Bombay High Court
Anand S/O Laxminarayan Jaiswal vs State Of Mah. Thr. Pso Ps Paratwada ... on 8 January, 2021
Bench: Swapna Joshi
1/8 16.Apl.788.2020 (Judg)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 788 OF 2020
Anand Laxminarayan Jaiswal
Aged about 47 years, Occu - Business;
R/o Near Khamgaon Bank, Devdi,
Achalpur, Tahsil Achalpur, District
Amravati. ... APPLICANT
VERSUS
State of Maharashtra
through Police Station Officer, Police
Station, Paratwada, Tahsil Achalpur,
District Amravati. ... NON-APPLICANT
Mr. P. R. Agrawal, Advocate for Applicant.
Ms. Shamsi Haider, APP for Non-applicant/State.
CORAM : MRS. SWAPNA JOSHI, J.
DATE : JANUARY 8, 2021.
ORAL JUDGMENT
. Heard. Admit. By consent of the learned Counsel for both
sides, matter is taken up for final disposal at the admission stage itself.
2/8 16.Apl.788.2020 (Judg)
2. By this Application, Applicant has challenged the Judgment
and order dated 15/9/2020 passed by the Additional Sessions Judge,
Achalpur in Criminal Revision Application No. 39 of 2020, to the extent
of rejection of the prayer for release of Alto Car bearing registration
No. MH-27/BE-0899. The Applicant further challenges the order dated
11/8/2020 passed by the learned Judicial Magistrate First Class,
Achalpur in Misc. Cri. Application No.691/2020.
3. The Applicant is running Beer Shop at Achalpur under the
name and style 'Maharaja Beer Shoppe' having its License No.
27/2010-11 issued by the competent authority. The Applicant claims to
have a permanent permit bearing no.1950343574FFC7F2 which is
issued under Rule 70-D of the Bombay Foreign Liquor Rules, 1953
authorizing him to purchase, possess, transport, use and consume
foreign liquor and country liquor.
4. On 23rd July 2020 Police Constable attached to the Police
Station, Paratwada, Tahsil Achalpur, District Amravati lodged a report
alleging that while he was patrolling on 22/7/2020 at about 8.00 p.m.
on receipt of secrete information, he proceeded to the place of incident
3/8 16.Apl.788.2020 (Judg)
where he found that there was one Alto Car bearing registration No.
MH-27/BE-0899 possessing the articles, viz - (i) 3 Kingfisher Beer
Bottles of 650 ml. each; (ii) 11 Kingfisher Beer Bottles of 330 ml. each;
(iii) 4 Tuborgs Beer Bottles of 650 ml. each; (iv) 4 Dia Red wine
sparkler bottles of 330 ml. each; and (v) 5 bottles of Real Star Grains
Spirit of 180 ml. each. It was the Applicant who was found with those
articles in that Alto Car. The Applicant was also found with one mobile
handset and the cash amount of Rs. 3360/-.
5. Police seized the said Alto Car so also the articles which
were found in the Car. The mobile handset was also seized by the
police along with the cash amount. The offence came to be registered
against the Applicant vide Crime No. 321 of 2020 for the offence
punishable under Section 65(e) of the Maharashtra Prohibition Act.
6. The Applicant has filed the application under Section 457
of the Code of Criminal Procedure for release of the articles i.e. Alto
Car and mobile handset. However, the said application was rejected by
the learned Judicial Magistrate First Class, Achalpur on the ground that
the Applicant has breached the conditions imposed upon him while
4/8 16.Apl.788.2020 (Judg)
releasing his vehicle in Crime No.106 of 2019. It was held by the
learned Magistrate that, therefore, the Applicant is not entitled to get
released the said vehicle.
7. The Applicant has preferred Criminal Revision Application
No. 39/2020 against the Judgment and order dated 11/8/2020 in the
Sessions Court. On 15/9/2020 the learned Additional Sessions Judge,
Achalpur has partly allowed the said revision, thereby allowing the
prayer of the Applicant to the extent of release of mobile handset and
the prayer in respect of release of the vehicle was rejected.
