Final Order 1

Order Details: Order Below EX 1
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
Notice No. 772/N/2020.
C.R. No. 209/2020.
Excise 'FSII' Division
CNR No.MHMM180039542020
Mohan Jivan Chouhan … Applicant
V/s.
Sr. Inspector of Police,
(Excise 'FSII' 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 Honda Activa motorcycle bearing registration No. MH02EM
2105 and OPPO A5 mobile phone.
2. Perused application, say of excise department. Heard.
3. Applicant sought custody of said motorcycle and mobile
phone being in requirement thereof, claiming that He is rightful owner
of the said vehicle & mobile phone. He is in urgent need of the vehicle &
mobile phone 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.
-- 1 of 3 --
2
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. The
applicant/accused used alleged mobile in the commission of offence.
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 or 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 R.C. Book, insurance certificate, Aadhar card, purchase
invoice of mobile phone etc.
8. Perusal of documents, the applicant being primafacie shown
to be a bonafide owner, entitled for interim custody of vehicle. The
vehicle is of the year 2017. The value of the seized motorcycle is
approximately Rs.50,000/. Therefore, the bank guarantee of
Rs.20,000/ has to be imposed alongwith indemnity bond of
Rs.30,000/.
9. The disputed mobile has been used for chat application for
making order/supply of contrabanned liquor. Thus, the mobile phone in
its complete form has to be preserved for evidence. Granting application
would certainly tamper the material evidence. Thus, the
-- 2 of 3 --
applicant/accused is not entitled for interim custody of mobile phone
unless evidence is recorded after hearing. In view of this, the application
is allowed in following terms :
ORDER
1 Application partly allowed.
2 The seized Honda Activa motorcycle bearing registration
No. MH02EM2105 be released in favor of applicant viz.
Mohan Jivan Chouhan on his furnishing indemnity bond
of र. 30,000/ and bank guarantee of Rs. 20,000/.
3 He shall produce the said vehicle as and when required
by the Court.
4 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.
5 Investigating officer/Excise Officer to verify engine and
chasis number before release of the vehicle and mobile
phone be preserved for purpose of evidence.
6 Copy to the concerned Excise Division for compliance of
this order.
Date : 06.01.2021
ssl.
(Sudhir N. Shinde)
Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
-- 3 of 3 --