Point of Law: Confiscation of Vehicle – Release of - With regard to valuable articles, such as golden or sliver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over.

ORDER :

1. With the consent of learned advocates on both the sides, the matter is heard today finally.

2. This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking relief to release the muddamal cash of Rs.26,660/-, which was seized pursuant to the physical search of the petitioner and also prays to quash and set aside the order dated 03.12.2018 passed by 5th Additional Sessions Judge, Surat in Criminal Revision Application No.276/2018 confirming the order dated 28.08.2018 passed by 19th Additional Judicial Magistrate, First Class, Surat in Muddamal Application No.138 of 2018, rejecting the application of the petitioner for interim custody of the said cash.

3. It is stated that the petitioner was arrested by the Katargaam Police Station in connection with C.R. No.III-353/2018 under section 65(a)(e), 81, 98, 99, 116(c) of the Prohibition Act, dated 27.07.2018, and at that time the police searched and seized Rs.26,660/- from the possession of the petitioner. After release on bail, the petitioner approached the Court of Judicial Magistrate, Surat for releasing of the cash amount of Rs.26,660/-, which was dismissed by the learned Judicial Magistrate, observing that the petitioner was unable to produce any evidence in regard to cash, which was found from his possession. Being aggrieved by the same, the petitioner preferred Criminal Revision Application No.276/2018 before the 5th Additional Session Judge, Surat, which came to be dismissed by confirming the order passed by the learned Judicial Magistrate.

4. Mr. Bhavik P.Shah, learned advocate for the petitioner submitted that the seized amount of Rs.26,660/- was for the purpose of the tuition fees of her younger sister and for the rent of his house. In support of his submission, Mr. Shah, drew attention of the Court to the additional affidavit on record filed by Amankumar Vijaybhai, uncle of the present petitioner, who has affirmed that the said money was given by him in cash for tuition fees for her niece and for deposit of the rent of the house, on the promise to return back the same within a short time. It was, accordingly, urged that this Court may direct release of the muddamal cash in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India.

5. The attention of the Court was invited to the judgment of the Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638, wherein the Apex Court in regard to the valuable articles and currency notes, held that no useful purpose would be served to keep such articles in police custody for years till the trial is over and in such cases, Magistrate should pass appropriate orders as contemplated under Section 451 of the Cr.P.C., at the earliest.

6. Learned Additional Public Prosecutor appearing for the respondent - State vehemently contended that the muddamal cash of Rs.26,660/- was seized from the possession of the petitioner pursuant to physical search, who was caught with liquor by the police. Learned APP submits that the petitioner has failed to show the source of cash found from his possession. It was, however, urged that the powers of this Court under Article 226 of the Constitution to order release of the muddamal cash can be exercised at any time whenever the Court deems it appropriate, still however it was urged that the present petition may not be entertained.

7. Heard learned advocates on both the sides and perused the documents on record. Considering the facts of the case, it would be beneficial to refer to the decision rendered by the Apex Court in Sunderbhai Ambalal Desai’s case (supra), the relevant portion of which reads thus;

“5. Section 451clearly empowers the Court to pass appropriate orders with regard to such property, such as-

(1) for the proper custody pending conclusion of the inquiry or trial;

(2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary;

(3) if the propert