Gujarat High Court
Jay Ishwarlal Navsariwala vs State Of Gujarat on 20 January, 2021
Bench: Ashokkumar C. Joshi
R/SCR.A/344/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 344 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 to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JAY ISHWARLAL NAVSARIWALA
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
MS MAITHALI MEHTA APP for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 20/01/2021
ORAL JUDGMENT
1. The petitioner has filed this petition seeking to invoke
extra ordinary jurisdiction of this Court under Articles 226 and
227 of the Constitution of India and inherent powers under
section 482 of the Criminal Procedure Code, 1973 (Code)
R/SCR.A/344/2021 JUDGMENT
seeking to release the muddamal vehicle - Chevrolet Beat Car
bearing RTO registration No. GJ-05-JL-8118 in connection with
the FIR being III-C.R. No. -481/2019, registered before the
Mandvi Police Station, District - Surat Rural for the offence
punishable under Sections 65(A)(E), 81, 116-B and 98(2) of the
Gujarat Prohibition Act. The petitioner had preferred Muddamal
Application before the learned Additional Chief Judicial
Magistrate Mandvi by an order dated 04.09.2020 rejected the
said application, against which, the petitioner preferred Criminal
Revision Application No. 33 of 2020 before the learned 2nd
Additional Sessions Judge, Surat, who, by an order dated
23.10.2020 also rejected the said revision.
2. Heard learned advocate Mr.Kishan H Daiya for the
petitioner and learned APP Ms Maithali Mehta on behalf of the
respondent - State through video conference.
Factual Matrix of the case:
3. As per the allegations made in the FIR, liquor was found in
the muddamal vehicle. It is the case of the petitioner that the
petitioner is the owner of the muddamal vehicle in question. It is
further the case of the petitioner that the learned Courts below
have rejected the release of muddamal applications, only
because of restriction under Section 98(2) of the Prohibition Act
and if the muddamal vehicle would lie at the police station for
more time, there will be physical damage to it and therefore,
interference of this Hon'ble Court is required in the interest of
justice.
3.1 It is contended that the muddamal vehicle was seized by
the police as the liquor was found in the muddamal vehicle and
the offence, as aforesaid, came to be registered.
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3.2 It is also contended that the petitioner has purchased the
muddamal vehicle with aforesaid registration number. That, at
present the said vehicle is lying at the police station in
abandoned condition. It is also contended that learned trial
Court had rejected the muddamal application and thereafter, the
learned Sessions Judge also confirmed the said order and
therefore, the present petition is filed with a prayer to set aside
the orders passed by the learned Courts below and also prayed
for releasing the aforesaid muddamal vehicle.
3.3 The learned advocate for the petitioner time and again
vehemently submitted that the Coordinate 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 Coordinate 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
Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003
SC 638.
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4. Per contra, learned APP for the respondent - State has
vehemently argued that the quantity of liquor is huge and if the
muddamal vehicle is released, in that case there are all chances
of committing the same offence in future under the Prohibition
Act. Learned APP has submitted report of the Investigating
Officer. Therefore, learned trial Court has rightly disallowed the
muddamal application. 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 been
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
exercised 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 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 (supra), the vehicle
used in Prohibition, where quantity is more than 10 liters,
cannot be released. Further, learned APP also placed reliance
upon judgment of Coordinate Bench dated 15.12.2017 in Special
Criminal Application No. 8521 of 2017.
5. Having heard the arguments advanced by both the sides,
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without determining the other issues raised 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 is not inclined
to enter into that arena in the present matter and instead,
exercise the powers vested under Articles 226 and 227 of the
Constitution.
5.1 In the case of Anilkumar Ramlal @ Ramanlaji Mehta
Vs. State of Gujarat in Special Criminal Application No. 2185
of 2018, by order dated 05.04.2018, this Court has also released
the vehicle involved in the Prohibition Act under Articles 226
and 227 of the Constitution by exercising its powers even at
initial stage.
6. 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 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 a 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 order 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 possession
of such vehicle, appropriate photographs of the said vehicle
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should be taken and a detailed panchnama should also be
prepared. The Hon'ble Apex Court also held and specifically
directed that the 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
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.
6.1 Learned APP has submitted the report of the IO, which has
been taken into consideration by this Court. Further, it is
nobody's case that same vehicle is used earlier in any offence
and therefore, the petitioner cannot be denied the interim
possession of vehicle 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. It is observed by the Hon'ble Apex Court in case
of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra),
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
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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."
6.2 This Court has assistance of orders passed by the
Coordinate 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.
R/SCR.A/344/2021 JUDGMENT
7. Resultantly, in-fleri the petition succeeds and is allowed.
The order passed by the learned Additional Chief Judicial
Magistrate Mandvi by an order dated 04.09.2020 and Criminal
Revision Application No. 33 of 2020 before the learned 2nd
Additional Sessions Judge, Surat, by an order dated 23.10.2020
are hereby set aside. The authority concerned is directed to
release the aforesaid vehicle of petitioner bearing RTO
registration No. GJ-05-JL-8118 on the terms and conditions that
the petitioner:
a) shall furnish, by way of security, bond as per valued
cited in Panchnama or seizure memo and solvent surety of
the equivalent amount;
b) 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;
c) shall also file an undertaking to produce the vehicle
as an when directed by the trial Court;
d) if the IO finds use of vehicle in any illegal activity by
the present petitioner then this order shall stand cancelled
and the vehicle will be seized;
e) shall appear before the IO, as and when called for
and cooperate with the investigating agency.
f) the trial court shall verify the ownership of the vehicle
before releasing the same.
7.1 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.
7.2 If, the IO finds it necessary, VIDEOGRAPHY of the vehicle
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also shall be done. Expenses towards the photographs and the
videography shall be BORNE by the petitioner.
7.3 Prior to release of the muddamal vehicle, the trial Court
concerned shall verify the ownership of the same.
8. Rule is made absolute to the aforesaid extent. Direct
service is permitted through fax / e-mail / any other electronic
mode.
8.1 The Registry is directed to communicate this order by fax /
e-mail to the concerned Court and police station.
(DR. ASHOKKUMAR C. JOSHI,J)
Radhika
