N. H. PATIL, J.

( 1 ) THE learned Counsel for the petitioner seeks deletion of respondents No. 2, 3 and 4. Permission granted.

( 2 ) RULE. The learned A. P. P, waives service for the State.

( 3 ) RULE is made returnable forthwith by consent of the parties and taken up for hearing.

( 4 ) THE petitioner is said to be the registered owner of the vehicle MH-24- c-998, tempo trax jeep, manufactured in the year, 1998. On 20th June, 2003, the police of Police Station Devane (BK) seized the said vehicle in connection with crime No. 6061 of 2003 registered for offence under section 66 (b) of Bombay prohibition Act. The vehicle is lying in the custody of the police since then.

( 5 ) THE petitioner filed an application bearing Misc. Application No. 104/2003 before the learned J. M. F. C. , Udgir wherein he stated that he is not concerned with the alleged offence and he was a transporter and he earns his livelihood out of transportation business through the said vehicle seized by the police. The petitioner prayed for custody of the vehicle by filing the application dated 21-6-2003.

( 6 ) BY an order dated 19-7-2003 passed below Exh. 1 in M. A. No. 104/2003, the J. M F. C. , Udgir rejected the application. It was observed in paragraph 3 of the order that the learned A. P. P. and the I. O. were called upon by the Court and they stated that they have no objection to release the vehicle in favour of the petitioner subject to certain conditions. It seems that there was no other claimant as owner of the said vehicle who approached the Court below claiming the custody of the vehicle. The learned Magistrate observed that the original documents were not placed on record to show the ownership of the vehicle and only Xerox copies were placed on record.

( 7 ) THE petitioner preferred Criminal Revision Application No. 30/2003 to the Additional Sessions Court, Udgir which was rejected by the said Judge by order dated 1-9-2003.

( 8 ) THE learned Counsel for the petitioner submits that both the Courts below erred in rejecting the applications filed by the petitioner for release of the vehicle. The learned A. P. P. in the trial Court for the State and the Investigating officer have no objection to release the vehicle in favour of the petitioner as was observed by the J. M. F. C. , Udgir in the order dated 19-7-2003. According to the learned Counsel, in the application he did not mention as to under which provision the same is filed either section 451 or 457 of Criminal Procedure Code. Still, the lower appellate Court observed that the application filed by the petitioner was under section 451 of Criminal Procedure Code and the powers of the court can be exercised only if the application is filed under section 457 of criminal Procedure Cods. The vehicle was in the custody of the police which was seized in connection with a crime and it was lying in the custody since last one year. As on today, according to the learned Counsel, the vehicle is already in bad condition.

( 9 ) THE learned Counsel has placed reliance on a reported judgment of the apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002)10 SCC 283, and submitted that broad principles behind grant of custody to its rightful owner has not been properly considered by the courts below and instead, much was discussed about the provisions ofsections 451 and 457 of Criminal Procedure Code.

( 10 ) THE learned A. P. P. Mr. Jajoo has submitted that the petitioner can still file relevant documents before the trial Court and establish his ownership though, it has been observed by the learned Magistrate that the State and I. O. have no objection for releasing the vehicle in favour of the petitioner. He was also of the opinion that in view of the law laid down by the Apex Court, the vehicle could not be kept for a longer time in the custody of the police or the Court to avoid any further damage to the vehicle.

( 11 ) THE Apex Court, in the case of Sunderbhai Desai (supra