Gujarat High Court
Hiren Dilipbhai Vyas vs State Of Gujarat on 19 January, 2021
Bench: Ashokkumar C. Joshi
R/SCR.A/238/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 238 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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HIREN DILIPBHAI VYAS
Versus
STATE OF GUJARAT
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Appearance:
MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1
for the Respondent(s) No. 2
PUBLIC PROSECUTOR(2) 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/238/2021 JUDGMENT
the Code of Criminal Procedure to quash and set aside the order passed by the
learned Principal District & Sessions Judge, Valsad in Criminal Revision
Application No. 42/2020 dated 15.10.2020 confirming the order passed by the
learned Judicial Magistrate First Class, Valsad, and thereby prayed to release
the muddamal vehicle - Maruti Ertiga ZDI Car bearing Registration No. GJ -
05 - JC - 7209 in connection with the FIR No. III CR 135/2019 registered with
Dungari Police Station, District Valsad for the offences under the Gujarat
Prohibition Act.
2. Heard learned advocate Mr. K.H.Daiya 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/238/2021 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.
R/SCR.A/238/2021 JUDGMENT
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,
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
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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
R/SCR.A/238/2021 JUDGMENT
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
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
R/SCR.A/238/2021 JUDGMENT
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.
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
R/SCR.A/238/2021 JUDGMENT
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 Principal District & Sessions Judge, Valsad in Criminal Revision
Application No. 42/2020 dated 15.10.2020 confirming the order passed by the
learned Judicial Magistrate First Class, Valsad, is hereby set aside and the
authority concerned is directed to release the vehicle of petitioner - Maruti
Ertiga ZDI Car bearing Registration No. GJ - 05 - JC - 7209 in connection
with the FIR No. III CR 135/2019 registered with Dungari Police Station,
District Valsad, 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
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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.
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
