Mahesh Kumar Jaiswal vs State Of Chhattisgarh

Goutam Bhaduri, J

Heard

The instant petition is against the order dated 23.11.2017 whereby the order refusing to release vehicle on custody by an order dated 02.11.2017

passed by the J.M.F.C. Balrampur was affirmed by the Additional Sessions Judge Ramanujganj, Sarguja (C.G.).

As per the prosecution case, a case was registered under Section 13 of the Public Gambling Act, 1867 and the vehicle Tata Sumo Gold bearing

Registration No.C.G.15 CZ 1714 was seized. Thereafter, the charge sheet was filed and the application when was filed for interim custody of the

vehicle, the same was dismissed on the ground that the goods which are seized are liable to be confiscated according to Section 8 of the Public

Gambling Act, 1867.

Learned counsel for the petitioner would submit that the order is absolutely against the law as Section 8 of the Public Gambling Act would come

into play only after conviction, which cannot be implemented and press into motion when the custody of the vehicle is sought for during the trial and

there was no certainty as the trial would complete. Till then if the vehicle is kept under the custody it will lose its motor-ability and subject to natural

decay. Considering the same, the vehicle may be handed over to the petitioner.

Per contra, learned State counsel opposes the argument and would submit the order of the Court below is well merited which do not call for any

interference.

Perused Section 8 of the Public Gambling Act, 1867, which reads as under :

On conviction for keeping a gaming-house, instruments of gaming to be destroyed. - On conviction of any person for keeping or using any such

common gaming- house, or being present therein for the purpose of gaming, the convicting Magistrate may order all the instruments of gaming found

therein to be destroyed, and may also order all or any of the securities for money and other articles seized, not being instruments of gaming, to be sold

and converted into money, and the proceeds thereof with all moneys seized therein to be forfeited or, in his discretion, may order any part thereof to

be returned to the persons appearing to have severally thereunto entitled.

The order finds a reference of Section 8 of the Public Gaming Act, 1867, which says on conviction for keeping a gaming-house, instruments of

gaming to be destroyed. Thereby, reading of Section 8 would show that the section would come into play after conviction is arrived at. The

presumption cannot be drawn during pendency of the proceeding.

It is matter of common knowledge or experience that as and when the vehicles are seized and kept in police stations, not only do they occupy

substantial space in police stations, but upon being kept in open are also prone to fast natural decay on account of whether conditions. Even a good

maintained vehicle looses its road worthiness if it is kept stationary in the police station for more than two weeks. Apart from the above, it is also

matter of common knowledge that several valuable and costly parts of the said vehicle are either gets junked or are cannibalized so that the vehicles

become unworthy of being driven on road. Therefore, no purpose will be served to keep the vehicle in police custody for a long time as it will turn junk

and also occupy the substantial place of police station.

Considering the entirety of the facts, the reason assigned by the learned Court below in the impugned order dated 23.11.2017 cannot be

appreciated.

Under the circumstances, following the principles laid down in (2010) 6 SCC 768 and (2002) 10 SCC 283, I am inclined to release the vehicle in

favour of the applicant. Accordingly, the vehicle shall be released on the following conditions :- (I) Before release of vehicle proper Panchnama be

prepared.

(ii) Photographs of vehicle should be taken and bond should also be produced that the vehicle would be produced if required at the time of trial.

(iii) Proper security i.e., personal bond of Rs.7 Lacs and like sum of surety be obtained before release of vehicle.

In view of foregoing discussion, the petition succeeds and is allowed.