, Engine
No.JF39EU1182469, Chasis No. ME4JF399BHU126338.
2. Perused application, say of excise department. Heard.
3. Applicant sought custody of said motorcycle being in
requirement thereof, claiming that she is registered owner of the said
vehicle. She is in urgent need of the vehicle and ready to abide by any
conditions imposed.
4. Perused affidavit of the applicant. As per Section 98 of the
Bombay Prohibition Act, this vehicle 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. It is also submitted that the said vehicle is
essential to produce before the court for the purpose of evidence.
6. 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 her affidavit filed on record the
receipt of copy of insurance certificate & copy of registration of vehicle,
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 vehicle as per the insurance certificate is Rs.30,000/. Therefore,
the bank guarantee of Rs.15,000/ has to be imposed alongwith
indemnity bond of Rs.15,000/. In view of this, the application is
allowed in following terms :
ORDER
1 The seized two wheeler motorcycle bearing No. MH02
EM4071 be released in favor of applicant viz. Sunita
Albert D'souza on her furnishing indemnity bond of
र. 15,000/ and bank guarantee of Rs. 15,000/.
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2 She shall produce the said vehicle 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 : 15.09.2020
ssl.
(Sudhir N. Shinde)
Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
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