Ishwar Bhachuram Gupta vs State Of Gujarat

Dr. Ashokkumar C. Joshi, J

Heard learend advocate Ms. Foram U Trivedi for the applicant and learned APP Mr. Chintan Dave for the respondent- State through video

conference.

The petitioner has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction

under Section 227 of the Constitution of India so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973.

This petition is preferred seeking release of the vehicle Rickshaw bearing registration No. GJ12-BU-1369, which is seized in connection with

prohibition CR No. III 5230/2017 registered with Adipur Police Station, District- Kachchh.

It is the case of the petitioner that petitioner is the owner of the aforesaid vehicle and it is duly registered with the transport department of the

Government. He is, therefore, before this Court.

The case of the prosecution is that while the police personnels were on patrolling, they received a secret information of the vehicle in question

carrying liquor and when police authorities intercepted the same, on carrying out the search of the said vehicle, its driver was found carrying liquor

without any pass or permit. Therefore, an FIR being Prohi. /III x`C.R. No.5230/2017 came to be lodged for the offence under the Gujarat Prohibition

Act.

Learned Advocate for the petitioner has urged that this Court has wide powers, while exercising such powers under Article 226 of the Constitution.

It can also take into account the ratio laid down in the case of ‘SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT’, AIR 2003

SC 638, wherein, the Apex Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police

station premises.

Per contra, learned APP has opposed the release of muddamal vehicle so involved in the offence and submitted that appropriate orders may be

passed.

On thus hearing both the sides, without determining the other issues raised by the petitioner, in reference to Sections 98 and 99 and other provisions

of the said Act and reserving that to be determined in future, in an appropriate proceedings being a contentious issue, this Court choses not to enter

into that arena in the present matter and instead exercise the powers under Articles 226 and 227 of the Constitution. Moreover, lying of the vehicle

with the police station is of no use to anybody but infact is a national waste and ultimately it is a loss to public exchequer and loss to the government if

the vehicle is not released.

This Court (Coram: J.B. Pardiwala, J.) however in the case of in ‘ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF

GUJARAT’ (Supra) in Special Criminal Application No. 2185 of 2018, Dated: 05.04.2018 and (Coram: R. P. Dholaria, J.) in the case of in

‘PRAVINBHAI CHHAGANBHAI PARMAR VS. STATE OF GUJARAT’ (Supra) in Special Criminal Application No. 7761 of 2018,

Dated: 07.09.2018 has also released the vehicle recently under Articles 226 and 227 of the Constitution, exercising its powers to do that even at an

initial stage.

9.1 This Court has also referred the order passed by the co-ordinate Bench (Coram Sonia Gokhani, J) passed in Special Criminal Application No.

200/2019 dated 18.01.2019 wherein the Court has released the vehicle Auto rickshaw. Further this Court has also referred to the order passed by this

Court (Coram J. B Paradiwala, J) dated 10.04.2018 in Special Criminal Application No 2469/2018 wherein the order passed by the revisional Court is

quashed and set aside and the muddamal vehicle Xylo car involved in the offence is released.

9.2 It would be worthwhile to refer profitably at this stage to the observations made by the Hon’ble Apex Court in ‘SUNDERBHAI

AMBALAL DESAI VS. STATE OF GUJARAT’ (Supra), which read 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 suchseized 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€​

9.3 The Hon’ble Apex Court has, thus, directed that within a period of six months from the date of production of the vehicle before the Court

concerned, needful be done. It even went to the extent of directing that where the vehicle is not claimed by the accused, owner, or the insurance

company or by third person, then such vehicle may be ordered to be auctioned 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 a third person. If Insurance

company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six

months from the date of production of the said vehicle before the Court. It also directed that before handing over possession of such vehicles,

appropriate photographs of the said vehicle should be taken and a detailed panchnama should also be prepared. The Hon’ble Apex Court also held

and specifically directed that concerned Magistrate would take immediate action for seeing that powers under Section 451 of the Code are properly

and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. It,

therefore, directed that this object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the

rules framed by the High Court with regard to such articles are implemented properly.

Resultantly, this application is ALLOWED. The authority concerned is directed to RELEASE the vehicle of the petitioner, being Rickshaw

bearing registration No. GJ12-BU-1369 on the terms and conditions that the petitioner:

(i) shall furnish a solvent surety of the amount equivalent to the value of vehicle in question before the trial Court as per the value disclosed in the

seizure memo or pachnama.

(ii) shall file an undertaking before the trial Court that prior to alienation or transfer, alienate, part with teh possession of the vehicle or create any

charge over the vehicle 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 and when directed by the trial Court;

(iv) in the event of any subsequent offence, the vehicle shall stand CONFISCATED.

10.1 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.

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

be BORNE by the petitioner.

Rule is made absolute, accordingly. Direct service is permitted through fax/ e-mail.