Final Order 1

Order Details: Order Below EX 1
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
Notice No. 828/N/2019.
C.R. No. 273/2019.
Excise 'FSII' Division
Navinkumar Akhirbhai Nor … 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 Suzuki Access two wheeler motorcycle bearing No. MH02FD
4415 & Vivo7 mobile phone.
2. Perused application, say of excise department. Heard.
3. Applicant sought custody of said Suzuki Access two wheeler
motorcycle & Vivo7 mobile phone in requirement thereof, claiming that
he is bonafide owner and it was seized during his personal search.
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 mobile phone
contains details of chating showing order of illicit liquor and thus the
mobile chat is essential evidence to be preserved.
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 his affidavit filed on record the
receipt of copy of insurance certificate & copy of registration of vehicle.
8. Perusal of documents, the applicant being primafacie shown
to be a bonafide owner entitled for interim custody. The value of the
seized motorcycle as per the insurance certificate is Rs.58,541/.
Therefore, the bank guarantee of Rs.30,000/ has to be imposed
alongwith indemnity bond of Rs.30,000/. Mobile phone may also be
temporarily released in favor of the applicant, being entitled for the
same, by imposing certain conditions. In view of this, the application is
allowed in following terms :
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ORDER
1 The seized autorickshaw bearing No. MH02FD4415 be
released in favor of applicant viz. Navinkumar Akhirbhai
Nor on his furnishing indemnity bond of र. 30,000/ and
bank guarantee of Rs. 30,000/.
2 The seized Vivo7 mobile phone be released in favour of
applicant viz. Navinkumar Akhirbhai Nor on his
furnishing indemnity bond of र. 10,000/
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 Investigation Officer shall prepared panchanama & obtain
photographs of seized mobile from all angles for its proper
identification in future and also copy the contact numbers
or information, which are found suspected and obtained
the signature of the accused on the said panchanama.
6 Investigating officer to verify engine and chasis number
before release of the vehicle.
7 Copy to the concerned Excise Division for compliance of
this order.
Date : 16.12.2019
ssl.
(Sudhir N. Shinde)
Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
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