SCR.A/2439/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2439 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ====================================== == 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== == JAYESH BUDHALAL MEHTA Versus STATE OF GUJARAT & ANOTHER ====================================== == Appearance : MR ASHISH M DAGLI for the Petitioner MR MENGDEY ADDL. PUBLIC PROSECUTOR for Respondent No.1 MR VM PANCHOLI for Respondent No.2 MR PR ABICHANDANI for Respondent No.3 ====================================== == CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 09/01/2008 SCR.A/2439/2007 2/8 JUDGMENT ORAL JUDGMENT 1. Leave to join I.C.I.C.I. Bank Limited, through Mr. Atul Panchamiya, having its office at 11th Floor, Sakar I, Nehru Bridge Corner, Ashram Road, Ahmedabad, as party respondent No.3 in the present petition. Amendment to be carried out forthwith. 2. Rule. Mr. M.R. Mengdey, learned Additional Public Prosecutor waives service of notice on behalf of respondent No.1, State of Gujarat, Mr. V.M. Pancholi, learned advocate waives service of notice on behalf of respondent No.2 and Mr. P.R. Abichandani, learned advocate waives service of notice on behalf of respondent No.3. 3. By this petition, the petitioner has prayed for the following substantive relief: A. The Hon'ble Court may be pleased to admit this Special Criminal Application. B. The Hon'ble Court may be pleased to allow this Special Criminal Application by quashing and setting aside the judgment and order passed by the Ld. Chief Judicial Magistrate Court, Ahmedabad in Criminal Miscellaneous Application No.13 of 2006 decided on 21/12/2006 arising out of the complaint registered before the D.C.B. Police Station as CR No. I – 26 of 2005 and also be pleased to quash and set aside the judgment and order passed by the City Sessions Judge, Ahmedabad in Criminal Revision Application No.08 of 2007 decided on 07/12/2007 SCR.A/2439/2007 3/8 JUDGMENT and be pleased to allow the application as prayed for in the facts and circumstances of the present case. C. The Hon'ble Court may be pleased to allow this Special Criminal Application by issuing appropriate writ, order or direction to dispose of the goods Raido in open market other then Mehsana A.P.M.C. and the amount of the same may be deposited in the I.C.I.C.I. Bank subject to the final outcome of the case pending arising out of the complaint registered before the C.I.D. Crime Police Station as CR No.I – 26 of 2005 in the interest of justice. 4. The facts stated briefly are that the mustard seeds/Raido, which according to the petitioner had been purchased by him, were seized in connection with a complaint lodged before the C.I.D. Crime Police Station vide C.R. No. I – 26/05. The petitioner herein moved an application being Criminal Miscellaneous Application No.13 of 2006 before the learned Chief Metropolitan Magistrate, Ahmedabad under section 451 of the Code of Criminal Procedure, 1973 (the Code) praying to release the muddamal Raido in favour of the petitioner. By an order dated 21st December, 2006, the said application was partly allowed in the following terms. 1. The A.P.M.C., Mehsana was directed that it should take possession of the mustard seeds/Raido which was lying in the Godown of the I.C.I.C.I. Bank and dispose of the same by way of public auction and deposit the proceeds thereof ina nationalized Bank. It was clarified SCR.A/2439/2007 4/8 JUDGMENT that the A.P.M.C., Mehsana should not withdraw any amount without orders of the Court. 2. It was also directed that the A.P.M.C., Mehsana shall furnish specific details regarding the amount recovered by way of public auction and as to in which nationalized Bank, the same has been deposited. 3. To issue a Yadi to the I.C.I.C.I. Bank to cooperate with the A.P.M.C., Mehsana in the aforesaid proceedings. 5. Being party aggrieved by the aforesaid order, the petitioner filed a revision application being Criminal Revision Application No.08 of 2007 before the learned Additional City Sessions Judge, Court No.8, Ahmedabad under the provisions of section 397 of the Code. It appears that the only grievance raised before the learned Additional City Sessions Judge was that the amount of proceeds be directed to be deposited with the I.C.I.C.I. Bank and not in any nationalized Bank. By the impugned order dated 7th December, 2007, the learned Additional City Sessions Judge rejected the revision application. Being aggrieved, the petitioner has filed the present petition seeking the reliefs noted hereinabove. 