1.0 Rule. Ms. C.M. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent State and Shri Ravani, learned advocate waives service of notice of Rule on behalf of respondent no.2. In the facts and circumstances of the case, present application is taken up for final hearing today.
2.0 Present Criminal Revision Application under Section 397 r/w Section 401 of the Code of Criminal Procedure has been preferred by the applicant hereinoriginal accused to quash and set aside the impugned order dated 30.8.2010 passed by the learned Special Judge, CBI Court at Mirzapur, Ahmedabad passed in Criminal Miscellaneous Application No.78 of 2010, by which, learned Court has rejected the said application preferred by the applicant herein original accused which was submitted to return the seized articles mentioned in the application dated 28.4.2010.
3.0 At the outset, it is required to be noted that applicant original accused is being prosecuted and tried for the offence under the Prevention of Corruption Act for demand of Rs.40,000/. It appears that during the raid conducted by the Investigating Agency amount of Rs.80,000/ certain National Service Certificate and certain documents as mentioned in the application dated 28.4.2010 came to be seized. It appears that thereafter applicant has been chargesheeted and Criminal Case being Special Case No.18 of 2008 is pending before the concerned Court. In the said case, the applicant original accused submitted the Criminal Miscellaneous Application 78 of 2010 under Section 451 of the Code of Criminal Procedure to return the articles mentioned in the para 3 of the said application, as according to the applicant same are not seized as Mudamal article for the offence, for which he is being tried. The said application has been rejected by the learned Special Court by impugned order. Hence, being aggrieved and dissatisfied with the impugned order dated 30.8.2010 passed by the learned Special Court passed in Criminal Miscellaneous Application No.78 of 2010, the applicant hereinoriginal accused has preferred present Criminal Revision Application.
4.0 Shri D.J. Bhatt, learned advocate for the applicant original accused has vehemently submitted that the learned Special Court has materially erred in rejecting the Criminal Miscellaneous Application No.78 of 2010 and not returning the articles mentioned in para 3 of the application dated 28.4.2010 by treating the said articles/currency notes / National Savings Certificate as Mudamal. It is submitted that the articles/currency notes / National Savings Certificate which are seized from the residence of the applicant cannot be said to be Mudamal article so far as offence against the applicant under the provisions of Corruption Act is concerned. It is submitted that as such the applicant is not being tried for the offence of disproportionate assets. Therefore, it is requested to allow the present Criminal Revision Application and quash and set aside the impugned order and consequently to allow the said application by returning the articles mentioned in para 3 of the said application on any condition that may be imposed by this Court.
5.0 Shri Ravani, learned advocate for the respondent no.2 investigating agency is not in a position to dispute that the applicant is being tried for the offence under the Prevention of Corruption Act for demand of Rs.40000/ only and the applicant is not tried for the offence of disproportionate assets. He is therefore, not in a position to satisfy the Court how the articles mentioned in para 3 of the application i.e. passbook and other document / currency note / National Savings Certificates can be said to be Mudamal so far as offence for which applicant is being tried. However, has requested not to return the mobiles which were recovered / seized from his residence as it might have some bearing on the case against the applicant. He has submitted that if this Court is inclined to release / return the articles mentioned in para 3 except mobiles, suitable conditions may be imposed and the applicant may be directed to file undertaking before this Court as well as before learned Special Court that as and when such articles are asked to be returned and same shall be produced by him.
6.0 Ms. Shah, learned Additional Public Prosecutor has requested to pass appropriate order considering the facts and circumstances of the case.
7.0 Heard the learned advocates for the respective parties and considered the impugned order. At the outset, it is required to be noted that the applicant is being tried for the offence under the Prevention of Corruption Act for demand of Rs.40,000/. The applicant is not tried for any other offence, more particularly, the offence with regard to disproportionate assets. Therefore, articles/ currency note/ Natioanl Savings Certificates / documents which are seized and / or recovered from his residence cannot be said to be Mudamal articles for the offences for which the applicant is tried. However, Shri Ravani, learned advocate for the respondent no.2 is justified in objecting to return two Nokia Mobiles. Shri D.J. Bhatt, learned advocate for the applicant has stated at the bar that he does not press the prayer of the applicant to return two Nokia Mobiles which are mentioned at serial nos. 2 and 3 of para 3 of the application dated 28.4.2010. Under the circumstances, when the aforesaid documents/ articles/ currency note/ National Savings Certificates which are seized by the respondent no.2 cannot be said to be Mudamal article, same are to be returned to applicant on certain terms and conditions.
8.0 Under the circumstances, present Criminal Revision Application succeeds in part. The impugned order dated 30.8.2010 passed by the learned Special Judge, CBI Court at Mirzapur, Ahmedabad passed in Criminal Miscellaneous Application No.78 of 2010 is hereby quashed and set aside and it is directed to return the articles/ currency note/ National Savings Certificates and other documents as mentioend in para 3(1) and 3(4) to 3 (14) i.e. except Nokia Mobile mentioned in sub para (2) and (3) of para 3, on condition that the applicant shall file undertaking before this Court as well as before learned Special Court that as and when those documents / articles are required by the concerned Court in the trial the applicant shall produce the same and on further condition that the same shall be get xeroxed at the cost of the applicant and original shall be returned to the applicant by the concerned Court. Two Nokia Mobiles which are mentioned in sub para (2) and (3) of para 3 shall be continued to be in custody of the concerned Court, for that present applicant is dismissed as not pressed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
“kaushik”
sd/ ( M. R. Shah, J. )