Rajendra Shankarlal Varma Thro ... vs State Of Gujarat
2021 Latest Caselaw 2192 Guj

         R/SCR.A/4278/2020                                          ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 4278 of 2020

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 RAJENDRA SHANKARLAL VARMA THRO POA ILYASBHAI BHIKKABHAI
                      KUSHKIWALA
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR. DHRUVIN U MEHTA(9993) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS M D MEHTA, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                             Date : 12/02/2021
                              ORAL ORDER

1. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order or direction for release of vehicle being Hyundai Grand i10 Car (unregistered) bearing Engine No. D3FAGM171098 and Chassis No. MALA851DLGM519274*J, seized as muddamal in connection with FIR being Prohibition C.R.No. III- 19 of 2017 registered with Dharampur Police Station, District Valsad under sections 65(E), 81, 98 and 99 of the Prohibition Act.

2. Heard the learned Advocate for the petitioner and learned APP Ms.M.D. Mehta for the respondent-State.

3. This Court vide order dated 29.01.2021 has called for verification report from the Investigating Officer. Learned APP Ms. Mehta submits that the same has been verified by the Investigating Officer.

4. Learned Advocate for the petitioner has submitted that in view of the restriction contained in section 98(2) of the Gujarat Prohibition Act, the

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Trial Court is precluded from releasing the custody of muddamal vehicle under section 451 of the Code of Criminal Procedure to the owner of the vehicle, hence, the applicant has no other remedy than approaching this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India. Learned Advocate for the petitioner has further relied upon various orders passed by Coordinate Benches of this Court, where vehicles seized in connection with offences under the Gujarat Prohibition Act, 1949, have been released and has submitted that such benefit may also be extended to the vehicle of the applicant.

5. The petitioner was not named as accused in the said complaint. It is submitted by learned Advocate for the petitioner that the petitioner is the owner of the vehicle in question.

6. Learned Advocate for the petitioner has further submitted that since there is no provision / procedure of safe keeping of seized vehicles in the Police Station, the said vehicles remain unused at the mercy of elements of nature and over a period of time deteriorate to such an extent that ultimately by the end of trial, the vehicle becomes completely useless. Thus contending the learned Advocate has prayed for release of the vehicle in question.

7. Learned APP has opposed this application. She has submitted that Section 98(2) of the Gujarat Prohibition Act contains restriction against releasing custody of a vehicle involved in an offence under the said Act. She has further relied upon the decision of this Court in case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat decided on 15.12.2017 in support of his contention. She has further submitted that there is all possibility that the vehicle would be used for commission of similar offences

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if the custody is given to the petitioner. Thus, submitting, she has prayed for rejection of this application. As regards decisions of the Coordinate Benches exercising jurisdiction under Article 226 for releasing vehicles, learned APP is not able to offer any justifiable reason as to why benefits as extended by Coordinate Benches of this Court to the applicants therein should not be made available to the applicant herein.

8. Having heard learned Advocates appearing for the parties and having gone through the material on record, it prima facie appears that there is no dispute with regard to the ownership of the vehicle in question. It also does not appear that the vehicle concerned had been seized / detained in connection with any offence including any offence under the Prohibition Act prior to present seizure / detention.

9. That the vehicle in question was detained as muddamal in connection with a complaint, which is lodged for offences under the Prohibition Act. Though the provisions of the Gujarat Prohibition Act, 1949 imposes a restriction upon release, however, this Court is of the view that no fruitful purpose would be achieved by not releasing the vehicle in question. Further this Court is of the opinion that, by imposing appropriate conditions to achieve a balance between the rights of the parties the vehicle in question can be released. For the purpose of arriving at this conclusion, this Court has taken assistance of the decisions of the Coordinate Benches to which there is no distinguishable view of this Court. Since decisions of Coordinate Benches have been considered by this Court, few relevant observations contained in one of the decisions, i.e. from a judgment dated 12.6.2019 passed in Special Criminal Application No.7631 of 2019 of a Coordinate Bench are quoted herein below.:

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

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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.

10. 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, has also returned the vehicle recently under Articles 226 and 227 of the Constitution, exercising its powers to do that even at an initial stage.

10.1 It would be worthwhile to refer profitably at this stage to the observations made by the 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.

16. 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.

17. In our view, whatever be the situation, it is of no use to keep such seized 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."

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10.2 The 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 Apex Court also held and specifically directed hat 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.

10. In view of the aforesaid observations, which view is being consistently followed as observed in various decisions by Coordinate Benches of this Court, this Court is inclined to consider the request of the petitioner.

11. Thus, in view of the discussion and observations present petition is allowed. The authority concerned is directed to release the vehicle in question belonging to the petitioner, i.e. Hyundai Grand i10 Car (unregistered) bearing Engine No. D3FAGM171098 and Chassis No. MALA851DLGM519274*J, on the following terms and conditions that petitioner:

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(i) shall furnish, by way of security, bond of Rs.4,00,000/- and solvent surety of the equivalent amount.

(ii) shall file an undertaking before the Trial Court that the petitioner shall not transfer, alienate or use the vehicle in question in any manner which would violate the prohibition law till the trial is over and in case of exigency, alienation or transfer shall not be effected without specific prior permission of the concerned Court.

(iii) The petitioner is also directed to file an undertaking to produce the vehicle in question as and when directed by the concerned Trial Court.

(iv) The petitioner shall not change the colour and scheme of the vehicle.

(v) It is made clear that in the event of any subsequent offence of this nature, the vehicle in question shall stand confiscated forthwith.

(vii) Before handing over the possession of the vehicle in question, necessary photographs shall be taken and detailed panchnama in that regard shall be drawn and to be produced on the record of the case.

(viii) Additionally, if the I.O. finds it necessary, videography shall also be done at the cost of the petitioner.

Rule is made absolute to the aforesaid extent. Registry is directed to communicate this order by fax or e-mail to the concerned authority.

(NIKHIL S. KARIEL,J) BDSONGARA