Ranchodji Rupsangji Thakor vs State Of Gujarat

Vipul M. Pancholi, J

Rule. Learned Assistant Public Prosecutor waives service of notice of rule for the respondents.

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 for the

release of the muddamal vehicle i.e. Swift Desire bearing Registration No.GJ-02-BD-9006.

The brief facts leading to the filing of the present petition are as under,

3.1 The petitioner is the owner of the muddamal vehicle i.e. Swift Desire bearing Registration No.GJ-02-BD-9006 and it is duly registered with the

transport department of the Government. However on account of registration of FIR being C.R. No.III-51/2019 registered with Vadali Police Station,

Banaskantha under the Prohibition Act, the vehicle of the petitioner was recovered as muddamal.

3.2 Therefore to get the custody of the said vehicle, the petitioner filed an application under Section 451 of the Criminal Procedure Code, however, the

learned Magistrate, Vadali rejected the said application vide order dated 25.11.2019.

3.3 Against the aforesaid order rejecting the application of the petitioner, the petitioner approached the concerned Sessions Court by filing Criminal

Revision Application No.37/2019, which came to be rejected by an order dated 01.01.2020.

3.3 Being aggrieved by the aforesaid order rejecting the Revision Application filed by the petitioner, the petitioner has filed present petition with a

prayer to release the muddamal of vehicle.

Learned advocate, Mr. Makwana appearing for the petitioners submitted that the petitioner is the owner of the vehicle in question, however, the

petitioner is nowhere connected in the commission of offence. It is submitted that merely because the vehicle in question was driven by the driver,

there is no ground available to the Investigating Officer to seize the vehicle in question. It is submitted that the petitioner was not aware about the

usage of the vehicle in question in commission of such offence under provisions of the Gujarat Prohibition Act, 1949. It is submitted that the vehicle in

question is the source of livelihood of the petitioner and if the same is not released, the petitioner would suffer grave hardship.

In support of his submission, learned advocate, Mr. Makwana has placed reliance on the judgment of the coordinate benches of this Court rendered

in Special Criminal Application No.7761 of 2018 rendered in the case of Pravinbhai Chhaganbhai Parmar vs. State of Gujarat as well as the order

passed in Special Criminal Application No.3494 of 2019 rendered in the case of M/s. Om Shakti Travesl vs. State of Gujarat. It is submitted that this

Court has, while exercising powers under Articles 226 and 227 of the Constitution of India, released the vehicle by imposing suitable conditions. In

view of the said, the present petition may also be allowed releasing the vehicle in question by imposing suitable conditions.

On the other hand, Learned APP Mr. Raval appearing for the respondent State, while opposing the petition, has vehemently submitted that the

vehicle in question was involved in the offence under the provisions of the Gujarat Prohibition Act, 1949 and at this stage, permission for releasing the

vehicle in question to the petitioner may not be granted. That in view of the embargo contemplated under the provisions of Section 98 of the Gujarat

Prohibition Act, 1949, the Courts below have rightly not exercised powers releasing the vehicle in question. Reliance has been placed on the judgment

in case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat rendered in Special Criminal Application No.8521 of 2017, decided on 15.12.2017,

wherein this Court held that in view of the embargo, the Courts below have no jurisdiction to hand over the custody of the vehicle in question used in

the offence. It is, thus, submitted that the writ petition may not be entertained and it may be rejected.

Heard learned advocates appearing for the parties through video conference.

On hearing learned advocates appearing for the parties and on perusal of the documents produced on record including the facts mentioned

hereinabove, it is clear that the petitioner is the owner of the vehicle in question, which was seized in connection with an FIR being C.R. No.III-

51/2019 registered with Vadali Police Station, Banaskantha for the offences under the provision of the Gujarat Prohibition Act. However, since the

vehicle in question, which is seized in connection with aforesaid FIR, is kept idle at the police station, in the place open to sky, it is likely to reduce the

life of the vehicle in question.

This Court in case of Anilkumar Ramlal alias Ramanlalji Mehta vs. State of Gujarat rendered in Special Criminal Criminal Application No.2185 of

2018, has directed the release of the vehicle by imposing suitable conditions. Moreover, the coordinate benches of this Court have also directed the

release of the vehicle applying the principles laid down by the Apex Court in case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in AIR

2003 SC 638. Except the fact that in view of the embargo provided in Section 98 of the Gujarat Prohibition Act, 1949, the Courts below have rightly

not exercised the powers, nothing adverse has been pointed out by the learned Additional Public Prosecutor for not exercising the powers for releasing

the vehicle in question, by this Court. Thus, applying the aforesaid principles of law to the facts of the present case, this Court is inclined to exercise

power under Article 226 of the Constitution of India.

Therefore in view of the above facts, the present petition is allowed. The vehicle in question i.e. Swift Desire bearing Registration No.GJ-02-BD-

9006 is ordered to be released, pending the trial, on the terms and conditions that the petitioner:

(i) 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;

(ii) file an undertaking on oath before the trial Court that he shall not transfer, alienate, part with the possession of the vehicle or create any charge

over the vehicle till the conclusion of the trial;

(iii) produce the vehicle as and when the authority or the Court concerned directs him to do so.

Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/ authority

forthwith.