Final Order 1

Order Details: Order Below EX 1
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
Notice No. 895/N/2019.
C.R. No. 258/2019.
Excise 'FSI' Division
Ajay Ramkishan Vishwakarma … 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 autorickshaw bearing No. MH02EQ4657.
2. Perused application, say of excise department. Heard.
3. Applicant sought custody of said autorickshaw in
requirement thereof, claiming that he is bonafide owner. Said rickshaw
was given to accused on a daily wages and he was arrested while
carrying illicit liquor.
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. 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. 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 autorickshaw as per the insurance certificate is Rs.1,70,000/.
Therefore, the bank guarantee of Rs.85,000/ has to be imposed
alongwith indemnity bond of Rs.85,000/. In view of this, the
application is allowed in following terms :
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ORDER
1 The seized autorickshaw bearing No. MH02EQ4657 be
released in favor of applicant viz. Ajay Ramkishan
Vishwakarma on his furnishing indemnity bond of र.
85,000/ and bank guarantee of Rs. 85,000/.
2 He 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 : 23.12.2019
ssl.
(Sudhir N. Shinde)
Metropolitan Magistrate, 32nd Court,
Bandra, Mumbai.
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