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Allahabad High Court · body

2020 DIGILAW 996 (ALL)

Mohammad Ashfaq v. State of U. P.

2020-07-07

ALI ZAMIN

body2020
JUDGMENT : 1. Heard learned counsel for the petitioner and learned A.G.A. for the State and perused the material available on record. 2. This petition under Article 227 of the Constitution of India has been filed by the petitioner for setting aside the impugned orders dated 30.04.2019 and 19.02.2019, passed by learned Session Judge, Meerut in Revision No.91 of 2019 and Additional C.J.M., Court No.3, Meerut, in Case Crime No.0555 of 2018, u/s 411, 414, 420, 467, 468, 471 IPC, P.S. Kithor, District Meerut, respectively, and release the vehicle being Truck No.U.P.57AT1208 of the petitioner seized in Case Crime No.0555 of 2018, u/s 411, 414, 420, 467, 468, 471 IPC, P.S. Kithor, District Meerut. 3. According to prosecution case, Truck No.U.P.57AT1208 was stolen and its engine number was tampered. It is also alleged that it was recovered from the side of a road in village Radhna in an unclaimed condition, regarding which, FIR Case Crime No.555 of 2019, u/s 411, 414, 420, 467, 468, 471 IPC has been registered at police station Kithor, District Meerut. 4. Learned counsel for the petitioner submits that the petitioner is the owner of Truck No.Truck No.U.P.57AT1208 and he had moved an application for release of the vehicle along with registration certificate but his application was rejected by Additional Chief Judicial Magistrate-III, Meerut on the ground that according to police report the vehicle was found unclaimed, regarding which, Case Crime No.0555 of 2019, u/s 411, 414, 420, 467, 471 IPC has been registered. After rejection of the release application he had filed Criminal Revision No.91 of 2019 (Mohammad Ashfaq vs. State of U.P) which too was rejected, considering that the said vehicle was recovered by the police on 30th September, 2018 from the side of a road in an unclaimed condition and being checked from the record of the Road Tax Office, registration number, chassis number and engine number were found tampered. Revisionist did not file any report for disappearance of the vehicle and after completion of investigation, charge-sheet has been filed in the Court. The said vehicle is a case property and case property will be produced before the Court at the time of evidence. Revisional court has opined that the vehicle cannot be released in favour of the revisionist. Revisionist did not file any report for disappearance of the vehicle and after completion of investigation, charge-sheet has been filed in the Court. The said vehicle is a case property and case property will be produced before the Court at the time of evidence. Revisional court has opined that the vehicle cannot be released in favour of the revisionist. He also submits that in the FIR lodged by the police it has been mentioned that engine number is illegible and its chassis number is MAT466488D5C56890 which tallies with the chassis number mentioned in the registration certificate. He further submits that engine number and chassis number are verified by the registering authority at the time of registration. Lastly, he submits that in the intervening night of 29/30-9-2018, S.I. Shiv Dutt illegally had taken into custody the truck of the petitioner while parked on the side of road. Petitioner made a request to release the same as being registered owner of the vehicle and he also showed relevant papers then police made an illegal demand for release of the vehicle. On not conceding the illegal demand by stating that he will get released the vehicle from the court then police officer became annoyed, inimical and on his direction, the other police officer and constables destroyed and manipulated engine number of the petitioner's vehicle. 5. Per contra, learned A.G.A. has opposed the prayer and submits that in the order passed by Additional Chief Judicial Magistrate-III, Meerut, the report of Forensic Science has been considered in which it is mentioned that in addition to engine number and chassis number, other chassis number is visible, therefore, proper order has been passed and petitioner is not entitled for release of the said vehicle in his favour. 6. For deciding the instant case, it will be apt to refer the case of Sundarbhai Ambalal Desai v. State of Gujarat 2002(10) SCC 283: 2003 (46) ACC 223, in which, paras 18 and 21 of the judgment, Hon'ble Supreme Court has held as under :- "18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. 21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly." 7. Considering the submission of learned counsel the parties as well as the order passed by Additional Chief Judicial Magistrate-III, Meerut and learned Revisional Court's order, one thing is clear that no any other person has claimed the vehicle except the petitioner. In the FIR, chassis number of the vehicle has been mentioned which also tallies with the chassis number mentioned in the registration certificate. After registration of the FIR, expert opinion about the chassis number and engine number was obtained, in which report had been submitted to the aspect that apart from chassis number, other chassis number is also visible. If it was so as the expert report has been submitted then other chassis number also should have been disclosed in the FIR. 8. After registration of the FIR, expert opinion about the chassis number and engine number was obtained, in which report had been submitted to the aspect that apart from chassis number, other chassis number is also visible. If it was so as the expert report has been submitted then other chassis number also should have been disclosed in the FIR. 8. Both the courts below have not considered that chassis number mentioned in the FIR tallies with chassis number mentioned in registration certificate as well as both the courts below also have not considered that no fruitful purpose will be served if the vehicle is kept at the police station. Law laid down by Hon'ble Supreme Court in Sundarbhai Ambalal Desai v. State of Gujrat (supra) has a binding effect on both the courts below but both the courts below also have not considered the law laid-down by the Hon'ble Supreme Court in the above referred case. 9. In view of the above, the impugned orders are not proper, hence, not sustainable, consequently liable to set aside. Accordingly, the petition is allowed and the order dated 30.4.2019, passed by learned Sessions Judge, Meerut and order dated 19.02.2019, passed by A.C.J.M., Court No.3, Meerut, in Case Crime No.0555 of 2018, u/s 411, 414, 420, 467, 468, 471 IPC, P.S. Kithor, District Meerut, are hereby set aside. 10. Learned trial court is directed to release the said vehicle in favour of the petitioner on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned with the condition that whenever it will be required the same shall be produced before the court. 11. With the aforesaid direction, this petition is, finally, disposed of. 12. A copy of this order be transmitted to the lower court for compliance.