Final Order 1

Order Details: Order below Ex-1
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
36th COURT MUMBAI CENTRAL, MUMBAI.
C. C. NO. : 95/MISC/2023.
C. R. NO. : 960/2023
Railway Protection Force : Bandra Terminus .
Dasharath Shankar Pawar. …. Applicant.
V/s.
The Sr. Inspector of Police,
(Bandra Terminus Railway Protection Force, Mumbai). .... Respondent.
ORDER BELOW EXH. 1
This is an application moved by the applicant Mr. Dasharath
Shankar Pawar, R/o. Bandra, Mumbai, under Section 457 of The Code
of Criminal Procedure thereby seeking the interim custody of mobile
phone i.e. Oppo A5 in connection with C. R. No. 960/2023, registered
for the offence punishable under Section 143 of I.R.A.
2. Applicant request to release the property on the ground that,
he is in need of mobile urgently for his personal use. The applicant
undertakes that he will produce the said articles as and when required
by this Court and therefore, he requests to release its custody in his
favour. The applicant is ready and willing to abide by any terms and
condition imposes by this court.
3. The Ld. Sr. P.P. and E.O. filed their say and objected the
application.
-- 1 of 4 --
~2~
4. Heard.
5. Under section 457 of the Code of Criminal Procedure only
the entitlement of possession of seized article has to be considered by
the Magistrate. It is the contention of the present applicant that, he is
the registered owner of the seized property. To substantiate his
contention he has produced on the record the Copy of purchase bill of
said article, copy of his Aadhar Card. These documents shows his lawful
entitlement over the property. As per the law, the copy of purchase bill
is the valid proof of title of the said article. As per the said purchase bill
the applicant is the owner of said article.
6. In the case titled Sunderbhai Desai V/s. State of Gujrat
A.I.R 2003 SC.638, the Hon'ble Apex Court has held that, once the
ownership of the applicant over article is ascertained, the power under
Section 451 of the Code of Criminal Procedure should be exercised by
the Magistrate expeditiously and judiciously so that the owner of the
article would not suffer because of its remaining unused or by its
misappropriation. It is further observed that, if the proper panchanama
before handing over possession of article is prepared, that can be used
in evidence instead of its production before the Court during the trial. It
is also held that, if necessary, evidence could also be recorded
describing the nature of the property in detail.
7. Therefore, so far as the question of requirement of the said
article for its identification purpose at the trial is concerned, in my view
if the photographs of the said article showing its clear registration
number are taken and the same are kept on the record, the said
-- 2 of 4 --
~3~
photographs may be used at the trial to prove the identity of the said
article and there is no need of its actual production before the Court.
Furthermore, as observed by the Hon'ble Supreme Court in the case
supra the identity of the seized article can be also proved by the witness
by giving its detailed description in his evidence. Therefore, withholding
the custody of said article for the reason that, the same would be
required for its identification purpose at the trial would be unjustifiable
ground at law.
8. In view of the above, the application therefore needs to be
allowed. Hence, the order :
ORDER
1. The custody of seized muddemal i.e. OPPO A5 Mobile
phone, seized by Bandra Terminus Railway Protection
Force, Mumbai, in connection with C.R No. 960/2023,
registered for the offence punishable under Section
143 of I.R.A. be given to the applicant on further
following conditions :
(a) Applicant shall execute indemnity bond of `15,000/
(Fifteen thousand).
(b) That he shall produce the said article, as and when
required by the police or the Court.
(c) That he shall not change the nature of the said article,
or alienate the same in any way without the permission
of Court.
-- 3 of 4 --
~4~
(d) That the E.O. shall take the photographs of the said
article, showing its clear registration number and
prepare the panchanama at the time of releasing the
said article.
(e) That the said photographs shall be countersigned by
the applicant.
(f) The E.O. shall prepared detailed panchnama of said
article before handing it over to the applicant. The E.O.
shall submit the copy of panchnama along with the
charge sheet.
(g) Inform the E.O. accordingly.
Date : 20/10/2023.
ASS
Sd/
(B. K. Gawande)
Metropolitan Magistrate,
36th Court, Mumbai Central, Mumbai.
-- 4 of 4 --