Judgment:
ORDER
A.S. Naidu, J.
1. Whether the owner of a vehicle seized by police in course of investigation is entitled to interim release of the same, and if so, under what circumstances is the question which needs determination in the present case.
2. The petitioner claims to be the owner of an Ambassador car bearing registration number OR-02-M-7954. The said vehicle was engaged as a Taxi for being used on hire. One Basudev Ray was the driver of the vehicle. On 25-4-2002 at about 3 p.m. when the Vehicle was parked at Paradip Taxi Stand awaiting customers, some persons approached the driver for hiring the same. It was disclosed by them that they wanted to go to Puri to attend a marriage ceremony. Thereafter the vehicle was seized on 27-4-2002 by the OIC of Himapara P. S. in connection with Himapara P. S. case No. 69 of 2002 for alleged commission of offences under Sections 399 and 402, IPC, which was subsequently converted to G. R. case No. 277/02 of the court of the J.M.F.C., Nimapara. Coming to know about seizure of his vehicle, the petitioner went to Nimapara Police Station, produced the documents in support of his ownership of the vehicle and requested to release the vehicle in his Zima. The O.I.C. of the police station however did not accede to his request. The petitioner was therefore constrained to file a petition under Section 457, Cr. P.C. before the J.M.F.C., Nimapara in the aforesaid G.R. case. It was contended by the petitioner that he being an unemployed youth, had purchased, the vehicle for the purpose of running it as a Taxi under the hypothecation of the Indian Overseas Bank, Paradip Branch and the vehicle being his only source of income and as he had absolutely no knowledge about the crime for which the vehicle was seized, the same should be released in his favour. He also undertook to maintain the vehicle in proper condition and produce the same as and when required in course of trial of the case in which the vehicle was allegedlyinvolved. The J.M.F.C., it is alleged, by order dated 9-5-2002 without properly appreciating the submission of the petitioner, rejected his prayer on the ground that investigation was still in progress and as the case in which the vehicle was involved was exclusively triable by a court of session and he had no power to release the vehicle.
3. The said order of rejection was challenged by the petitioner before this Court is Cri. Revision no. 461 of 2002. By order dated 30-7-2002 this Court disposed of the said Revision giving liberty to the petitioner to file a further petition under Section 457, Cr. P.C. before the learned Magistrate and directing the learned Magistrate that if such a petition was filed, the same would be disposed of in accordance with law and observed that non-completion of investigation should not be the sole reason to reject the application. In consonance with the said order, the petitioner once again filed a petition before the J.M.F.C. under Section 457, Cr. P.C. enclosing the relevant documents in support of his ownership of the vehicle and praying for release of the same. The said petition again having been dismissed by the J.M.F.C. by his order dated 1-10-2002 the present Criminal Revision has been filed.
4. The J.M.F.C. by the impugned order once again declined to release the vehicle under Section 457, Cr. P.C. and rejected the petition. Learned counsel for the petitioner relying upon a decision of this Court in Saroj Kumar Singh v. State of Orissa, (2002) 22 OCR 622, which reiterated the ratio of the decisions in the cases of Abhimanyu Sahoo v. State of Orissa (1998) 15 OCR 109 : (1998 Cri LJ 4513) and Gouri Shankar Sabat v. State of Orissa, (1998) 14 OCR 583 : (1999 Cri LJ 1779) submitted that as the petitioner was no way connected with the crime and the offence alleged being under Sections 399 and 402, IPC where there is no chance of confiscation of the seized vehicle which is not a part of the stolen property and further the vehicle being kept in open space at the police station subjected to vagaries of nature and is being damaged day by day, the vehicle should be released in the Zima of the petitioner. It was also contended that as the condition of the vehicle was likely to deteriorate, the vehicle should be released in favour of the person who being the owner is entitled to its possession on his furnishing adequate property security with certain conditions, violation, of which would amount to contempt of Court.
5. The power of the Court to deal with a seized article was examined in extenso by the Supreme Court in a recent case in Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638. For better appreciation, the observations made by the Supreme Court are quoted hereinbelow :--
'The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, It ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is sought to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice.'
6. In the light of the aforesaid decision of the Supreme Court in my view, the power under Section 451, Cr. P.C. should be exercised expeditiously and judicious during inquiry or trial keeping in mind various purposes, namely :--
(1) the owner of the article would not suffer because of its remaining unused or by its misappropriation;
(2) the court or police would not be required to keep the article in safe custody; and
(3) if proper Zimanama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence should also be recorded describing the nature of the property in detail.
The same view was also expressed by the Supreme Court in an earlier case in Ashok Kumar v. State of Bihar, (2000) 8 JT (SC) 54: (2001 AIR SCW 2314) and in the case of Dasavva Kom Dyamangouda Patil v. State of Mysore, AIR 1977 SC 1749 : (1977 Cri LJ 1141).
7. Admittedly the Ambassador car had been allegedly used for the purpose of commission of offence. Whether the offence was committed with the knowledge of the petitioner or not is a question of fact which has to be determined in course of trial of the G. R. case. But then, the vehicle which has been seized by police is lying in open place at the police station where no one takes care of it. Its condition will deterioration and at the end of the trial if an order relating to release of the vehicle would be passed, the same would not be beneficial to the party. Thus, what is required during pendency of the trial, to make adequate arrangement so as to maintain the seized vehicle in proper condition and ensure its production, if necessary, during the trial as and when required.
8. Taking into consideration the aforesaid facts and circumstances and in the interest of the parties. I set aside the impugned order and direct that the J.M.F.C. shall examine the documents produced by the petitioner and if he will be satisfied that the petitioner is the actual owner of the car, he will release the same in favour of the petitioner on the latter executing a proper Zimanama and furnishing a cash security of Rs. 25,000.00 (twenty five thousand) and property security to a tune of Rs. 50,000.00 (fifty thousand) to the satisfaction of the J.M.F.C. with condition that the petitioner shall not use or permit the vehicle to be used for any illegal purpose, or in any manner which is likely to reduce the value of the vehicle , and shall keep the vehicle in good running condition and produce the same before the court as and when required. Before release of the vehicle in favour of the petitioner, three coloured photographs of the vehicle of cabinet size taken from different angles of the vehicle clearly displaying the registration number and other particulars of the vehicles shall be kept on record. The expenses for the photographs shall be borne by the petitioner.
The Criminal Revision is accordingly disposed of.