Dabhi Jagdishbhai Vinubhai vs State Of Gujarat
2021 Latest Caselaw 683 Guj

       R/SCR.A/228/2021                                        JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 228 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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                          DABHI JAGDISHBHAI VINUBHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
A R SHAH(7768) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MAITHILI MEHTA for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                Date : 19/01/2021

                               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,

mainly supervisory jurisdiction so also inherent powers under Section 482 of

R/SCR.A/228/2021 JUDGMENT

the Code of Criminal Procedure to quash and set aside the order passed by the

learned 4th Additional Sessions Judge, Surendranagar in Criminal Revision

Application No. 36/2020 dated 21.11.2020 confirming the order passed by the

learned Judicial Magistrate First Class, Chotila, and thereby prayed to release

the muddamal vehicle - Bolera Pick Up Car bearing Registration No. GJ - 3 -

BW - 2149 in connection with the FIR 1121009200190/2020 registered with

Chotila Police Station District - Surendranagar for the offences under the

Gujarat Prohibition Act.

2. Heard learned advocate Mr. A.R.Shah for the petitioner and learned

APP Ms. Maithili Mehta on behalf of the Respondent State of Gujarat through

video conference.

Rule. Learned APP waives services of notice of Rule on behalf of the

Respondent - State of Gujarat.

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.

R/SCR.A/228/2021 JUDGMENT

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.

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

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

R/SCR.A/228/2021 JUDGMENT

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,

however, learned APP has fairly submitted that the petitioner is not named in

the FIR and there are no antecedents against the Petitioner. 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 release of muddamal vehicle when

trial is pending in connection with offence under the Prohibition Act. Learned

R/SCR.A/228/2021 JUDGMENT

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.

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

R/SCR.A/228/2021 JUDGMENT

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 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

R/SCR.A/228/2021 JUDGMENT

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.

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

R/SCR.A/228/2021 JUDGMENT

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 4th Additional Sessions Judge, Surendranagar in Criminal Revision

Application No. 36/2020 dated 21.11.2020 confirming the order passed by the

learned Judicial Magistrate First Class, Chotila, is hereby set aside and the

authority concerned is directed to release the vehicle of petitioner - Bolera Pick

Up Car bearing Registration No. GJ - 3 - BW - 2149 in connection with the

FIR 1121009200190/2020 registered with Chotila Police Station District -

Surendranagar 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

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.

R/SCR.A/228/2021 JUDGMENT

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.

17. Rule is made absolute. The Registry is directed to communicate this

order by Fax / by E-mail to the concerned Court and Police Station.

(DR. ASHOKKUMAR C. JOSHI,J) J.N. W