Santoshkumar Babubhai Patel vs State Of Gujarat
2021 Latest Caselaw 13197 Guj

    R/SCR.A/1856/2021                              JUDGMENT DATED: 02/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 1856 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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                        SANTOSHKUMAR BABUBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR BH SOLANKI(5353) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS CM SHAH APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 02/09/2021

                              ORAL JUDGMENT

1. The petitioner has filed this application seeking to invoke

extra ordinary jurisdiction to this Court under Articles 226

and 227 of the Constitution of India, mainly supervisory

jurisdiction so also inherent powers under Section 482 of the

Code of Criminal Procedure to release the muddamal vehicle-

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

Renault Duster bearing RTO registration No. GJ-15-CA-8018

in connection with the FIR No. III- 102 of 2019 registered

with Navsari rural Police Station, District - Navsari for the

offence punishable under Sections 65(A)(E), 81, 98(2) of the

Gujarat Prohibition Act.

2. Heard learned advocate Mr. BH Solanki for the petitioner

and learned APP Ms. CM Shah on behalf of the Respondent

State of Gujarat through video conference.

Factual Matrix of the case:

3. It is the case of the petitioner is the owner of Renault Duster

bearing RTO registration No. GJ-15-CA-8018. It is the case of

the petitioner that the learned Court below has rejected

release of muddamal application, only because of restriction

under Section 98(2) of the Prohibition Act but vehicle lying at

the Police Station for more time, otherwise there will be

physical damage to it, therefore interference of this Hon'ble

Court is required and therefore, this Court may please to

allow this application in the interest of justice.

4. It is contended that as per the allegations in the FIR, above

10 liters of liquor was found in the vehicle of the petitioner. It

is also contended that during raid the Investigating Officer

had seized one Renault Duster bearing RTO registration No.

GJ-15-CA-8018 and accordingly an FIR came to be registered.

5. It is also contended that petitioner has purchased Renault

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

Duster bearing RTO registration No. GJ-15-CA-8018 which is

the earning means of the petitioner and present the said

vehicle is lying in Police Station in abandon condition. It is

also contended that one application for releasing the said

muddamal has been preferred before the Additional Judicial

Magistrate First Class, Navsari, but the same was rejected

and thereafter petitioner preferred Criminal Revision

Application No. 43 of 2020 before the Learned Sessions

Judge, Navsari and the same application was also rejected,

therefore, the present petition is filed to set aside the orders

and also prayed for releasing captioned muddamal vehicle.

6. Earlier also this Court has issued Rule on 20.02.2021,

returnable on 16.03.2021. 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

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

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.

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. Therefore,

learned Trial Court has rightly disallowed the muddamal

application. Further, learned APP has also placed reliance

upon the judgment passed by this Court (Coram: J. B.

Pardiwala, J) 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

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

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 (Coram: J. B. Pardiwala,

J) 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,

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.

9. With respect, this Court (Coram: J. B. Pardiwala, J) in case of

Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

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 to do that 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 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

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

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

has perused the report of Investigating Officer as submitted

by learned APP which is taken on record.

11. Further, learned APP has heavily placed reliance upon

the earlier few offences registered upon the petitioner for

that this Court has taken note of the same but with respect it

is nobody's case that same vehicle is used in all earlier

offences and therefore, merely antecedents of few offences

upon the petitioner cannot deny the interim possession of

vehicle to the petitioner 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.

12. It observed by the Hon'ble Apex Court in case of

Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra),

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

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 Kirtisinh

vs. State of Gujarat in Special Criminal Application No.

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

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

authority concerned is directed to release the vehicle of

petitioner Car - Renault Duster bearing RTO registration No.

GJ-15-CA-8018 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) 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,

R/SCR.A/1856/2021 JUDGMENT DATED: 02/09/2021

shall also be drawn for the purpose of trial.

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.

17. This petition is allowed. Rule is made absolute. The

Registry is directed to communicate this order by Fax / by E-

mail to the concerned Court and Police Station.

(A. C. JOSHI,J) Radhika