Ashwin Prakashbhai Salve vs State Of Gujarat
2023 Latest Caselaw 4185 Guj

      R/SCR.A/994/2020                                     ORDER DATED: 08/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 994 of 2020

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                           ASHWIN PRAKASHBHAI SALVE
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR SALIM M SAIYED(5172) for the Applicant(s) No. 1
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 08/06/2023

                                  ORAL ORDER

1. The petitioner has preferred this petition under

Articles 226/227 of the Constitution of India, for the release

of the muddamal vehicle i.e. Bajaj autorickshaw bearing

Registration No.GJ-27-Y-2414, which is seized as muddamal

in connection with the FIR being Prohi.C.R.No.5353 of 2019

registered with Bapunagar Police Station, Ahmedabad city, for

the offences punishable under the provisions of the Gujarat

Prohibition Act.

2. Rule. Learned APP waives service of notice of rule

for the respondent - State.

3. Learned advocate for the petitioner submitted that

the said vehicle is duly registered with the Transport

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Department of the Government and in support of it, RC Book

is placed on record. He has submitted that the petitioner is

the owner of the vehicle in question. He further, under the

instructions, submitted that the petitioner is the registered

owner of the vehicle in question and till date, the vehicle in

question is not involved in any other case and even no one

has claimed for the interim custody / 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.

4. Learned advocate for the petitioner submits that

for the release of the vehicle in question, the petitioner had

approached the concerned Magistrate Court, however, the said

application came to be rejected by an order dated 16.11.2019

and, hence, the petitioner had approached the concerned

Revisional Court against the said order, which also came to

be rejected by an order dated 23.12.2019 and, therefore, the

present petition is filed for the release of the vehicle in

question. Therefore, the petitioner has no other remedy but

to approach this Court invoking extraordinary jurisdiction

under Article 226 of the Constitution of India.

R/SCR.A/994/2020 ORDER DATED: 08/06/2023

5. Learned advocate for the petitioner has urged that

this Court has wide powers under Article 226 of the

Constitution. It can also take into account the ratio laid

down in the case of Sunderbhai Ambalal Desai versus 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

vehicle would be released, it will be used for transporting

liquor by the petitioner. It is submitted that the petitioner is

the owner of the vehicle. As regards decisions of the

Coordinate Benches exercising jurisdiction under Article 226

of the Constitution of India for releasing vehicles, learned

APP is not able to offer any justifiable reason as to why

benefits as extended in other cases, should not be made

available to the petitioner herein.

7. On hearing both the sides, without determining

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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 chooses 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 petitioner, it is revealed that if the

vehicle in question is not released, ultimately it would reduce

to scrap and further the land / space of the campus of the

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, if remains.

9. The Co-ordinate Benches of this Court in number

of cases have released the vehicles. This Court has taken

into consideration those decisions and the judgments / orders

referred to 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

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petitioner - muddamal vehicle i.e. Bajaj autorickshaw bearing

Registration No.GJ-27-Y-2414 on the terms and conditions

that the petitioner :

(i) shall 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 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

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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.

(SANDEEP N. BHATT,J) M.H. DAVE