AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. A. P. Thaker, J
Heard Mr.Prajapati, learned advocate for the applicant and Ms.Mehta, learned APP for the respondent â€" State through Video Conferencing.
RULE. Ms.Mehta, learned APP waives service of notice of rule for respondent â€" State. With the consent of learned advocates for both the
sides, rule is fixed forthwith.
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 application has been preferred seeking release of Muddamal Vehicle i.e TATA Indigo Manza Car bearing Registration No.GJ-01-KC-1797. It
is the case of the petitioner that he 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 personnel 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 owner was found carrying liquor
without any pass or permit. Therefore, an FIR being Prohibition C.R. No.III - 180 of 2017 came to be lodged with Sawarkundla Town Police Station,
Amreli 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. No muddamal of liquor was recovered by the police from the motor vehicle seized in the offence nor the name of the present applicant is
shown in the complaint.
6.1 Learned advocate for the applicant has urged that, of course, powers of this Court under Article 226 of the Constitution to order release of the
vehicle can be exercised at any time, whenever the Court deems it appropriate. While relying upon the following decisions, he has requested this Court
to exercise the powers under Article 226 of the Constitution, for releasing the vehicle in question.
In the case of Kadarbhai Alibhai Patra Vs. State of Gujarat dated 17.06.2020 rendered in Special Criminal Application No.8958 of 2019;
In the case of Zala Mahendrasinh Kirtisinh Vs. State of Gujarat dated 26.06.2020 rendered in Special Criminal Application No.2717 of 2020;
In the case of Nilesh Pravinbhai Kamadiya Vs. State of Gujarat dated 30.06.2020 rendered in Special Criminal Application No.2735 of 2020;
In the case of Ranjitbhai Ishvarbhai Chunara (Vaghela) Vs. State of Gujarat dated 12.06.2020 rendered in Special Criminal Application No.7631 of
2020;
Learned APP for the respondent State has submitted that however, this Court (Coram: Hon'ble Mr. Justice J. B. Pardiwala, J.) in Special Criminal
Application No. 2185 of 2016 on dated 05.04.2018 in the case of ANILKUMAR RATILAL V. STATE OF GUJARAT has taken a contrary view in
releasing the muddamal vehicle involved in the offence under the Gujarat Prohibition Act. It is further submitted that one SLP (Cri.) No. 886 of 2018
is pending before the Hon'ble Apex Court in respect of said issue, and therefore, no powers would be exercised by this Court releasing the motor
vehicle seized by the police in the offence. She further submits that, it appears from the order passed by learned Trial Court below the application filed
under Section 451 of the Code of Criminal Procedure, TATA Indigo Manza Car bearing Registration No.GJ-01-KC-1797 is running on the name of
present applicant in the record of RTO office and the present applicant is the owner of the said vehicle.
7.1 She further submitted that the powers of the Magistrate to order interim release of the seized vehicle under Section 98(2)of the said Act has been
curtailed, and therefore, the Courts below have been held to have no jurisdiction to order interim release of the vehicle, pending trial, where, the
vehicle is seized in connection with the offence under the Prohibition Act. She relied upon the judgment of this Court reported in 2018 (1) GLR 558.
Learned APP at last requested to dismiss present application.
