Raghubhai Bhudarbhai Galthara vs State Of Gujarat
2021 Latest Caselaw 446 Guj

        R/SCR.A/8120/2020                                  ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/SPECIAL CRIMINAL APPLICATION NO. 8120 of 2020
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                  RAGHUBHAI BHUDARBHAI GALTHARA
                              Versus
                        STATE OF GUJARAT
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Appearance:
RIKINKUMAR R PATEL(9470) for the petitioner(s) No. 1
MR. MANAN MEHTA, APP for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 13/01/2021
                    ORAL ORDER

Rule. Learned APP waives service of notice of rule for

and on behalf of respondents.

What is challenged in the present writ petition under

Articles 226 and 227 of the Constitution of India is the order

dated 05.11.2020 passed by learned Additional Sessions

Judge, Surendranagar as well as order dated 12.10.2020

passed by learned Judicial Magistrate First Class, Vadhwan,

Dist­Surendranagar rejecting the prayer of handing over

muddamal article having quantity of 889.300 Kg in connection

with the FIR being C.R. No.11211055200480 of 2020

registered with Vadhwan Police Station, Dist­ Surendranagar

for the offence under the provisions of Prohibition Act, 1949

('the Act' for short). Being aggrieved by the same, the

R/SCR.A/8120/2020 ORDER

petitioner has preferred the present petition under Article 227

of the Constitution of India.

It is contended by learned advocate for the petitioner that

learned trial Court as well as revisional Court have not handed

over interim custody of the article in question in view of the

provisions of Section 98 of the Act which provides embargo for

handing over the custody of the article found in the offence

pending the trial. It is, therefore, requested that appropriate

directions should be given to the concerned Magistrate/Trial

Court who is dealing with such questions to hand over such

article to its owner or to the person from whom the said article

is seized by taking appropriate bond/guarantee/solvent surety

for the return of the said article if required by the Court at any

point of time.

Learned advocate for the petitioner submits that this

article would be used by the petitioner for animal purpose not

for human purpose. He has also submitted the invoice of

muddamal article, which was purchased by the petitioner on

28.09.2020 from Shree Swami Traders, Surenderanagar to the

R/SCR.A/8120/2020 ORDER

tune of Rs.32,085/­ only.

On the other hand, learned APP vehemently submitted

that there is embargo under Section 98 of the Act to release

the muddamal article used in the offence and while

interpreting the provisions of law, the Co­ordinate Bench of

this Court in the case of Pareshkumar Jaykarbhai

Brahmbhatt Vs. State of Gujarat decided on 15.12.2017 held

that in view of the embargo, the Magisterial Court as well as

Revisional Court have no jurisdiction to handover custody of

the article used in the offence as per the provisions of Section

451 of the Code of Criminal Procedure, 1973. Lastly, he

requested this Court to dismiss the present petition in limine.

Considering the facts and circumstances of the present

case as well as that prima facie, the petitioner appears to be

the owner of article and the arguments advanced by learned

advocate for the respective parties, it can be seen that the

present matter is squarely covered by the decision rendered by

this Court in Special Criminal Application No. 7642 of 2018

(Hardikbhai Mukeshbhai Chauhan Vs. State of Gujarat)

R/SCR.A/8120/2020 ORDER

decided on 05.09.2018. petitioner has also produced xerox

copy of invoice of his article regarding its purchase as well as

certificate issued by Sarpanch of the concerned village stating

that the petitioner is having shop of grocery since many years.

It further appears that the muddamal article was purchased by

the petitioner from Shree Swami Traders, Surendranagar on

28.09.2020 to the tune of Rs.32085/­ only and this invoice was

issued in favour of the present petitioner. No purpose would be

served for the prosecution also keeping this muddamal article

in the police station for indefinite period. Of course the

petitioner shall not use it for human purpose. Hence, prayer

made by the petitioner requires consideration.

The judgment and order dated 05.11.2020 passed by the

learned 4th Additional Sessions Judge, Surendranagar in

Criminal Revision Application No.28 of 2020 as well as

judgment and order dated 12.10.2020 passed by learned

Judicial Magistrate First Class, Vadhwan below Exh.1

application stands quashed and set aside.

In the result, this petition is allowed. The learned trial

R/SCR.A/8120/2020 ORDER

Court concerned is directed to immediately release the

muddamal article in connection with the FIR being C.R.

No.11211055200480 of 2020 registered with Vadhwan Police

Station, Dist­ Surendranagar after due verification. Learned

Judicial Magistrate shall inquire as regards entitlement as to

whether he is the owner of article or not and following the

procedure as it thinks necessary as provided under section 451

of the Code of Criminal Procedure 1973 and on the petitioner

fulfilling the following condition:

(i) The petitioner shall furnish a solvent surety of the amount equivalent to the value of the article in question as per the value disclosed in the seizure memo or panchnama;

With the above, this petition is disposed of. Rule is made

absolute to the aforesaid extent.

Registry to communicate this order to the concerned

Court/ authority through Fax and Email.

(B.N. KARIA, J) SUYASH