Important Point :
In the event of original of property not produced in evidence, photograph could be used as secondary evidence during course of evidence.

1. By this application under Article 227 of the Constitution of India, the applicant – original accused calls in question the legality and validity of the order dated 15.10.2015 passed by the Additional Sessions Judge, Court No.21, Ahmedabad (City) in the Criminal Revision Application No.426 of 2014, by which, the learned Additional Sessions Judge rejected the Revision Application filed by the applicant herein, thereby affirming the order dated 23.07.2014 passed by the Additional Chief Judicial Magistrate, Court No.11, Ahmedabad below Exhibit: 49 in the Criminal Case No.217 of 2012 rejecting the application filed by the applicant herein under Section 451 of the Code of Criminal Procedure, 1973 for release of a car seized by the Police in connection with an offence.

2. The facts giving rise to this application may be summarized as under:

2.1 One First Information Report came to be registered at the D.C.B. Police Station, Ahmedabad vide C.R. No. I-11 of 2011 against the applicant herein and his brother for the offence punishable under Sections 406, 409, 420 and 120B of the Indian Penal Code. Prima facie, it appears to be the case of the prosecution that the applicant herein floated a scheme, and thereby, lured innocent people to invest in the same with false representation that the investors would receive twice the amount invested by them in the scheme. It is the case of the prosecution that many innocent people were cheated in this manner and about Rs.4 to 5 Crore was collected in the said scheme. It is also the case of the prosecution that the scheme was nothing, but an apparent cheating and the entire amount came to be misappropriated by the accused persons.

2.2 It is the case of the prosecution that the accused persons pocketed a huge amount deposited by the victims and embezzled the said amount by committing criminal breach of trust. Out of the amount collected and embezzled by committing the criminal breach of trust, the applicant herein purchased a BMW car bearing registration No.GJ1KH7875.

2.3 It appears that the investigation culminated in filing of the chargesheet, and filing of the chargesheet culminated in the Criminal Case No.217 of 2012 pending in the Court of the Additional Chief Metropolitan Magistrate, Court No.11, Ahmedabad.

2.4 It appears that since 2011, the applicant herein and the co-accused are in the judicial custody.

2.5 It also appears that in the course of the investigation, the BMW car referred to above was seized, as having been found under the circumstances which created suspicion of the commission of the offence. In short, the car was seized, as according to the Investigating Agency, the same was purchased from the money alleged to have been misappropriated by the applicant herein.

2.6 The car which was seized is in possession and custody of the Police. The same has been kept at the Police Station. It has been almost four years that the custody of the car is with the Police. In such circumstances, the applicant herein thought fit to prefer an application Exhibit: 49 under Section 451 of the Code of Criminal Procedure, 1973 for release of the same subject to certain the terms and conditions substantially on the ground that keeping the car at the Police Station would reduce the car to a scrap.

2.7 The learned Additional Chief Metropolitan Magistrate thought fit to reject the application substantially on the ground that although the applicant is the registered owner of the vehicle in question, yet he being in the judicial custody, it would not be proper to handover the custody to his father who holds the power of Attorney of his son.

2.8 Being dissatisfied with the order passed by the learned Additional Chief Metropolitan Magistrate, the applicant herein preferred the Criminal Revision Application No.426 of 2014 in the City Civil and Sessions Court at Ahmedabad. The Revision Application was also ordered to be rejected mainly on two grounds : (i) that it would not be proper to handover the custody of