Gujarat High Court
State Of Gujarat vs Hardikbhai Harsukhlal Vadher on 1 April, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1457 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
HARDIKBHAI HARSUKHLAL VADHER
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Appearance:
MR.L.B. DABHI, LD. APP for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 01/04/2024
ORAL JUDGMENT
1. The respondent No.1, although served with the notice
rule issued by this Court, yet has chosen not to appear before
this Court either in person or through an advocate and oppose
the present application.
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2. By way of this application, the applicant-State seeks to
invoke the extraordinary jurisdiction of this Court under Article
226 and supervisory jurisdiction under Article 227 of the
Constitution of India so also inherent powers under Section
482 of the Code of Criminal Procedure, 1973, praying for
quashing of the order dated 18.11.2017 passed by learned 9 th
Additional Sessions Judge, Surat below Exh.4 in Criminal Misc.
Application No.378 of 2017 and to confirm the order dated
25.09.2017 passed in relation to offence registered at Kamrej
Police Station being III-C.R. No.421 of 2017 by the learned
Judicial Magistrate, First Class, Kathor.
3. The facts giving rise to the present application may be
summarized as under;
3.1 One Ranchhodbhai Kababhai, an Unarmed Police
Constable, Buckle No.878, serving at S.O.G. Branch, Surat
lodged a first information report stating that while he was on
patrolling duty along with the other police staff, at that time,
he received a discreet information from the reliable sources
that one grey coloured Eco Car bearing its registration No.GJ-
05-JL-9205 containing bottles of foreign made liquor would
come from Vapi and reach to Surat by passing through
National Highway No.8 and Kamrej Cross Road. Acting upon
the same, a trap was arranged on the Kamrej Cross Road
heading towards Surat and intercepted the vehicle under
information. Two persons were found to be there sitting in the
vehicle in question, and upon asking about their identities,
they identified themselves as Prakasbhai Rasikbhai Popat and
Vinaybhai Niranjanbhai Dave. Thereafter, during the course of
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a search, four plastic made sacks were found lying there
below the middle and last seat from which total 56 bottles of
foreign made liquor worth Rs.26,560/- were recovered from the
possession of the accused which was being transported
without any valid permit. The police also seized the alleged
Eco Car. Accordingly, offence under Sections 65(e), 98(2) and
81 of the Prohibition Act was registered.
4. Learned APP Mr. L.B. Dabhi appearing for the applicant-
State of Gujarat submits that a complaint came to be
registered by a public servant serving in the police department
as a head constable being C.R. No.III-421 of 2017 for the
offence punishable under Sections 65(e), 98(2) and 81 of the
Prohibition Act alleging illegal transportation of the prohibited
liquor by the accused persons. It is alleged in the FIR that
pursuant to the discreet information received by the police, a
trap was made wherein one vehicle was intercepted by the
police containing number of bottles of prohibited liquor which
was then seized by the police. Learned APP Mr. Dabhi further
submits that, therefore, the owner of the said vehicle filed an
application under section 451 of Cr.P.c before the learned
Judicial Magistrate, First Class, Kathor for interim release of the
said vehicle by producing all the relevant materials regarding
the ownership of the vehicle. After hearing both the parties
and appreciating all the materials available on record, the
learned Magistrate rejected the said application vide order
dated 25.09.2017 by observing that there is a specific bar
under Section 98(2) of the Gujarat Prohibition Act which
provides that any muddamal article seized in connection with
the prohibition offence, cannot be released on any kind of bond
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or surety till the final judgment of the court when the quantity
of the seized liquor exceeds 10 liter. Admittedly, the prohibited
liquor found from the vehicle in question was more than 10
liter and, therefore, the learned Magistrate has rightly rejected
the application as there are specific restrictions imposed by
the statute itself.
5. The aforesaid order passed by the learned JMFC, Kathor,
was challenged before the revisional court by filing a revision
application which was allowed by the learned Sessions Court,
Surat by impugned order dated 18.11.2017, ordering interim
release of the muddamal vehicle by quashing and setting aside
the order of the learned Judicial Magistrate, Kathor dated
25.09.2017. Being aggrieved, the applicant is here before this
Court with the present application.
