Gujarat High Court
Hirabhai Punjabhai Bharai vs State Of Gujarat on 2 September, 2021
Bench: Ashokkumar C. Joshi
R/SCR.A/4842/2020 JUDGMENT DATED: 02/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4842 of 2020
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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HIRABHAI PUNJABHAI BHARAI
Versus
STATE OF GUJARAT
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Appearance:
MR SANDIP M PATEL(5649) for the Applicant(s) No. 1
MS CM SHAH APP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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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/4842/2020 JUDGMENT DATED: 02/09/2021
Two wheeler Hero HF Delux DRK bearing RTO registration
No. GJ-11-BL-9880 in connection with the FIR
No.11203004200958 of 2020 registered with 'C' Division
Police Station, District - Junagadh for the offence punishable
under Sections 65(E), 81, 98(2) and 116B of the Gujarat
Prohibition Act.
2. Heard learned advocate Mr. Sandip M Patel 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 Two wheeler
Hero HF Delux DRK bearing RTO registration No. GJ-11-BL-
9880. 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, on
05.06.2020, as per the secret information received by the
complainant that one Sura Kodiyater had kept liquor at new
house of Rajivnagar and on the base of said information, raid
R/SCR.A/4842/2020 JUDGMENT DATED: 02/09/2021
was carried out by police. It was found that foreign liquor
worth Rs.86,400/- were found from one Piyago auto rikshaw
and foreign liquor worth Rs.1,68,480/- from the house and
three motor cycle which were parked at faliya for the purpose
of delivery of the liquor. It is further contended that during
raid the Investigating Officer had seized one Two wheeler
Hero HF Delux DRK bearing RTO registration No. GJ-11-BL-
9880 and accordingly an FIR came to be registered.
5. It is also contended that petitioner has purchased the two
wheeler Hero HF Delux DRK bearing RTO registration No.
GJ-11-BL-9880, 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 after the
amendment in the Prohibition Act as per the provisions
contained in section 98(2) of the said Amended Act, the
learned Magistrate and the learned Sessions Judge does not
have jurisdiction to release the muddamal vehicle by
exercising power under section 451 of the Cr.PC in case of
muddamal vehivle which is alleged to be used in the
prohibition offences in which the quantity of liquor is more
than 10 liters. Under such circumstances, the present
petitioner is not having any other alternative remedy, except
filing of this petition before this Court, therefore, the present
petition is filed and prayed for releasing the captioned
muddamal vehicle.
R/SCR.A/4842/2020 JUDGMENT DATED: 02/09/2021
6. Earlier also this Court has issued Rule on 28.09.2020,
returnable on 09.10.2020. 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 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
R/SCR.A/4842/2020 JUDGMENT DATED: 02/09/2021
same offence in future under the Prohibition Act. 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 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
R/SCR.A/4842/2020 JUDGMENT DATED: 02/09/2021
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
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
R/SCR.A/4842/2020 JUDGMENT DATED: 02/09/2021
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
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
R/SCR.A/4842/2020 JUDGMENT DATED: 02/09/2021
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),
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/4842/2020 JUDGMENT DATED: 02/09/2021
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.
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 Two wheeler
Hero HF Delux DRK bearing RTO registration No. GJ-11-BL-
9880 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,
R/SCR.A/4842/2020 JUDGMENT DATED: 02/09/2021
(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,
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
