Point of Law: Confiscation - Release of vehicle - It is of no use to keep such seized vehicles at police stations for a long period. Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of said vehicles, if required at any point of time.

ORDER :

1. With the consent of learned advocates on both the sides, the matter is heard today finally.

2. By way of this petition, the petitioner has prayed to quash and set aside the order dated 19.08.2019 passed by the 2nd Additional Sessions Judge at Dhangadra, Surendranagar in Criminal Revision Application No.10 of 2019 confirming the order dated 22.04.2019 passed by the Judicial Magistrate First Class at Patadi, Surendranagar and also prayed to release the muddamal vehicle bearing registration No.GJ-02-YY-5406, which was seized in connection with the offence punishable under the Gujarat Prohibition Act (hereinafter referred to as “the Act”), on suitable terms and conditions.

3. Learned advocate for the petitioner submitted that the petitioner is the owner of the vehicle in question and has not been named in the complaint. The copy of the R.C. Book has been produced on record to prove the aspect of ownership.

3.1 Learned advocate for the petitioner submitted that the muddamal vehicle has been detained by the investigating officer and that if the interim custody of the vehicle is not given, serious prejudice would be caused to the petitioner as the muddamal vehicle would get substantially damaged by the time the trial gets concluded and probably, by that time, the value of the muddamal vehicle may also become ‘Nil’ as the vehicle is lying under the open sky in different climatic conditions. It was further submitted that this Court has ordered release of muddamal vehicles even in instances under section 98(2) of the amended Act and hence, the Court may consider the case of the petitioner since this may fall under section 99 of the Act. It was, accordingly, urged that this Court may direct release of the muddamal vehicle in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India on suitable terms and conditions.

3.2 Reliance was placed upon several decisions rendered by the coordinate Benches of this Court to submit that even after considering the rigor of section 99 of the Act, this Court has allowed the muddamal vehicles to be released in favour of the petitioner therein.

3.3 The attention of the Court was invited to the judgment of the Apex Court in the case of Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 SC 638, wherein the Apex Court ordered release of muddamal vehicle seized under the provisions of the Act while lamenting the scenario of a number of vehicles having been kept unattended and becoming scrap within the police station premises or at any other designated places.

4. Learned Additional Public Prosecutor appearing for the respondent-State vehemently contended that the muddamal vehicle was involved in the offence under the Act and that in view of the embargo contemplated under the provisions of section 98 of the Act, the Courts below are not empowered to release the muddamal vehicle. Reliance has been placed on the judgment of this Court (Coram : J.B. Pardiwala, J.) in the case of Pareshkumar Jaykarbhai Brahmbhatt v. State of Gujarat rendered in Special Criminal Application No.8521 of 2017 decided on 15.12.2017, wherein it has been held that the Courts below have no jurisdiction to hand over custody of the muddamal vehicle in view of the embargo under section 98 of the Act. It was submitted that a petition being S.L.P. (Cri.) No. 886 of 2018 is pending before the Apex Court in respect of the said issue and therefore, no powers may be exercised by this Court by releasing the muddamal vehicle seized by the police in connection with an offence under the Act. It was, however, urged that the 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. It was, accordingly, urged that the present petition may not be entertained.

5. Heard learned advocates on both the sides and perused the documents on record. In the case of Pareshkumar Jaykarbhai Brahmbhatt v. State of Gujarat rendered