Gujarat High Court

Rameshbhai Mansukhbhai Gohel vs State Of Gujarat on 18 January, 2021

Bench: Ashokkumar C. Joshi

       R/SCR.A/178/2021                                 JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 178 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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                   RAMESHBHAI MANSUKHBHAI GOHEL
                               Versus
                         STATE OF GUJARAT
==========================================================
Appearance:
MR SANDIP M PATEL(5649) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. MAITHILI MEHTA, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                           Date : 18/01/2021

                          ORAL JUDGMENT

1. The petitioner has filed this application seeking to invoke extra

ordinary jurisdiction to this Court under Articles 14, 19, 21 and 226

of the Constitution of India, mainly supervisory jurisdiction to

release the muddamal vehicle- Tata Tiago Four Wheeler bearing

RTO registration No. GJ-03-LG-8412 in connection with the FIR being

R/SCR.A/178/2021 JUDGMENT

CR No. 11213022201797 of 2020 registered with Jetpur City Police

Station, Rajkot, District - Rajkot (Rural) for the offence punishable

under Sections 65(e), 98(2) and 81 of the Gujarat Prohibition Act.

2. Heard learned advocate Mr. S. M. Patel for the petitioner and

learned APP Ms. Maithili Mehta on behalf of the Respondent State of

Gujarat through video conference.

2.1 Rule. Learned APP Ms. Maithili Mehta waives service of notice of

Rule for the Respondent State.

Factual Matrix of the case:

3. It is the case of the petitioner that the petitioner is the owner

of vehicle Tata Tiago Four Wheeler bearing RTO registration No. GJ-

03-LG-8412. The vehicle was seized in prohibition Case registered

with the aforesaid Police Station. It is also 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 in the FIR, the

vehicle was seized as liquor worth Rs. 56,00/- was found in the

R/SCR.A/178/2021 JUDGMENT

vehicle and accordingly, an FIR came to be registered.

5. It is also contended that petitioner has purchased vehicle- Tata

Tiago Four Wheeler bearing RTO registration No. GJ-03-LG-8412, and

at present 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 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

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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. Further, learned APP has submitted

the report of Investigating Officer and learned APP has also

submitted that the vehicle was used for transportation of illegal

liquor.

8. Further, learned APP has also placed reliance upon the

judgment passed by the Co-ordinate Bench 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

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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.

9. Having heard the arguments advanced by both the sides, while

determining the other issues raised by the learned APP in reference

to Sections 98 and 99 and other provisions of the said Act, and

referring 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.

10. 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.

R/SCR.A/178/2021 JUDGMENT

11. 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 within a period of six

months before concerned Court to needful be done. Further, the

Hon'ble Apex Court also to the extent of directing that where the

vehicle is not claimed by the accused, owner or the Insurance

Company or by third person which such vehicle may be ordered to

be auction 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 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. This Court

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has perused the report of Investigating Officer as submitted by

learned APP which is taken on record.

12. Further, 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.

13. 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.

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."

R/SCR.A/178/2021 JUDGMENT

14. 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, (5) in case of

Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in

Special Criminal Application No. 2692 of 2020 order dated

14.07.2020, wherein, muddamal vehicle was used in offences under

the Prohibition Act released by this Court at many occasions.