6. Learned APP Mr. Dabhi submits that the impugned order
passed by the learned Sessions Judge is ex-facie, illegal, null
and void and suffers from various infirmities resulting in
serious miscarriage of justice. A similar issue came up for
consideration before this Court, wherein His Lordship then was
(Coram: J.B. Pardiwala, J.) now the Judge, Supreme Court of
India, in a very detailed and celebrated judgment in the case of
Pareshkumar Jaykarbhai Brahmbhatt vs. State of
Gujarat, passed in Special Criminal Application No.8521 of
2017 and allied matters, dated 15.12.2017, after referring to
the relevant provisions and the tenets of law enunciated by the
Hon'ble Apex Court as well as the notification issued by the
State, has made the position of law very clear by holding that
Section 98(2) of the Act, 1949 curtails the power of the
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Magistrate to order interim release of the seized vehicle under
Sections 451 or 457 of the Cr.P.C., as the case may be. It is
further held that the courts below do not have any jurisdiction
to order interim release, pending the trial, of the seized vehicle
in connection with the offence under the Act, 1949, if the
quantity of the liquor recovered exceeds 10 liters in quantity.
The said case went up to the Supreme Court, and the Hon'ble
Apex Court has also confirmed the view taken by the then
Single Bench of this Court in the above referred decision.
Thus, In view of the aforesaid settled proposition of law, the
trial court does not have any jurisdiction to order interim
release of the muddamal vehicle and, therefore, the impugned
order passed by the learned Sessions Court is required to be
quashed and set aside and the order passed by the learned
Judicial Magistrate be confirmed.
7. Having heard the learned APP appearing for the
applicant-State and having considered the materials on record,
the only question that falls for my consideration is whether the
Court below committed any error in passing the impugned
orders.
8. Before delving into the merits of the matter, I would like
to refer to and rely upon the law laid down by the then
Coordinate Bench of this Court in Pareshkumar Jaykarbhai
(supra), wherein the said Coordinate Bench (Coram: J.B.
Pardiwala, J.), leaving without an inch of doubt, has laid down
very much appreciated guiding principles as regards release of
muddamal article seized in connection with the prohibition
offence, the significant observations of which, are as under;
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"50. The scheme of Section 98 would show that the
things mentioned in clauses (a) to (d) are straightway to
be confiscated. But in respect of any receptacle, package
or covering in which any of the articles liable to
confiscation under Sub-Section (1) are found and the
animals, carts, vessels, or other conveyances used in
carrying any such articles they are not to be confiscated
straightway but they are liable to confiscation. There is
understandable distinction between the things which
must be straightway confiscated as provided by Section
98(1) and the things which are liable to confiscation. This
should be in the very nature of things. Things like
intoxicant, hemp, mhowra flowers, molasses, materials,
still utensil, implement or apparatus in respect of which
offence appears to have been committed under the
Bombay Prohibition Act should straightway be
confiscated because their possession per se is prohibited.
They must be confiscated because they cannot be
returned otherwise to the person to whom it is returned
would be committing the same offence over again. They
are articles, the possession of which is per se prohibited
in view of the provisions contained in the Bombay
Prohibition Act. But vessels, conveyances, carts and
animals used for transport of such prohibited articles are
not per se prohibited and therefore, they cannot be
straightway confiscated. They are liable to confiscation in
view of the use made of such things. Section 99 provides
the procedure to be followed by the Court in respect of
the things liable to confiscation before they are
confiscated. Section 99 provides as under :
"99. When during the trial of a case for an offence under
this Act the court decides that anything is liable to
confiscation under the foregoing section, the Court may
after hearing the person, if any, claiming any right
thereto and the evidence if any, which he produces in
support of his claim order confiscation or in the case of
any article other than an intoxicant, hemp, mhowra
flowers or molasses give the owner an option to pay fine
as the court deems fit in lieu of confiscation :
Provided that no animal, cart, vehicle or other
conveyance shall be confiscated if the owner thereof
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satisfies the court that he had exercised due care in
preventing the commission of the offence."
It appears that the articles which are liable to
confiscation can only be confiscated after hearing the
person claiming any right thereto and the evidence if any
which he produces in support of his claim. The proviso to
Section 99 makes it abundantly clear that vessel or
vehicle or other conveyance cannot be confiscated if the
owner satisfies the Court that he had exercised due care
in preventing the commission of the offence. Therefore,
when anything liable to confiscation is to be confiscated
the Court has to hear the person claiming any right
thereto. Such a person has a right to lead evidence in
support of his claim. He has also an option to pay fine in
lieu of confiscation. In respect of the vehicle or
conveyance the same cannot be confiscated if the owner
shows that he had taken sufficient care to prevent the
commission of the offence. He can do so by leading
evidence. Therefore, before the Court proceeds to
confiscate a vehicle, vessel or a conveyance, it must give
an opportunity to the owner thereof to show whether he
had used sufficient care to prevent the commission of the
offence. In fact before an order of confiscation is passed
an inquiry as contemplated by Section 99 would be
made. Such an inquiry is to be made in respect of the
articles liable to confiscation and not those which are
required to be confiscated as a necessary corollary as
provided in Section 98(1).
