Point of Law: provisions provide for confiscation. However, considering the factual aspects of this case, this Court is of the considered opinion that the custody of the vehicle, if granted in favour of the applicant, no prejudice is likely to be caused to the prosecution as there will be stringent conditions on the applicant with regard to the seized vehicle i.e. Suzuki Motorcycles

ORDER :

1. Heard Mr. M.M. Barejia, learned advocate for the applicant and Ms. Moxa Thakkar, learned APP for the respondent-State through Video Conferencing.

2. In view of the earlier order, learned APP has produced on record the panchnama of seizure of the vehicle as well as Tax Invoice of M/s. Dharmaraj Automobiles Pvt. Ltd. which shows that Engine Number is tallying with the number of vehicle mentioned in the Tax Invoice.

3. The present application has been filed under Articles 14, 226 and 227 of the Constitution of India and under Section 451 of the Criminal Procedure Code for the following reliefs:

(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to issue writ of certiorari or any other writ, order or direction and pleased to direct the concerned Police Station to release the Muddamal Vehicle bearing:

Chassis No. MB8DP12-DAL8141291

Engine No. AF21-6286008

Maker Name - Suzuki Motorcycles (India) PVT. LTD.

Model Name - Suzuki ACCESS DRUM CBS BS-6

Date of purchase 23.07.2020

Which is taken as Muddamal in connection with the FIR No. 11210046201049 for the offences u/s. 65(e), 98(2) and 116-B of Prohibtion Act registered with PUNA Police Station, Surat City on dated 16.08.2020.

(C) Kindly dispense with the copy of RC Book as vehicle is very new and RC Book is not allotted.

(D) Your Lordships may be pleased to grant any other and further reliefs under the facts and circumstances of this case.

4. It is averred in the application that the present applicant is the owner of the vehicle in question i.e. Suzuki Motorcycles (India) Pvt. Ltd. Model being Suzuki ACCESS DRUM CBS BS-6 having Chassis No. MB8DP-12DAL-8141291 and Engine No. AF21-6286008 which came to be seized by the police authority. It is also averred by the applicant that he is not the accused in the offence and, therefore, considering the provisions of the Prohibition Act and other decisions of this Court, the application may be allowed.

5. Learned advocate for the applicant has submitted the same facts which are narrated in the memo of application. He has prayed to allow the present application.

5.1 Learned advocate for the applicant has urged that this Court has wide powers, while exercising such powers under Article 226 of the Constitution of India. 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.

5.2 Learned advocate for the applicant has relied upon the following orders of the Coordinate Bench of this Court:

(i) Vipulbhai Tulshibhai Rajodiya vs. State of Gujarat dated 30.09.2020 rendered in Special Criminal Application No. 4937 of 2020.

6. Learned APP has strongly opposed to the grant of present application. She has submitted that in view of Section 98 of the Act, the vehicle used in the crime under Prohibition Act is liable to be confiscated and therefore the application may not be entertained.

7. It would be worthwhile to refer profitably at this stage to the observations made by the Apex Court in the case of Sunderbhai Ambalal Desai (Supra), which read 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 l