6. Heard Mr. Ashish Dagli, learned advocate for the petitioner, Mr. M.R. Mengdey, learned Additional Public Prosecutor for respondent No.1, State of Gujarat, Mr. V.M. Pancholi, learned advocate for respondent No.2 and Mr. P.R. Abichandani, learned advocate for respondent No.3. SCR.A/2439/2007 5/8 JUDGMENT 7. Before the Court, the submissions advanced by the learned advocate for the petitioner were limited to the manner in which the mustard seeds/Raido in question should be disposed of, the agency to be appointed for disposing of the same and as to the manner in which the amount recovered by way of public auction should be deposited. Learned advocate for the petitioner has prayed that the amount recovered by way of public auction should be deposited in a separate account in the I.C.I.C.I. Bank. The said course of action was strongly opposed by the learned advocate for the respondent No.2. The learned advocate for the petitioner had also voiced an apprehension that if the muddamal goods are disposed of through A.P.M.C., Mehsana, there are possibilities that the same would not fetch the best price, as he apprehended that there was an intention to form a cartel amongst the traders to dispose of the goods at a lesser price. 8. Having considered the submissions advanced by the learned advocates for the parties, this Court is of the view that in so far as the prayer to deposit the amount recovered by way of public auction in the I.C.I.C.I. Bank is concerned, the same being thoroughly misconceived does not merit acceptance. 9. However, as regards the prayer for disposing of the goods in the open market through an agency other than Mehsana A.P.M.C., all the learned advocates for the parties are in agreement that appropriate directions be SCR.A/2439/2007 6/8 JUDGMENT issued so as to fetch the best possible price in respect of the muddamal goods. In the circumstances, in the opinion of this Court, the ends of justice would best be served if the order dated 21st December, 2006 passed by the learned Chief Metropolitan Magistrate is modified by issuing the following directions- a) The trial Court shall forthwith appoint a Court Commissioner, who shall be practising advocate with the minimum standing of five years. b) The entire auction proceedings shall be conducted under the supervision of the said Court Commissioner. c) The Court Commissioner shall ensure that the entire process is conducted in the presence of one representative each of the complainant, the petitioner as well as the I.C.I.C.I. Bank. d) The auction proceedings shall be conducted by the Court Commissioner through the Chairman, A.P.M.C., Ahmedabad or through any authorized responsible officer of the A.P.M.C., Ahmedabad. The trial Court shall intimate the Chairman of the A.P.M.C., Ahmedabad regarding this order and seek his cooperation in disposing of the muddamal goods, as directed under this order. e) Notice of public auction shall be issued in two vernacular dailies having wide circulation, viz. “Sandesh”, “Gujarat Samachar”, “Divya Bhaskar” etc. The cost of publication of the public notice shall be borne by the petitioner. f) The auction shall be held at the place where the muddamal goods/stock is lying i.e. at Rashtriya Grid SCR.A/2439/2007 7/8 JUDGMENT Godown, Visnagar. g) The entire process shall be completed as expeditiously as possible; preferably within a period of 15 days and in any case nor later than 10th February, 2008. h) The amount realized through the public auction shall be deposited with the Trial Court to be invested in Fixed deposit fetching higher rate of interest with any nationalized Bank, in the name of the Registrar of the trial Court, initially for a period of five years and the same shall be renewed from time to time till the final disposal of the case. i) Any ancillary expenses that may be incurred during the course of the auction proceedings shall be deducted from the sale proceeds subject to the outer limit of Rs.10,000/-. j) The amount deposited as aforesaid shall be subject to the final orders that may be passed by the trial Court in this regard. k) It shall be clarified in the auction notice itself that outstanding godown charges as well as ancillary expenses for conducting the auction shall be borne by the prospective purchaser/bidder. 10.In the result, the petition partly succeeds and is accordingly allowed to the aforesaid extent. The order dated 21st December, 2006 passed by the learned Metropolitan Magistrate in Criminal Miscellaneous Application No.13 of 2006 is modified to the aforesaid extent. Rule is made absolute to the aforesaid extent. Ad interim relief granted earlier shall stand vacated. SCR.A/2439/2007 8/8 JUDGMENT (H.N.DEVANI, J.) shekhar/-