Possession alone is insufficient for reclaiming seized valuables without proof of ownership, emphasizing evidential necessity in proceedings related to muddamal.

ORAL ORDER

1) By way of present petition the petitioner has sought following main relief:-

“(A) To issue a writ of mandamus or any other writ, order or direction directing to quash and set aside an order dated 01/03/2024 passed below Exhibit-10 in Criminal Case No.124 of 2015 by the Hon’ble Court of Additional Chief Metropolitan Magistrate, Court No.11 at Ahmedabad at Annexure-A to this petition.

(B) To issue a writ of mandamus or any other writ, order or direction directing to release the articles and other documents including cash of the petitioner seized by Panchnama dated 26/02/2015 at Annexure-C by the Investigating Officer, SOG Crime Branch, Ahmedabad in connection with I-CR No.15 of 2015 registered with SOG Crime Branch, Ahmedabad on such terms and conditions as may be deemed fit and proper to this Hon’ble Court in the interest of justice.”

2) The learned Advocate Mr. C. K. Pandya for the petitioner has submitted that the present petitioner is an accused and from his possession the alleged muddamal articles were seized on 26.02.2015. The said muddamal is not a part of commission of the crime and not the subject matter of the crime. The said muddamal was seized and panchnama was drawn on 26.02.2015. After 10 years none of the prosecution witnesses have been examined. Hence, he has requested to release the muddamal 60 kilograms gold recovered from his possession in view of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in AIR 2003 SC 638 as the same is also not a part of investigation and it was personal belongings of the present petitioner. The said muddamal has nothing to do with the trial. The Director of Revenue Intelligence, Ahmedabad had preferred Criminal Miscellaneous Application No.170 of 2015 for getting the custody of the gold bars seized by the Investigating Agency which came to be dismissed. Thereafter, the Criminal Miscellaneous Application No.77 of 2016 came to be filed which was rejected on 21.07.2018 on the ground that charge is framed and the muddamal is required for the trial. Thereafter, another application was preferred for getting the muddamal which came to be dismissed on 01.03.2024. Hence, he has filed the present application. The earlier order of rejection was not assailed by way of filing revision application or appeal before any Appellate Forum. The commencement of the trial will take time and the said muddamal is not the part of crime but personal belongings of the petitioner and custom has nothing to do with the said gold and muddamal is already separated from the muddamal involved in the alleged commission of the offence. Hence, he has requested to allow the present application and direct to hand over the muddamal to the present petitioner.

3) Learned APP for respondent – State of Gujarat has opposed the present petition on the ground that the earlier application came to be dismissed in the year 2015 and the said order was not assailed by way of filing revision application though the order was revisiable and after a long time another application was filed before the learned Additional Chief Metropolitan Magistrate which came to be dismissed on 01.03.2024, on the ground that earlier application was dismissed and there is no change in circumstances and even it was not challenged before the appellate jurisdiction and straightway the petitioner approached this Court under Article 226 of the Constitution of India. Hence, he has requested to dismiss the present application. He has further submitted that learned Additional Chief Metropolitan Magistrate has passed appropriate order as earlier order of rejection in Criminal Miscellaneous Application No.77 of 2016 was not challenged