The order of confiscation is not a consequential order
which must follow the findings of fact in the case and a
duty is cast on the Court to confiscate anything in
respect of which the offence appears to have been
committed. One should not ignore distinction made by
the Legislature between Sections 98(1) and 98(2) of the
Bombay Prohibition Act. Section 98(1) provides for
confiscation of certain things in respect of which an
offence appears to have been committed. In respect of
those things such as intoxicant, hemp, mhowra flowers,
molasses, materials still utensil, implement or apparatus
in respect of which an offence appears to have been
committed they are straightway to be confiscated. As
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soon as the Court comes to the conclusion that in respect
of the articles set out above the offence appears to have
been committed, under the Bombay Prohibition Act, the
Court has no option but to confiscate those articles. Sub-
Section (2) makes a distinct departure in respect of these
things or articles which are not to be confiscated
straightway but which are liable to confiscation and the
things which are liable to confiscation have to be dealt
with as provided by Section 99. Therefore, in respect of
the things which are not to be confiscated but which are
liable to the confiscation he Court has to follow the
procedure prescribed in Section99 before the order of
confiscation in respect of such things could be passed. It
cannot, therefore, be said that the order of confiscation is
a mere consequential order following the findings of fact
recorded by the Court. It may be that a person may be
held guilty of possession of liquor imported in the motor
track and yet the truck need not be confiscated if it is
found that it belongs to some other person who had
exercised due care for preventing the commission of the
offence. To take a simple illustration, a person in
transport business was approached with a request that
the truck is to be hired for transporting vegetables and
while loading vegetables a few bottles of liquor were also
loaded. If a search of the truck is taken and bottles are
recovered the person who hired the truck and
transported vegetables would be in possession of the
bottles and would be liable for possession of liquor. But in
such circumstances, it is unconceivable that the motor
truck could also be straightway confiscated. Therefore,
before the motor truck could be confiscated the Court
must make an inquiry as envisaged by Section 99 and
give an opportunity to the owner of the motor truck to
show that he had exercised due care for preventing the
commission of the offence and if the Court is satisfied
that he had exercised due care, the truck cannot be
confiscated. Therefore, it cannot be said that in all cases
the order of confiscation is a consequential order or that
there is a duty cast on the Court to confiscate every
article coming before the Court trying the offences under
the Bombay Prohibition Act.
51 I am unable to agree with the submission of Mr. A.D.
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Shah, the learned Amicus Curiae that the Court should
read into Section 98(2) of the Act, 1949, the power of the
Magistrate to release the vehicle in exercise of power
under Sections 451 or 457 of the Cr.P.C., as the case may
be, otherwise Section 99 of the Cr.P.C. would be rendered
redundant. In my view, the entire purpose of the
legislation would be defeated if any other literal
construction was to be adopted. I am in agreement with
the submission of Mr. Raju, the learned Amicus Curiae
that the words during the trial of a case in Section 99 of
the Act, should not be construed as at any stage of the
trial. In my view, Mr. Raju, the learned Amicus Curiae, is
right in submitting that Section 99 of the Act comes into
play when the Court decides to pass an appropriate order
as regards the disposal of the muddamal property under
Section 452 of the Code of Criminal Procedure. Section
452 contemplates disposal of property at the conclusion
of the trial and says that when an inquiry or trial for any
Criminal Court is concluded, the Court may make such
order as it thinks fit for its disposal. This Section 452
refers to a stage when the trial is concluded. The word
inquiry in Section 452 should be construed as one
necessary for the disposal of the property i.e.
confiscation, etc. The word concluded in Section 452
means, in my opinion, concluded after a full hearing with
a final judgment for determination of the case against
the accused. For, clearly an order under Section 452 can
be made only on the basis of the evidence recorded in
the inquiry or trial, and in accordance with the findings,
the Magistrate may arrive at with material. Therefore,
Section 99 comes into play on conclusion of the trial i.e.
when the Court decides to confiscate the vehicle. At that
stage, the Court may conduct a formal inquiry and in
such an inquiry, an opportunity has to be given to the
person claiming the possession of the vehicle. At that
stage, the proviso to Section 99 comes into play. In
accordance with the proviso, the owner may adduce
necessary evidence to satisfy the Court that he had
exercised due care in preventing the commission of the
offence and although the accused persons may be held
guilty and convicted, yet the vehicle involved in the
commission of the offence may not be confiscated. There
is one more reason to take this view. In Section 99, the
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words are give the owner an option to pay fine as the
Court deems fit in lieu of confiscation. The question of
payment of fine would come only on conclusion of the
trial and not at an earlier stage.
