1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1285 OF 2010 Sameer Ab. Rashid Bagwan ...Petitioner Vs. The State of Maharashtra ...Respondent ----- Mr. Ujwal R. Agandsurve for Petitioner Mr.A.S. Shitole -APP for State ----- CORAM: V.M. KANADE J. DATED: 25TH JUNE, 2010 P.C. 1. Heard. 2. Rule. 3. By consent of the parties, the petition is taken up for hearing forthwith. 4. The Petitioner is challenging the order dated 19.1.2010 passed by the Learned J.M.F.C., Solapur. By the said order, the Learned Magistrate was pleased to reject the criminal application filed by the Petitioner herein seeking interim custody of the vehicle, which was seized by the Investigating Officer. 2 5. An offence was registered by the Respondent vide C.R. No. 3029 of 2009 under sections 4 and 5 of the Bombay Prevention of Gambling Act vide C.R. No. 3029 of 2009. According to the Original Complainant, a four wheeler vehicle was seized by the Taluka Police Station, Solapur and it is alleged that the said vehicle was used for the purpose of gambling and certain gaming instruments were also seized from the said vehicle. 6. The Petitioner claimed to be the owner of the said vehicle. According to him, he purchased the vehicle on 12.11.2009. He produced the relevant record. He, however, could not produce the registration certificate since the vehicle was yet to be registered. The Learned Magistrate rejected the said application. While rejecting the said application, the learned Magistrate came to the conclusion that since the gambling was going on in the vehicle , the said vehicle was 'Instruments of gaming' within the meaning of section 3 of the said Act and, therefore, refused to release the said vehicle to the Petitioner. 7. Against the said order, a revision application was preferred by the Petitioner in the Sessions Court. The Sessions Court confirmed the order of the 3 Learned Magistrate and firstly held that the Petitioner had not given any satisfactory reason for his failure to get vehicle registered for a period of more than one month and secondly, it came to the conclusion that since the seized four wheeler vehicle was used for the purpose of gambling, there was every possibility that the said vehicle would be used for the same purpose. 8. In my view, the reasons given by the Learned Magistrate and the learned Sessions Court are contrary to the provisions of law. Section 3 of the said Act defines 'Instruments of gaming' which reads as under: “In this Act the expression “instruments of gaming” includes any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming the proceeds of any gaming, and any winnings or prizes in money or otherwise distributed or intended to be distributed in respect of any gaming.” Secondly, the learned Magistrate has committed a 4 clear error of law which is apparent on the face of record. Perusal of the aforesaid section clearly indicates that the place where gambling takes place cannot be construed to be an instrument of gaming. 9. So far as the Learned Sessions Court is concerned, in my view, if an application is filed for return of property under sections 451 or 452 of the Code of Criminal Procedure, the Court has to take into consideration firstly whether a power is vested in the Investigating Agency to promptly confiscate the said vehicle and secondly, to see whether prima facie it is established by the person seeking return of property that he is the owner of the said property and that no other person has made any claim in respect of the said property. 10. In the present case, admittedly no other person has claimed ownership of the vehicle. Keeping this vehicle in the police compound would not serve any useful purpose since the vehicle would remaine as it is and it would be of no use to anyone after sometime. A suitable bond should have been taken from the Petitioner herein for the purpose of ensuring that at the time of trial, the Petitioner will produce the vehicle for the purpose of identification. 5 11. In the present case, the Petitioner has produced the relevant documents to prima facie show that he is the owner of the vehicle. The Sessions Court has erred in drawing any adverse inference merely because the vehicle was not registered for more than a month. The issue registration of the said vehicle, in my view, therefore, is not germane while deciding the application for return of property particularly when no other person has claimed ownership of the said vehicle. 12. Under these circumstances, therefore, the impugned orders passed by the Trial Court and confirmed by the Sessions Court are set aside. 13. The Senior Inspector of Police, Taluka Police Station, Solapur is directed to return the vehicle viz. a four wheeler Scorpio bearing Chassis No. MH- ITA-2-HAN92 K23906, Engine No. HA94K 29812 Model 2009, manufacture of Mahindra & Mahindra Motor Company Ltd. The Petitioner shall give a bond to the learned Magistrate in a sum of Rs.50,000/- that he shall produce the vehicle at the time of trial or as and when called by the Learned Magistrate for the purpose of identification. The Petitioner shall also give an undertaking to the Trial Court that he shall not dispose of the vehicle or create any third party right. 6 14. Writ Petition is, accordingly, allowed in the aforesaid terms. (V.M. KANADE J.)