1 WP 1431/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1431 OF 2010 Shri Laxmanram Surjaram Kumhar through Jagdish Bhawarlal Saraswat ...Petitioner vs. The State of Maharashtra ...Respondent Mr.Sandesh D. Patil for the Petitioner. Mr.S.A. Shaikh, APP for the State. CORAM : V.M. KANADE, J. DATED : JULY 19, 2010 P.C. :- 1 Heard Counsel for the petitioner and APP for the State. 2 This petition is filed by the petitioner under Article 227 of the Constitution of India and under Section 482 of the Cr.P.C. challenging the order passed by the trial court and confirmed by the Sessions Court in revision where the petitioner has 2 WP 1431/2010 been asked to furnish a Bank Guarantee of Rs.3 lakhs and Indemnity Bond of Rs.10 lakhs as a condition precedent for returning the vehicle which was seized by the respondent. 3 An offence under Sections 65-A, 70, 81, 83, 90 and 108 of the Bombay Prohibition Act was registered vide C.R. No.212/2009. A truck which was used for the purpose of transporting the contraband was also seized. An application was made for return of the said truck and in the said application, the petitioner was directed to furnish Bank Guarantee of Rs.3 lakhs which order has been confirmed by the Sessions Court. 4 Counsel for the petitioner submitted that unlike the Forest Act, under the provisions of the Bombay Prohibition Act, any vehicle which is seized by the police does not vest in the Government. It is further submitted that the maximum punishment for the aforesaid offences is upto 5 years and the fine 3 WP 1431/2010 which can be imposed on the accused cannot be less than Rs.25,000/-. It is submitted that the learned Magistrate as well as the Sessions Court erred in directing the petitioner to furnish Bank Guarantee of Rs.3 lakhs. It is submitted that the petitioner would not be in a position to furnish the Bank Guarantee and as a result, the said vehicle would remain in the custody of the police and after sometime, the vehicle will have to be sold as scrap on account of deterioration during the pendency of the appeal. He invited my attention to the judgment of Karnataka High Court in K. Ravindra Mallya vs. The State of Karnataka, by State Public Prosecutor and Anr., reported in ILR 2003 KAR 3128. He submitted that on similar fact, the learned Single Judge of Karnataka High Court was pleased to set aside the order of the trial court asking the petitioner to furnish the Bank Guarantee. 5 The learned APP, appearing on behalf of the State, on the other hand, submitted that the vehicle 4 WP 1431/2010 is registered at Rajasthan and therefore, in order to ensure that the vehicle is not taken away, the trial court has imposed the said condition. It is submitted that there is concurrent finding recorded by the Sessions Court and therefore, this court should not interfere with the order passed by the trial court under Section 482 of the Cr.P.C. and by exercising the writ jurisdiction under Article 227 of the Constitution of India. 6 In my view, since the police have power to seize the vehicle but cannot confiscate it and as such the vehicle does not vest in the State Government, in my view, it is not necessary to impose a condition which the petitioner may not be able to perform. The petitioner has been asked to execute Indemnity Bond in the sum of Rs.10 lakhs. The vehicle appears to be an old vehicle. The petitioner has a permanent place of residence. He has executed the Indemnity Bond as directed by the trial court. There is an order of injunction 5 WP 1431/2010 restraining him from selling the said vehicle and he is also directed not to create any third party rights or create any charge on the said property. If there is any violation of the aforesaid orders, suitable action can be taken against the petitioner. No useful purpose will be served if the vehicle remains in the police station because then the vehicle will not be of any use to anyone after sometime. 7 Under the Forest Act under Section 61, there is a provision wherein competent authority can pass an order and upon such an order being passed, the said vehicle vests in the State Government. There is no such similar provision under the Bombay Prohibition Act. 8 Under these circumstances, therefore, in my view, the condition imposed by the trial court asking the petitioner to execute Bank Guarantee of Rs.3 lakhs is set aside. The petitioner, however, 6 WP 1431/2010 shall furnish the solvent surety in the sum of Rs.3 lakhs to the satisfaction of the trial court. 9 Order is, accordingly, modified. Petition is disposed of. (V.M. KANADE, J.)