Arpankumar Maheshbhai Vasava vs State Of Gujarat
2021 Latest Caselaw 1349 Guj

             R/SCR.A/332/2021                                      JUDGMENT




                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CRIMINAL APPLICATION NO. 332 of 2021


     FOR APPROVAL AND SIGNATURE:


     HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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     1   Whether Reporters of Local Papers may be allowed No
         to see the judgment ?

     2   To be referred to the Reporter or not ?                     No

     3   Whether their Lordships wish to see the fair copy No
         of the judgment ?

     4   Whether this case involves a substantial question No
         of law as to the interpretation of the Constitution
         of India or any order made thereunder ?

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                         ARPANKUMAR MAHESHBHAI VASAVA
                                     Versus
                               STATE OF GUJARAT
     ==========================================================
     Appearance:
     MR MANISH J PATEL(2131) for the Applicant(s) No. 1
     MR. RONAK RAVAL, APP for the Respondent(s) No. 1
     ==========================================================

      CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                  Date : 29/01/2021

                                  ORAL JUDGMENT

1. The petitioner has filed this application seeking to invoke extra ordinary jurisdiction to this Court under Articles 226 of the Constitution of India and also under Section 451 of the Code of Criminal Procedure to quash and set aside the order passed by the learned 7th Additional Civil Judge and Judicial Magistrate First Class, Vadodara in Criminal Miscellaneous Application No.

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2544 of 2020 dated 16.10.2020, and thereby prayed to release the muddamal vehicle - EECO Car bearing Registration No. GJ-06-HS-7838 in connection with the FIR being 11196009200627 of 2020 registered with Jawaharnagar Police Station, Vadodara City for the offences under the Gujarat Prohibition Act.

2. Heard learned advocate Mr. Manish J. Patel for the petitioner and learned APP Mr. H.K.Patel on behalf of the Respondent State of Gujarat through video conference.

Factual Matrix of the case:

3. It is the case of the petitioner that the petitioner is the owner of muddamal vehicle. It is submitted that by virtue of provisions of Section 98 of the Prohibition Act, there is clear embargo for handing over the custody of the vehicle used in the offence pending the trial and if the vehicle is lying at the Police Station for more time, there will be physical damage to it, therefore interference of this Hon'ble Court is required and therefore, this Court may be pleased to allow this application in the interest of justice.

4. It is contended that as per the allegations made in the FIR as per the secret information received by the investigating officers, the vehicle was seized as the vehicle in question was found with liquor and an FIR came to be registered under the Gujarat Prohibition Act.

5. It is also contended that petitioner has purchased the muddamal vehicle and the said vehicle is lying in Police Station in abandoned condition. Therefore, the present petition is filed for releasing captioned muddamal vehicle.

6. Learned advocate for the petitioner time and again vehemently submitted that the co-ordinate Bench passed the order in favour of the

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petitioner in identical cases. Further learned advocate for the petitioner has placed reliance upon the judgments of co-ordinate Bench (1) in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No. 5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated 26.06.2020, (5) in case of Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in Special Criminal Application No. 2692 of 2020 order dated 14.07.2020 and also placed reliance upon the judgment delivered by the Hon'ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003 SC 638.

7. Per contra, learned APP for the Respondent - State has vehemently argued that if the said muddamal vehicle is released, in that case there are all chances of committing the same offence in future under the Prohibition Act. Learned APP has placed on record the report of the I.O. which is is ordered to be taken on record. Further, learned APP has also placed reliance upon the judgment passed by this Court in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018 dated 05.04.2018. Order dated 12.06.2020 passed in Special Criminal Application No. 7631 of 2019, wherein contrary view has taken in releasing muddamal vehicle involved in the Gujarat Prohibition Act. Learned APP further contended that SLP (Cri.) No. 886 of 2018 is pending before the Hon'ble Apex Court in respect of the said issue, and therefore, no power would be exercise by this Court for releasing the vehicle seized by Police in the prohibition Offence. It is also contended that learned trial Court has rightly disallowed the muddamal application by invoking Section 98(2) of the Prohibition Act and Court below has no jurisdiction to pass order for interim

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release of muddamal vehicle when trial is pending in connection with offence under the Prohibition Act. Learned APP further urged that in view of Section 98(2) of the latest Prohibition Act, as well as, as per judgment passed by this Court in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat, the vehicle used in Probhition, where quantity is more than 10 liters, cannot be released. Further, learned APP also placed reliance upon judgment of Co ordinate Bench dated 15.12.2017 in Special Criminal Application No. 8521 of 2017.

