Rahulbhai Maldebhai Bhutiya(AHIR) vs State Of Gujarat

Bhargav D. Karia, J

Heard Ms. Akshitaba Solanki learned advocate for the applicant and Ms. C.M. Shah learned Additional Public Prosecutor for the respondent State

through video conference.

Rule. Learned Additional Public Prosecutor Ms. Shah waives service of notice of rule on behalf of the respondent State.

The petitioner has filed this writ petition under Article 226 of the Constitution of India with a prayer to hand over the vehicle in question i.e.

HYUNDAI MOT. IND. LTD, I 20 ASTA 1.4 CRDI DSL bearing registration no. GJ-10-CG- 4560, Chassis No. MALBM51RLGM285885H, Engine

No. B4FCGM146258 seized in connection with FIR being CR No.III-277 of 2019 registered with Kuvadva Road Police Station, Rajkot City, under the

provisions of the Gujarat Prohibition Act 1949 (“the Actâ€​ for short).

It is contended by the learned advocate for the petitioner that the seizure of vehicle has no nexus with the commission of offence. It was further

contended that hearing of the case may take years and continuation of the vehicle in such condition with police may cause loss to the petitioner. It was

further contended that Criminal Revision Application No.23/2020 preferred by the petitioner before the learned Additional Sessions Judge at Rajkot

was rejected by order dated 24.02.2020. It was further contended that if the vehicle is kept stationary for a long time, it would be prone to natural

decay on account of weather conditions. It is contended by learned advocate for the petitioner that learned trial Court as well as Revisional Court

have not handed over interim custody of the vehicle in question in view of the provisions of section 98(2) of the Act which provides embargo for

handing over the custody of the vehicle used in the offence pending the trial. It is, therefore, requested that appropriate directions should be given to

the concerned Magistrate / trial Court who is 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 / guarantee / solvent surety for the return of the said vehicles if required by the Court at any point of

time.

On the other-hand, Ms. C .M. Shah, learned Additional Public Prosecutor vehemently submitted that there is embargo under section 98(2) of the

Act to release the muddamal vehicle used in the offence and while interpreting the provisions of law, the coordinate bench of this Court in the case of

Pareshkumar Jaykarbhai Brahmbhatt Vs State of Gujarat, decided on 15.12.2017 held that in view of the embargo, the magisterial courts as well as

revisional courts have no jurisdiction to hand over custody of the vehicle used in the offence as per the provisions of section 451 of the Code of

Criminal Procedure 1973. Lastly, she requested this Court to dismiss the present petition.

In view of the aforesaid factual scenario, this Court has noticed that hundreds and thousands of such vehicles are lying either in the compound of

the concerned police stations or the said vehicles are being kept in an open ground which might have been hired for keeping such vehicles and

therefore, such vehicles remained idle/unutilized and by passage of time, the value of the vehicles is being diminished. This Court has also noticed that

in view of the backlog of such cases, the Magistrate Courts are not equipped with the machinery so as to complete the trial and hearing within time

bound schedule but usually, such sort of cases required minimum 4 to 5 years in disposal of such cases and therefore, if the vehicles are kept in that

manner in an open place for about 4 to 5 years, then naturally, the condition of the vehicle would be deteriorated and would be rendered useless and

thereafter even if it may be confiscated, then also, it would not fetch any value which might have been indicated in the seizure memo and ultimately, it

would be a loss to the public exchequer.

This Court has also noticed the detailed guidelines laid down by the Apex Court in the case of Sunderbhai Ambalal Desai Vs State of Gujarat

reported in 2003(1) GLH 307 wherein the Apex Court in clear and unequivocal terms directed the Court concerned to hand over the custody of such

vehicles to the persons who are entitled thereto as per the provisions of section 451 of the Code of Criminal Procedure 1973.

It also appears that the coordinate bench of this Court in various writ petitions while exercising the writ jurisdiction has granted interim custody of

the vehicles taking into consideration the decision of the Apex Court in the case of Hema Mishra Vs State of UP and others, reported in (2014) 4

SCC 453 wherein in spite of clear embargo granted anticipatory bail in the case under the provisions of the Scheduled Casts and Scheduled Tribes

(Prevention of Atrocities) Act. The Apex Court, while considering said embargo, held that the High Court and/or Sessions Court cannot grant the

anticipatory bail under section 438 in view of clear embargo under the Atrocity Act but in appropriate case, to meet with the ends of justice, while

exercising the writ jurisdiction, the High Court can grant anticipatory bail. Relying upon such interpretation, this High Court granted interim custody of

the vehicles taking it analogous interpretation though embargo is provided under the Act.

Indisputably, the vehicle in question is alleged to have been used in the commission of offence under the provisions of the Act. It is pointed out

during the course of hearing of the present matter that at present, in the police station premises or in open plot hired by the concerned authority,

numbers of vehicles are kept unattended and vehicles become junk and scrap day by day. It is also worth to note that the offence in question is not

being committed by the vehicle but by the offender who is involved in the case i.e. human being.

This Court is also conscious of the fact that to determine degree of guilt or involvement or non-involvement or even connivance on the part of the

owner of vehicle by this Court would be hazardous to the parties to the proceedings at the time of trial.

Considering the aforesaid legal position and rival submissions and considering the facts emerging out in the present case, I am inclined to exercise

writ jurisdiction under Article 226 of the Constitution of India and order release of the vehicle in question i.e. HYUNDAI MOT. IND. LTD, I 20

ASTA 1.4 CRDI DSL bearing registration no. GJ- 10-CG-4560, Chassis No. MALBM51RLGM285885H, Engine No. B4FCGM146258 pending the

trial.

In the result, this petition is allowed. The learned trial Court concerned is directed to immediately release the vehicle in question i.e. HYUNDAI

MOT. IND. LTD, I 20 ASTA 1.4 CRDI DSL bearing registration no. GJ-10-CG- 4560, Chassis No. MALBM51RLGM285885H, Engine No.

B4FCGM146258 after due verification and following the procedure of recording such evidence as it thinks necessary as provided under section 451 of

the Code of Criminal Procedure 1973 and on the petitioner fulfilling the following conditions :

(1) The petitioner shall furnish a solvent surety of the amount equivalent to the value of the vehicle in question as per the value disclosed in the seizure

memo or panchnama.

(2) The petitioner shall file an undertaking on oath before the trial Court that she shall not transfer, alienate, part with the possession of the vehicle or

create any charge over the vehicle till the conclusion of the trial.

(3) The petitioner shall produce the vehicle as and when the authority or the Court concerned directs him to do so.

With the above, this petition is disposed of. Rule is made absolute to the aforesaid extent with no order as to cost.