Harshadbhai Narshinhbhai Patel vs State Of Gujarat

Dr. Justice Ashokkumar C. Joshi, J

The petitioner has filed this application seeking to invoke extra ordinary jurisdiction to this Court under Articles 226 and 227 of the Constitution of

India, mainly supervisory jurisdiction to release the muddamal vehicle- Maruti Swift Dizire bearing RTO registration No. GJ-08-AE-2333 in connection

with the FIR being CR No. III- 246 of 2017 registered with Kothamba Police Station, District â€" Mahisagar for the offence punishable under

Sections 65(E), 81 and 98(2) of the Gujarat Prohibition Act.

Heard learned advocate Mr. Bhavesh J. Patel for the petitioner and learned APP Mr. L. B. Dabhi on behalf of the Respondent State of Gujarat

through video conference.

Factual Matrix of the case:

It is the case of the petitioner that the petitioner is the owner of vehicle Maruti Swift Dizire bearing RTO registration No. GJ-08-AE-2333. The

petitioner is doing business and doing legal activities for earning his livelihood and the vehicle was seized in prohibition Case registered with the

aforesaid Police Station. It is also submitted that by virtue of provisions of Section 98 of the Prohibition Act, there is clear embargo for handing over

the custody of the vehicle used in the offence pending the trial and if the vehicle is lying at the Police Station for more time, there will be physical

damage to it, therefore interference of this Hon’ble Court is required and therefore, this Court may be pleased to allow this application in the

interest of justice.

It is contended that as per the allegations in the FIR, the vehicle was seized as liquor worth Rs. 90,000/- was found in the vehicle and accordingly,

an FIR came to be registered.

It is also contended that petitioner has purchased vehicle-Maruti Swift Dizire bearing RTO registration No. GJ-08-AE-2333, and at present the said

vehicle is lying in Police Station in abandoned condition. Therefore, the present petition is filed for releasing captioned muddamal vehicle.

Earlier this Court has issued rule on 26.11.2020, returnable on 14.12.2020. Learned advocate for the petitioner time and again vehemently submitted

that the co â€"ordinate Bench passed the order in favour of the petitioner in identical cases. Further learned advocate for the petitioner has placed

reliance upon the judgments of co-ordinate Bench (1) in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No.

5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application No. 2776 of 2020

order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019

order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated

26.06.2020, (5) in case of Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in Special Criminal Application No. 2692 of 2020 order dated

14.07.2020 and also placed reliance upon the judgment delivered by the Hon’ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of

Gujarat, AIR 2003 SC 638.

Per contra, learned APP for the Respondent - State has vehemently argued that if the said muddamal vehicle is released, in that case there are all

chances of committing the same offence in future under the Prohibition Act. The petitioner having no antecedent and his name is not shown in the

FIR. Learned APP has also submitted that the vehicle was handed over for transportation of illegal liquor.

Further, learned APP has also placed reliance upon the judgment passed by the Co-ordinate Bench in case of Anilkumar Ramlal @ Ramanlaji

Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018 dated 05.04.2018. Order dated 12.06.2020 passed in Special Criminal

Application No. 7631 of 2019, wherein contrary view has taken in releasing muddamal vehicle involved in the Gujarat Prohibition Act. Learned APP

further contended that SLP (Cri.) No. 886 of 2018 is pending before the Hon’ble Apex Court in respect of the said issue, and therefore, no power

would be exercise by this Court for releasing the vehicle seized by Police in the prohibition Offence. It was also contended that learned trial Court had

rightly disallowed the muddamal application in that case by invoking Section 98(2) of the Prohibition Act and Court below has no jurisdiction to pass

order for interim release of muddamal vehicle when trial is pending in connection with offence under the Prohibition Act. Learned APP further urged

that in view of Section 98(2) of the latest Prohibition Act, as well as, as per judgment passed by this Court in case of Anilkumar Ramlal @ Ramanlaji

Mehta Vs. State of Gujarat, the vehicle used in Prohibition, where quantity is more than 10 liters, cannot be released. Further, learned APP also

placed reliance upon judgment of Co ordinate Bench dated 15.12.2017 in Special Criminal Application No. 8521 of 2017.

