Gujarat High Court
H.D.B. Financial Limited Thro ... vs State Of Gujarat on 29 January, 2021
Bench: Ashokkumar C. Joshi
R/SCR.A/335/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 335 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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H.D.B. FINANCIAL LIMITED THRO MEHULKUMAR G. THAKOR
Versus
STATE OF GUJARAT
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Appearance:
DHRUVIK K PATEL(7769) for the Applicant(s) No. 1
KALPESH R PATEL(7896) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR. RONAK RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 29/01/2021
ORAL JUDGMENT
1. Heard learned advocate Mr. Dhruvik K. Patel for the Petitioner and
learned APP Mr. Ronak Raval for the respondent- State through video
conference.
R/SCR.A/335/2021 JUDGMENT
2. 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.
3. This petition is preferred seeking release of the vehicle -
Mahindra Bolero Maxi Truck bearing registration No. MH 04 JK 9690, which
is seized in connection with Prohibition CR No. 556 of 2019 registered with
Navsari Rural Police Station, District - Navsari.
4. It is the case of the petitioner that petitioner is the owner of the
aforesaid vehicle and it is duly registered with the transport
department of the Government. He is, therefore, before this Court.
5. The case of the prosecution is that while the police
personnels were on patrolling, they received a secret information of the vehicle
in question carrying liquor and when police authorities intercepted the
same, on carrying out the search of the said vehicle, its driver was found
carrying liquor without any pass or permit. Therefore, an FIR came to be
lodged for the offence under the Gujarat Prohibition Act.
6. Learned advocate for the petitioner time and again vehemently
submitted that the co-ordinate Bench passed the order in favour of the
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
R/SCR.A/335/2021 JUDGMENT
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 has opposed the release of muddamal
vehicle so involved in the offence and submitted that appropriate orders may be
passed. He has placed on record the report of the I.O. which 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 was also contended that learned trial Court had rightly
disallowed the muddamal application in that case by invoking Section 98(2) of
the Prohibition Act and Court below has no jurisdiction to pass order for
interim 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.
R/SCR.A/335/2021 JUDGMENT
8. On thus hearing both the sides, without determining the other
issues raised by the petitioner, in reference to Sections 98 and 99 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. Moreover,
lying of the vehicle with the police station is of no use to anybody but in fact is
a national waste and ultimately it is a loss to public exchequer and loss to the
government if the vehicle is not released.
9. It is nobody's case that same vehicle is used in all earlier offences and
therefore, merely antecedents of few offences upon the petitioner cannot deny
the interim possession of vehicle to the petitioner and 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.
10. This Court 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 and in the case of
in 'PRAVINBHAI CHHAGANBHAI PARMAR VS. STATE OF GUJARAT'
(Supra) in Special Criminal Application No. 7761 of 2018, Dated: 07.09.2018
has also released the vehicle recently under Articles 226 and 227 of the
Constitution, exercising its powers to do that even at an initial stage.
10.1 This Court has also referred the order passed by the co-ordinate Bench
in Special Criminal Application No. 200/2019 dated 18.01.2019 wherein the
Court has released the vehicle Auto rickshaw. Further this Court has also
referred to the order passed by this Court dated 10.04.2018 in Special Criminal
Application No 2469/2018 wherein the order passed by the revisional Court is
quashed and set aside and the muddamal vehicle Xylo car involved in the
R/SCR.A/335/2021 JUDGMENT
offence is released.
10.2 It would be worthwhile to refer profitably at this stage to the
observations made by the Hon'ble 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."
10.3 The Hon'ble 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
R/SCR.A/335/2021 JUDGMENT
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
Hon'ble Apex Court also held and specifically directed that 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.
11. Resultantly, this application is ALLOWED. The authority
concerned is directed to RELEASE the vehicle of the petitioner, being
vehicle Mahindra Bolero Maxi Truck bearing registration No. MH 04 JK
9690, which is seized in connection with Prohibition CR No. 556 of 2019
registered with Navsari Rural Police Station, District - Navsari, on the terms
and conditions that the petitioner:
(i) shall furnish a solvent surety of the amount equivalent to the value of
vehicle in question before the trial Court as per the value disclosed in the
seizure memo or pachnama.
(ii) shall file an undertaking before the trial Court that prior to alienation
or transfer, alienate, part with the possession of the vehicle or create any
charge over the vehicle 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 and when
R/SCR.A/335/2021 JUDGMENT
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) in the event of any subsequent offence, the vehicle shall stand
CONFISCATED.
11.1 Before handing over the possession of the vehicle to the
petitioner, necessary photographs shall be taken and a detailed
panchnama with respect to ownership of the vehicle, if not already drawn, shall
also be drawn for the purpose of trial.
11.2 If, the IO finds it necessary, VIDEOGRAPHY of the vehicle also
shall be done. Expenses towards the photographs and the
videography shall be BORNE by the petitioner.
Rule is made absolute, accordingly. Direct service is permitted
through fax/ e-mail.
(A. C. JOSHI,J)
J.N.W
