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2020 Supreme(Guj) 960
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ashokkumar C. Joshi, J.
Prakshji Prahladji Arjanji Thakore – Petitioner
Versus
State Of Gujarat – Respondent
R/Special Criminal Application No. 2792 of 2020
Decided On : 10-09-2020
Advocate Appeared:
For the Applicant : Mr. Hardik P Barot
For the Respondent: Mr H K Patel, APP
Point of Law: Ownership of the mobile phone is required to be established by submitting bill and therefore, the petitioner is required to move the concerned Court with supporting documents for getting the same released
Headnote:
Constitution of India,1950 - Articles 226 and 227 - Prohibition Act - Sections 65E, 98 , 99 and 98(2) – Criminal Procedure Code,1973 – Section 451 - Physical damage - embargo for handing over the custody of the vehicle - Allegations made in FIR, there was 216 litres of desi liquor found in the muddamal vehicle - It is submitted that in fact, petitioner was not familiar about the consignment of alcohol as he was doing delivery assuming it to be the essential goods. It is the case of the petitioner that he is the owner of muddamal vehicle and mobile phone in question - Muddamal vehicle in question is duly registered with the transport department of the government and the petitioner is the only claimant seeking the custody of the said muddamal articles - Physical damage to it and therefore, interference of this Hon’ble Court is required in the interest of justice - State has vehemently argued that the quantity is huge viz. 216 litres of desi liquor and therefore, if the said muddamal vehicle is released, in that case there are all chances of committing the same offence in future under the Prohibition Act –
Finding of the Court:
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 person from whom 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 - keep such – Seized vehicles at police stations for a long period - It is for the 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 - This can be done pending hearing of applications for return of such vehicles - learned APP has opposed that the ownership of the mobile phone is required to be established by submitting bill petitioner is required to move the concerned Court with supporting documents for getting the same released –
Result: Application is allowed in part
JUDGMENT:
1. The petitioner has filed this application seeking to invoke extra ordinary jurisdiction to this Court under Article 226 of the Constitution of India to release the muddamal vehicle - Maruti Alto K-10 - four wheeler Car bearing RTO registration No. GJ-18- AM-0485 as well as one Vivo Mobile phone in connection with the FIR being CR. No. 11216022200001 registered before the Kalol Taluka Police Station, at Gandhinagar for the offence punishable under Sections 65E and 98(2) of the Prohibition Act.
2. Heard learned advocate Mr. Hardik Barot for the petitioner and learned APP Mr. H. K. Patel on behalf of the Respondent State of Gujarat through video conference.
Factual Matrix of the case:
3. Mr. Barot, learned advocate for the petitioner submitted that as per the allegations made in the FIR, there was 216 litres of desi liquor found in the muddamal vehicle. It is submitted that in fact, the petitioner was not familiar about the consignment of alcohol as he was doing delivery assuming it to be the essential goods. It is the case of the petitioner that he is the owner of the muddamal vehicle and mobile phone in question. The muddamal vehicle in question is duly registered with the transport department of the government and the petitioner is the only claimant seeking the custody of the said muddamal articles.
3.1 It is submitted by the learned advocate for the petitioner that the petitioner has directly approached this Court for release of muddamal i.e. without prior approaching to the learned concerned Court below. It is also submitted that by virtue of provisions of section 98 of the Act, there is clear embargo for handing over the custody of the vehicle used in the offence pending the trial Court, but the vehicle is lying at the Police Station for more time, otherwise there will be physical damage to it and therefore, interference of this Hon’ble Court is required in the interest of justice.
3.2 It is submitted that under the extra ordinary jurisdiction, this Court can very much entertain such petition. In support of such submission, he has relied upon the orders of the coordinate benches passed in Special Criminal Application Nos. 3747 of 2020 dated 27.08.2020 and 4204 of 2020 dated 08.09.2020.
3.3 In support of his submissions, the learned advocate for the petitioner has placed reliance upon the judgments of co-ordinate Bench (1) in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No. 5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated 26.06.2020 and also placed reliance upon the judgment delivered by the Hon’ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003 SC 638.
3.4 Accordingly, it is urged that present petition may be allowed and the muddamal vehicle as well as the mobile phone may be released on any suitable conditions.
4. Per contra, learned APP Mr. H. K. Patel for the State has vehemently argued that the quantity is huge viz. 216 litres of desi liquor and therefore, if the said muddamal vehicle is released, in that case there are all chances of committing the same offence in future under the Prohibition Act. Further, learned APP has also placed reliance upon the judgment passed by this Court in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018 dated 05.04.2018. Order dated 12.06.2020 passed in Special Criminal Application No. 7631 of 2019, wherein contrary view has taken in releasing muddamal vehicle involved in the Gujarat Prohibition Act. Learned APP further contended that SLP (Cri.) No. 886 of 2018 is