Having considered the submissions made on behalf of learned advocates for both the sides and considering the facts that the vehicle i.e. TATA
Indigo Manza Car bearing Registration No.GJ-01-KC-1797 has been seized by the concerned police authority during the course of the search under
the Prohibition Act. It also reveals from the materials placed on record that the applicant is the owner of the said vehicle and is not the accused in the
crime. On perusal of the decisions relied upon by the learned advocate for the applicant, it appears that all the cases were pertaining to the release of
muddamal vehicle under the provisions of the Prohibition Act wherein the applicants were owners of the vehicles and they were not the accused in
the offences. It is an admitted fact that if the vehicle is kept unused then it will become useless. The provisions of the Prohibition Act especially
Sections 98, 100 and 132 of the Prohibition Act, provide for confiscation of the vehicle involved in the prohibition offence. Sections 98, 100 and 132
reads as under:-
Section 98. Things Liable to confiscation:-
(1) whenever any offence punishable under this Act has been committed,
(a) any intoxicant, hemp, mhowra flowers., molasses, materials. still, utensil, implement or apparatus in respect of which the offence has
been committed,
(b) where in the case of an offence involving illegal possession, the offender has in his lawful possession any intoxicant, hemp, mhowra
flowers or molasses other than those in respect of which an offence under this Act has been committed, the entire stock of such intoxicant,
hemp, mhowra flowers or molasses,
(c) where, in the case of an offence of illegal import, export or transport, the offender has attempted to import, export or transport any
intoxicant, hemp, mhowra flowers or molasses, in contravention of the provisions of this Act, rule, regulation or order or in breach of a
condition of licence, permit, pass or authorisation, the whole quantity of such intoxicant, hemp, mhowra flowers or molasses which he has
attempted to import, export, or transport,
(d) where in the case of an offence of illegal sale, the offender has in his lawful possession any intoxicant, hemp, mhowra flowers or
molasses other than that in respect of which an offence has been committed, the whole of such other intoxicant, hemp, mhowra flowers or
molasses, shall be confiscated by the order of the court.
(2) Any receptacle, package or covering in which any of the articles liable to confiscation under sub-section (1) is found and the other
contents of such receptacle, package or covering and the animals, carts, vessels or other conveyances used in carrying any such article
shall likewise be liable to confiscation by the order of the Court.
Procedure in confiscation.-
When an offence under this Act has been committed and the offender is not known or cannot be found or when anythingliable to
confiscation under this Act is found or seized, the [Director], Director or any other officer authorised by the [State] Government in this
behalf may make an inquiry and if after such inquiry is satisfied that an offence has been committed, may order the thing found to be
confiscated:
Provided that no such order shall be made before the expiry of one month from the date of seizure, or without hearing [the person, if any,
claiming any right thereto] and the evidence, if any, which he produces in support of his claim.
Articles seized.- [When anything has been seized under the provisions of this Act by a Prohibition Officer exercising powers under
Section 129 or by an officer-in- charge of a police station], or has been sent to him in accordance with the provisions of this Act, such
officer, after such inquiry as may be, deemed necessary,-
(a) if it appears that such thing is required as evidence in the case of any person arrested, shall forward it to the Magistrate to whom such
person is forwarded or for his appearance before whom bail has been taken;
(b) if it appears that such thing is liable to confiscation but is not required as evidence as aforesaid, shall send it with a full report of the
particulars of seizure to the Collector;
(c) if no offence appears to have been committed shall return it to the person from whose possession it was taken.
In view of the aforesaid provisions, it appears that the same provides for confiscation. However, considering the factual aspects of this case, this
Court is of the considered opinion that the custody of the vehicle, if granted in favour of the applicant, no prejudice is likely to be caused to the
prosecution as there will be stringent conditions on the applicant with regard to the seized vehicle i.e. TATA Indigo Manza Car bearing Registration
No.GJ-01-KC-1797.
In the result, this application is allowed. The authority concerned is directed to release the vehicle of the applicant, being TATA Indigo Manza Car
bearing Registration No.GJ- 01-KC-1797, on the terms and conditions that the applicant:
(i) shall furnish, by way of security, bond of Rs.2,00,000/- (Rupee Two Lakh Only) and solvent surety of the equivalent amount;
(ii) shall file an undertaking on oath 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 on oath 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 applicant, necessary photographs shall be taken and detailed panchnama in that regard, if
not already drawn, shall also be drawn for the purpose of trial.
10.2 If, the Investigating Officer finds it necessary, videography of the vehicle also shall be done. Expenses towards the photographs and the
videography shall be borne by the applicant. Rule is made absolute, accordingly. Direct service is permitted.
Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode. Learned
advocate for the petitioner is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable
electronic mode.
The concerned Trial Court be informed accordingly.