8. Having heard the arguments advanced by both the sides, without determining the other issues in reference to Sections 98 and 99 and other provisions of the said Act, and reserving that to be determined in future in appropriate proceedings being contentious issue, this Court is not inclined to enter into that arena in the present matter and instead exercised the powers vested under Articles 226 and 227 of the Constitution.

9. The Coordinate Bench in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018 dated 05.04.2018 has also returned the captioned involved vehicle in the Prohibition Act under Articles 226 and 227 of the Constitution by exercising its powers even at initial stage.

10. Having heard the arguments advanced by both the sides, it would be worthwhile to refer profitably at this stage to the observations made by the Hon'ble Apex Court that within a period of six months from the date of production of the vehicle before the concerned Court, needful be done. Further, the Hon'ble Apex Court also 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

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not claimed by the owner or third person. If the Insurance company fails to take possession, the vehicle may be sold as per the direction of the Court. The Court would pass such orders, then within a period of six months from the date of production of such vehicle before the Court. It is also directed that before handing over such possession of vehicle, appropriate photographs of the said vehicle should be taken and detailed panchnama should also be prepared. The Hon'ble Apex Court also held that to specifically direct the concerned Magistrate would take immediate action for seeing powers under Section 451 of the Code and properly exercise and articles are not kept for long time at the Police Station, in any case, for not more than 15 days to one months. It is therefore, directed this object can also be achieved however, there should be proper supervision by the Registry of the concerned High Court in seeing that Rules framed by the High Court with regard to such articles are implemented properly.

11. It is nobody's case that same vehicle is used in all earlier offences, and therefore, the petitioner cannot be denied the interim possession of vehicle on the basis of the judgment of Hon'ble Supreme Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), this Court is inclined to exercise extraordinary powers under Articles 226 and 227 of the Constitution. This Court has perused the report of Investigating Officer as submitted by learned APP which is taken on record.

12. It observed by the Hon'ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), which reads 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.

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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."

13. This Court has assistance of orders passed by the co ordinate Bench in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No. 5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated 26.06.2020, wherein, muddamal vehicle was used in offences under the Prohibition Act released by this Court at many occasions.

14. Resultantly, in-fleri this application is allowed. The order passed by the passed by the learned 7th Additional Civil Judge and Judicial Magistrate First Class, Vadodara in Criminal Miscellaneous Application No. 2544 of 2020 dated 16.10.2020, is hereby set aside and the authority concerned is directed to release the vehicle of petitioner - EECO Car bearing Registration No. GJ-06- HS-7838 in connection with the FIR being 11196009200627 of 2020, registered with Jawaharnagar Police Station, Vadodara City, in the terms and conditions that the petitioner:

(i) Shall furnish, by way of security, bond as per valued cited in Panchnama or seizure memo and solvent surety of the equivalent amount;

(ii) Shall file an undertaking before the trial Court that prior to alienation or

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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 to produce the vehicle as an when directed by the trial Court;

(iv) Shall appear before the I.O. as and when called for and shall cooperate with the Investigating Agency.

(v) If the I.O. finds use of vehicle in such illegal activity by the present petitioner then this order shall stand cancel and the vehicle will be seized.

15. Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed Panchnama in that regard, if not already drawn, shall also be drawn for the purpose of trial and the ownership of the vehicle shall also be verified.

16. If, the I.O. finds it necessary, VIDEOGRAPHY of the vehicle also shall be done. Expenses towards the photographs and the videography shall be BORNE by the petitioner. This petition is allowed.

Rule is made absolute. The Registry is directed to communicate this order by Fax / by E-mail to the concerned Court and Police Station.

(A. C. JOSHI,J) J.N.W