Gujarat High Court
A.K.Industries, Proprietary ... vs State Of Gujarat on 15 February, 2022
Bench: Vipul M. Pancholi
R/SCR.A/1726/2022 ORDER DATED: 15/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1726 of 2022
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A.K.INDUSTRIES, PROPRIETARY FIRM
THRO TRUPTIBEN BHIKHABHAI PANCHAL
Versus
STATE OF GUJARAT
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Appearance:
MR MANTHAN K BHATT(6549) for the Applicant(s) No. 1
MR LB DABHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 15/02/2022
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor waives
service of notice of Rule for respondents.
2. The petitioner has preferred this petition,
seeking to invoke extraordinary jurisdiction of
this Court under Article 226 and supervisory
jurisdiction under Article 227 of the Constitution
of India for the release of the muddamal vehicle
i.e. New Eicher Tampo of LIGHT GREY Colour having
Model No.91102272, Engine No.E416NCMJ363425 and
Chassis No.MC2EABRC0MJ497092.
3. Learned advocate for the petitioner submitted that
on registration of the FIR being C.R.
No.11196039210560/2021 registered with Nandesari
Police Station, Vadodara for the offences under
the provision of the Gujarat Prohibition Act, the
vehicle in question as well as other machines have
been seized as muddamal in connection with the
aforesaid offence.
R/SCR.A/1726/2022 ORDER DATED: 15/02/2022
4. Learned advocate for the petitioner submits that
the petitioner is shown as accused no.7 in the FIR
and, hence, he was arrested in the said FIR and,
thereafter, released on bail. Learned advocate for
the petitioner submitted that for the release of
the vehicle in question, the petitioner had
approached the concerned Magistrate Court under
Section 451 of the Criminal Procedure Code,
however, the concerned Magistrate passed an order
dated 24.01.2022, wherein the machines have been
released and interim custody of the machines have
been handed over to the petitioner, however
because of the bar as contained in Section 98(2)
of the Gujarat Prohibition Rules, the custody of
the vehicle in question has not been handed over
to the petitioner, copy of said order is placed on
record at Page No.25 of the compilation. At this
stage, it submitted that the petitioner is a
Proprietor of A.K. Industries and copy of retail
invoice, by which, the vehicle in question has
been purchased, is placed on record at Page No.34
of the compilation. He further, under the
instructions, submitted that till date, the
vehicle in question is not involved in any other
case and even no one has claimed for the interim
custody of the muddamal vehicle and if the interim
custody of the said vehicle is handed over to the
petitioner, he will abide by the conditions that
may be imposed by this Court while handing over
the vehicle. He, therefore, urged that this
petition may be allowed on suitable conditions.
5. Learned advocate for the petitioner has urged that
R/SCR.A/1726/2022 ORDER DATED: 15/02/2022
this Court has wide powers, while exercising such
powers under Article 226 of the Constitution. It
can also take into account the ratio laid down in
the case of 'SUNDERBHAI AMBALAL DESAI VS. STATE OF
GUJARAT', reported in AIR 2003 SC 638, wherein,
the Apex Court lamented the scenario of number of
vehicles having been kept unattended and becoming
junk within the police station premises. Learned
advocate has also placed reliance upon the orders
passed by the Coordinate Bench of this Court.
6. Learned APP for the respondent-State has strongly
objected the submissions made by learned advocate
for the petitioner and submitted that the vehicle
in question was used for transporting liquor by
the accused and if this motor vehicle would be
released, it will be used for transporting liquor
by the petitioner. However after referring to the
documents produced on record with regard
registration of certification and Identity Card,
it is submitted that the petitioner is the owner
of the vehicle.
7. On thus hearing both the sides, without
determining the other issues raised by the
petitioner, 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
choses not to enter into that arena in the present
matter and instead exercise the powers under
Articles 226 and 227 of the Constitution.
8. Further, from the submissions canvassed by learned
advocate for the petition, it is revealed that if
R/SCR.A/1726/2022 ORDER DATED: 15/02/2022
the vehicle in question is not released,
ultimately it would reduce to scrape and further
the land / space of the campuses of police
stations are also reduced to scrapyards. As
against this, continuing the vehicle in police
custody as muddamal, for various reasons, hardly
turns out to be a factor for furtherance of
dispensation of justice, on conclusion of the
trial, as and when that stage is reached.
9. The Co-ordinate Benches of this Court in number of
cases have released the vehicles, upon which
reliance has been placed by learned advocate for
the petitioner. This Court has taken into
consideration those decisions and the judgments /
orders referred in those decisions. Having
considered the same, taking any different view
would not be proper.
10. Resultantly, this application is allowed. The
authority concerned is directed to release the
vehicle of the petitioner, muddamal vehicle i.e.
New Eicher Tampo of LIGHT GREY Colour having Model
No.91102272, Engine No.E416NCMJ363425 and Chassis
No.MC2EABRC0MJ497092, on the terms and conditions
that the petitioner:
(i) furnish a solvent surety of the amount
equivalent to the value of the vehicle in
question as per the value disclosed in
the seizure memo or panchnama;
(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
R/SCR.A/1726/2022 ORDER DATED: 15/02/2022
be taken till conclusion of the trial;
(iii) shall also file an undertaking to
produce the vehicle as and when directed
by the trial Court;
(iv) in the event of any subsequent offence,
the vehicle shall stand confiscated .
(v) shall not use this vehicle in
transporting liquor in future.
(vi) 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.
(vii)If, the IO finds it necessary,
videography of the vehicle also shall be
done. Expenses towards the photographs
and the videography shall be borne by the
petitioner.
11. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(VIPUL M. PANCHOLI, J.)
Gautam