Having heard the arguments advanced by both the sides, while determining the other issues raised by the learned APP in reference to Sections 98

and 99 and other provisions of the said Act, and referring that to be determined in future in appropriate proceedings being contentious issue, this Court

is not inclined to enter into that arena in the present matter and instead exercised the powers vested under Articles 226 and 227 of the Constitution.

The Co-ordinate Bench in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018

dated 05.04.2018 has also returned the captioned involved vehicle in the Prohibition Act under Articles 226 and 227 of the Constitution by exercising

its powers even at initial stage.

Having heard the arguments advanced by both the sides, it would be worthwhile to refer profitably at this stage to the observations made by the

Hon’ble Apex Court within a period of six months before concerned Court to needful be done. Further, the Hon’ble Apex Court also to the

extent of directing that where the vehicle is not claimed by the accused, owner or the Insurance Company or by third person which such vehicle may

be ordered to be auction by the Court, if the said vehicle is insured with the insurance company then Insurance Company be informed by the Court to

take possession of the vehicle which is not claimed by the owner or third person. If the Insurance company fails to take possession, the vehicle may

be sold as per the direction of the Court. The Court would pass such orders, then within a period of six months from the date of production of such

vehicle before the Court. It is also directed that before handing over such possession of vehicle, appropriate photographs of the said vehicle should be

taken and detailed panchnama should also be prepared. The Hon’ble Apex Court also held that to specifically direct the concerned Magistrate

would take immediate action for seeing powers under Section 451 of the Code and properly exercise and articles are not kept for long time at the

Police Station, in any case, for not more than 15 days to one months. It is therefore, directed this object can also be achieved however, there should be

proper supervision by the Registry of the concerned High Court in seeing that Rules framed by the High Court with regard to such articles are

implemented properly. This Court has perused the report of Investigating Officer as submitted by learned APP which is taken on record.

Further, learned APP has submitted that the petitioner is not named in the FIR and there is no antecedent registered against the petitioner. Further,

it is nobody’s case that same vehicle is used in all earlier offences, and therefore, the petitioner cannot be denied the interim possession of vehicle

on the basis of the judgment of Hon’ble Supreme Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), this Court is inclined to

exercise extraordinary powers under Articles 226 and 227 of the Constitution.

It observed by the Hon’ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), which reads as under:

“15. Learned Senior Counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the Police Station premises,

number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the

Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by

taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is

seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

In our view, whatever be the situation, it is of no use to keep such â€"seized vehicles at the police stations for a long period. It is for the Magistrate

to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any

point of time. This can be done pending hearing of applications for return of such vehicles.â€​

This Court has assistance of orders passed by the co ordinate Bench in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal

Application No. 5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application

No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application

No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of

2020 order dated 26.06.2020, (5) in case of Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in Special Criminal Application No. 2692 of

2020 order dated 14.07.2020, wherein, muddamal vehicle was used in offences under the Prohibition Act released by this Court at many occasions.

Resultantly, in-fleri this application is allowed, the authority concerned is directed to release the vehicle of petitioner- Maruti Swift Dizire bearing

RTO registration No. GJ-08-AE-2333 in the terms and conditions that the petitioner:

i. Shall furnish, by way of security, bond as per valued cited in Panchnama or seizure memo and solvent surety of the equivalent amount;

ii. Shall file an undertaking before the trial Court that prior to alienation or transfer in any mode or manner, prior permission of the concerned Court

shall be taken till conclusion of the trial,

iii. Shall also file an undertaking to produce the vehicle as an when directed by the trial Court;

iv. The concerned Trial Court shall verify the ownership of the vehicle before releasing the same.

v. If the I.O. finds use of vehicle in such illegal activity by the present petitioner then this order shall stand cancel and the vehicle will be seized.

Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed Panchnama in that regard,

if not already drawn, shall also be drawn for the purpose of trial.

If, the I.O. finds it necessary, VIDEOGRAPHY of the vehicle also shall be done. Expenses towards the photographs and the videography shall be

BORNE by the petitioner. This petition is allowed. Rule is made absolute. The Registry is directed to communicate this order by Fax / by E-mail to the

concerned Court and Police Station.