8. Heard Mr. Agrawal, the learned Counsel for Applicant and
Ms. Haider, the learned APP for Non-applicant/State.
9. Mr Agrawal, the learned Counsel for Applicant vehemently
argued that the Applicant is in possession of valid license to purchase,
possess, transport, use and consume foreign liquor and country liquor,
and therefore, the orders passed by both the courts below are illegal
and perverse.
5/8 16.Apl.788.2020 (Judg)
10. In support of his contention, he placed reliance on the
Judgment in the case of Sunderbhai Ambalal Desai V/s State of Gujarat
reported in 2002(10) SCC 283.
11. Per contra, Ms. Haider, the learned APP vehemently
opposed the said Application and contended that both the courts below
have rightly rejected the prayer of the Applicant in respect of release of
the vehicle, in as much as the Applicant is in the habit of possessing
liquor in the vehicle, particularly during the COVID-19 pandemic
period. So also his permanent license was not produced before the
courts below. Perusal of the order passed by the Additional Sessions
Judge, Achalpur makes clear that the license was not produced before
the said court, and therefore, the court observed that when the alleged
incident took place on 22/7/2020, the Applicant had no valid license.
12. In the Judgment, relied upon by the learned Counsel for
the Applicant, the Hon'ble Apex Court in similar set of circumstances
has held that it is of no use to keep such seized vehicles at police
stations for a long period. It is for the Magistrate to pass appropriate
orders immediately by taking appropriate bond and guarantee as well
6/8 16.Apl.788.2020 (Judg)
as security for return of the said vehicle, if required at any point of
time. It is further observed that this can be done pending hearing of the
applications for return of such vehicles.
13. In the instant case, no doubt, the Applicant has failed to
produce the license before the courts below, therefore both the courts
below came to the conclusion that since the Applicant is not holding a
valid license, the vehicle needs to be seized. The Applicant has
produced the license. The license indicates that it was issued on
9/5/2019. It was a permanent license in respect of purchase, possess,
transport, use and consume foreign liquor and country liquor within
the State of Maharashtra. The learned APP does not dispute the said
license.
14. In view of the fact that the Applicant is having a valid
license and considering that he was found with liquor within the limits
of State of Maharashtra i.e. in Achalpur Tahsil, so also considering that
it is of no use to keep the vehicle at the police station for a long period
as there is likelihood of getting junk, the vehicle needs to be released
on certain conditions. Hence, the following order.
7/8 16.Apl.788.2020 (Judg)
ORDER
(i) Criminal Application is allowed.
(ii) The Judgment and order dated 15/9/2020 passed by the learned
Additional Sessions Judge, Achalpur in Criminal Revision
Application No. 39/2020 to the extent of rejection of the prayer
for release of Alto Car bearing registration No. MH-27/BE-0899
and the order dated 11/8/2020 passed by the learned Judicial
Magistrate First Class, Achalpur in Misc. Criminal Application
No. 691/2020 are hereby quashed and set-aside.
(iii) The seized vehicle i.e. Alto Car bearing registration No.
MH-27/BE-0899 be handed over to the Applicant till final
disposal of the case, on his executing a Bond in the sum of
Rs.1,00,000/-.
(iv) The Applicant shall execute a Bond of above amount in the name
of Police Station Officer, Paratwada. The concerned Police Station
Officer is directed to release and handover the custody of the
above vehicle to the Applicant on his due identification.
8/8 16.Apl.788.2020 (Judg)
(v) The Applicant shall not sell, transfer or alienate the vehicle or
create any third party interest in the said vehicle in any manner
till conclusion of the trial. He shall not change the colour or
identity of the said vehicle and shall produce the same as and
when required before the court or police agency.
15. Criminal Application stands disposed of, with the above
directions.
[MRS. SWAPNA JOSHI, J.]
Yadav VG
