The main legal point established in the judgment is the expeditious and judicious exercise of powers under Section 451, Cr.PC for the return of the article, and the interpretation that if the vehicle is not liable for confiscation, then the security cannot be demanded.

Fakhruddin, J.

1. Heard.

2. Counsel for the petitioner has filed this petition on the ground that while directing handing over the vehicle on Supurdnama, learned Chief Judicial Magistrate, Mahasamund, has directed to furnish security of Rs. 4 lakhs and bank guarantee of 1 lakh.

3. Learned Counsel for the applicant contended that the conditions imposed for return of vehicle are too stringent and onerous. It is further submitted that the direction to furnish the bank guarantee of Rs. 1 lakh is not at all justified. So far as handing over the vehicle on Supurdnama is concerned, reliance has been placed on a decision of the Andhra Pradesh High Court in case of Baligera Bheemudu v. State of Andhra Pradesh, reported in 1993(4) Crimes 1074, wherein it has been observed that:--

"If the vehicle is liable for confiscation, the condition can be imposed to furnish some security as in the event of conviction and order of confiscation, and in the event of the vehicle being alienated or transferred, the amount equivalent to that, furnished as security, can be realized. But, such is not the situation arising here. Even after conviction for the above offences when the vehicle is not liable for confiscation, the Judicial I Class Magistrate has grossly erred in imposing a condition of security by the petitioner and it is a case of total non-application of mind by the learned Magistrate. These proceedings are all penal in nature and disabling provisions have to be strictly construed, and when there is no power of confiscation even after conviction of accused and even after sentencing him to imprisonment or fine, there is no jurisdiction for the Criminal Court to impose any conditions to furnish security for the release of the case property pending trial. It is needless to mention that trial of the criminal offence will take considerable time and it is not desirable that the case property should be kept exposed to adverse seasonal conditions resulting in the loss of value of the vehicle and its efficacy."

4. The contention is that if the vehicle is not liable to the confiscated then the security cannot be demanded but if it is liable for confiscation then the conditions can be imposed to furnish security. It is contended that imposing the condition like the present one results in depriving of handing over the vehicle on Supurdnama to the applicant.

5. Counsel has further placed reliance on a decision of the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai v. State of Gujrat, reported in 2002 AIR SCW 5301. Paragraphs 7 and 15 to 17 of the judgment are relevant and quoted below:--

"7. In our view, the powers under Section 451, Cr.PC should be exercised expeditiously and judiciously. It would serve various purposes, namely:--

(1) Owner of the article would not suffer because of its remaining unused or by its misappropriation;

(2) Court or the police would not be required to keep the article in safe custody;

(3) If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

(4) This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

15. Learned Senior Counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to handover such vehicles to its owner or to the person from whom the said vehicles arc seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned Counsel appearing for the petitioners submitt