65 My final conclusion is that Section 98(2) of the Act,
1949 curtails the power of the Magistrate to order interim
release of the seized vehicle under Sections 451 or 457
of the Cr.P.C., as the case may be. The Courts below will
have no jurisdiction to order interim release pending the
trial of the seized vehicle in connection with the offence
under the Act, 1949, if the quantity of the liquor
recovered exceeds 10 litres in quantity.
66 The Legislature in its wisdom has prescribed a
methodology to deal with the prohibition offences,
seizure, confiscation, release, etc. Once such a procedure
is prescribed, the Courts have to examine the rights of
the parties in accordance with the procedure so
prescribed. I am unable to hold that the Magistrate and
Revisional Court have committed any error in rejecting
the applications preferred by the respective applicants
under Sections 451 or 457 of the Cr.P.C. In view of the
provisions of Section 98(2) of the Act, 1949, the general
provisions laid down in Sunderbhai Ambalal Desai vs.
State of Gujarat [JT (2002) 10 SC 80] cannot be pressed
into service for release of vehicle from the Court of
Magistrate."
9. Thus, the then Coordinate Bench took the view that
Section 98 (2) of the Act, 1949 specifically excludes the power
of the Magistrate to order interim release of the seized vehicle
under Sections 451 or 457 of the Criminal Procedure Code, as
the case may be. The Court made itself very clear in the
judgment referred to above that the trial courts have no
jurisdiction to order interim release of the seized vehicle
pending the trial if the quantity of the liquor recovered
exceeds ten liters. This Court also clarified that in view of the
provisions of Section 98 (2) of the Act, 1949, the general
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principles as laid down by the Supreme Court in Sunderbhai
Ambalal Desai vs. State of Gujarat [JT (2002) 10 SC 80] cannot
be pressed into service for release of vehicle from the Court of
Magistrate.
10. The principles laid down by the then Coordinate Bench in
Pareshkumar Jaykarbhai (supra), while dealing with the
identically situated issue, should be treated as the binding
precedent and has to be followed by the trial courts.
11. According to Sir John Salmond, once upon a very eminent
jurist in New Zealand, "A precedent is said to be a judicial
decision which contains its principles. The stated principle
which thus forms its authoritative element is called the ratio
decidendi. The concrete decision is thus binding between the
parties, but it is the abstract ratio decidendi which alone has
the force of law as regards the world at large."
12. In the aforesaid context, a five Judge Bench of the
Hon'ble Apex Court, in Chandra Prakash v. State of U.P.,
(2002) 4 SCC 234, after considering series of earlier ruling
reiterated that:
"22. ... The doctrine of binding precedent is of utmost
importance in the administration of our judicial
system. It promotes certainty and consistency in
judicial decisions. Judicial consistency promotes
confidence in the system, therefore, there is this need
for consistency in the enunciation of legal
principles in the decisions of this Court."
(emphasis supplied)
13. It may be necessary to quote the opinion of
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Chief Justice Griffith of the High Court of Australia in
the Ex Parte Brisbane Tramways Co. Ltd. (No. 1), [1914] 18
C.L.R 54:
"In my opinion, it is impossible to maintain as an abstract
proposition that Court is either legally or technically
bound by previous decisions. Indeed, it may, in a
proper case, be its duty to disregard them. But the rule
should be applied with great caution, and only
when the previous decision is manifestly wrong, as, for
instance, if it proceeded upon the mistaken assumption
of the continuance of a repealed or expired
Statute, or is contrary to a decision of another Court
which this Court is bound to follow; not, I think, upon
a mere suggestion, that some or all of the members of
the later Court might arrive at a different conclusion if the
matter was res integra. Otherwise there would be
great danger of want of continuity in the
interpretation of law."
14. In view of the above referred tenets of law, I am of the
view that the law laid down by the High Court of the State on a
particular issue, should be the binding precedent to all the trial
courts and they should follow the guiding principles already
enunciated by the High Court and that too when also
confirmed by the Supreme Court, while come across to decide
an identically situated issue and should not take a view
contrary to what has already been established by the High
Court on the subject so as to maintain the continuity in the
interpretation of law.
15. In light of the aforesaid discussion, the present
application succeeds and is hereby allowed. The order dated
18.11.2017 passed below Exh.4 in Criminal Revision
Application No.378 of 2017 by the learned 9 th Additional
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Sessions Judge, Surat is hereby quashed and set aside, and
the order dated 25.09.2017 passed by the learned JMFC,
Kathor below the application filed for release of Muddamal in
relation to offence registered at Kamrej Police Station being III-
C.R. No.421 of 2017 is hereby confirmed. The Muddamal
vehicle, i.e., Eco Car bearing its registration No.GJ-05-JL-9205
be directed to be taken back into the police custody. Rule is
made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J)
VAHID
