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2019 Supreme(Guj) 396
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, J.
Sureshbhai Sukhlalbhai Mistry - Petitioners
Versus
State of Gujarat - Respondents
R/Special Criminal Application No. 3715 of 2019
Decided On : 10-04-2019
For the Petitioners: Ms. Subhadra G. Patel.
For the Respondents: Mr. Hardik Soni Addl. Public Prosecutor.
Headnote:
Constitution of India - Articles 226, 227 - Code of Criminal Procedure, 1973 - Sections 482,451 - Prohibition Act - Sections 65E, 81, 116(2) and 98(2) - 99 - 98 - Petitioner has preferred this petition seeking to invoke extraordinary jurisdiction of this Court under Article and supervisory jurisdiction under Section of the Constitution of India so also inherent powers of this Court under Section of the Code of Criminal Procedure - Application is preferred seeking release of rickshaw bearing registration - Case of the petitioner that he is the owner of the aforesaid vehicle and it is duly registered with the transport department of the Government - Case of the prosecution is that while the police personnel were on patrolling - They received a secret information of the vehicle in question carrying liquor and when police authorities intercepted the same near on carrying out the search of the said vehicle its driver was found carrying liquor without any pass or permit - An FIR being - Came to be lodged with B-Division Police Station under Sections of the Prohibition Act - Court had issued rule making the same returnable in the month of April - Learned Advocate appearing for the petitioner is heard at length - Held, 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 - Court has directed that within a period of six months from the date of production of the vehicle before the Court concerned needful be done - It even went to the extent of directing that where the vehicle is not claimed by the accused owner or the insurance company or by third person then such vehicle may be ordered to be auctioned 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 a third person - If Insurance company fails to take possession the vehicles may be sold as per the direction of the Court - Court would pass such order within a period of six months from the date of production of the said vehicle before the Court - It also directed that before handing over possession of such vehicles appropriate photographs of the said vehicle should be taken and a detailed should also be prepared - Apex Court also held and specifically directed that concerned Magistrate would take immediate action for seeing that powers under Section of the Code are properly and promptly exercised and articles are not kept for a long time at the police station in any case for not more than fifteen days to one month - Directed that this object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly - Application is allowed.
1. The petitioner has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Section 227 of the Constitution of India so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973.
2. This application is preferred seeking release of rickshaw bearing registration No.GJ-16-Y-3117.
3. It is the case of the petitioner that he is the owner of the aforesaid vehicle and it is duly registered with the transport department of the Government. He is, therefore, before this Court.
4. The case of the prosecution is that on 30.1.2018, while the police personnels were on patrolling, they received a secret information of the vehicle in question carrying liquor and when police authorities intercepted the same near Bharuch, on carrying out the search of the said vehicle, its driver was found carrying liquor without any pass or permit. Therefore, an FIR being III-CR No.11/2018 came to be lodged with B-Division Police Station under Sections 65E, 81, 116(2) and 98(2) of the Gujarat Prohibition Act.
5. This Court had issued rule, making the same returnable in the month of April, 2019. Today, learned Advocate appearing for the petitioner is heard at length.
6. Learned Advocate for the petitioner has urged that 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’, 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.
7. This Court has also heard the learned APP and she has urged this Court that the appropriate conditions be imposed, while ordering the release of the vehicle. She further pointed out that this Court (Coram: J.B. Pardiwala, J.) in the case of ‘ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT’ in Special Criminal Application No. 2185 of 2018, Dated: 05.04.2018, and in the earlier decision in ‘PARESHKUMAR JAYKARBHAI BRAHMBHATT VS. STATE OF GUJARAT’ in Special Criminal Application No. 8521 of 2017 and the allied matters decided on 15.12.2017 has held that the powers of the Magistrate to order interim release of the seized vehicle under Section 98(2) of the said Act has been curtailed, and therefore, the Courts below have been held to have no jurisdiction to order interim release of the vehicle, pending trial, where, the vehicle is seized in connection with the offence under the Prohibition Act and the quantity of the liquor seized exceeds 10 liters. She, further, urged that, of course, powers of this Court under Article 226 of the Constitution to order release of the vehicle can be exercised at any time, whenever the Court deems it appropriate. She also pointed out that the recent decision of this Court in Special Criminal Application No. 2185 of 2018, where, this Court, in exercise of the powers under Article 226 of the Constitution, has ordered the release of the vehicle, pending trial. She has also pointed out the order passed by this Court in Special Criminal Application No. 1126 of 2018, Dated: 21.06.2018, in case of ‘GUJARAT STATE ROAD TRANSPORT CORPORATION THROUGH DEPOT MANAGER, MORBI, VS. STATE OF GUJARAT’.
8. 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.
9. This Court (Coram : J.B. Pardiwala, J.) however in the case of in ‘ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT’ (Supra) in Special Criminal Application No. 2185 of 2018, Dated : 05.04.2018, has also returned the v
