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2021 Supreme(Guj) 770
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHOKKUMAR C. JOSHI, J.
KAMLESHBHAI SAMARSINH BARIA - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CRIMINAL APPLICATION NO. 1843 of 2021
Decided On : 02-09-2021
For The Appellant : SHIVAM H CHOKSHI
For The Respondent: MS CM SHAH APP.
Point of Law: Release of vehicle - It is for the 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.
Headnote:
Constitution of India, 1950 - Articles 226 and 227 - Code of Criminal Procedure, 1973 - Section 482 and 451 - Gujarat Prohibition Act - Sections 65(E), 81, 98(2) - Application for - Release muddamal vehicle - Petitioner has filed application seeking to invoke extra ordinary jurisdiction to Court under Articles 226 and 227 of Constitution of India, mainly supervisory jurisdiction so also inherent powers under Section 482 of Code of Criminal Procedure to release Muddamal vehicle - Petitioner is owner of Honda Shine Car registration - learned Court below has rejected release of application only because of restriction under Section 98(2) of Prohibition Act but vehicle lying at Police Station for more time otherwise there will be physical damage to it therefore interference of Hon’ble Court is required and therefore Court may please to allow application in interest of justice.
Finding of the Court :
Court question of handing over vehicles to person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by concerned persons - situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate 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-Court can be done pending hearing of applications for return of such vehicles. Court has assistance of orders passed by co-ordinate Bench in case of State of Gujarat in Special Criminal Application order in case of in Special Criminal Application order (3) in case of State of Gujarat in Special Criminal Application order in case of State of Gujarat in Special Criminal Application order wherein vehicle was used in offences under Prohibition Act released by Court at many occasions-Application is allowed authority concerned is directed to release vehicle of petitioner Car.
Result : Application Allowed
JUDGMENT :
1. The petitioner has filed this application seeking to invoke extra ordinary jurisdiction to this Court under Articles 226 and 227 of the Constitution of India, mainly supervisory jurisdiction so also inherent powers under Section 482 of the Code of Criminal Procedure to release the muddamal vehicle- Honda Shine Car bearing RTO registration No. GJ-20.S.5751 in connection with the FIR No. 11821014200286 of 2020 registered with Dhanpur Police Station, District - Dahod for the offence punishable under Sections 65(E), 81, 98(2) of the Gujarat Prohibition Act.
2. Heard learned advocate Mr. Shivam Chokshi for the petitioner and learned APP Ms. CM Shah on behalf of the Respondent State of Gujarat through video conference.
Factual Matrix of the case:
3. It is the case of the petitioner is the owner of Honda Shine Car bearing RTO registration No. GJ-20.S.5751. It is the case of the petitioner that the learned Court below has rejected release of muddamal application, only because of restriction under Section 98(2) of the Prohibition Act but vehicle lying at the Police Station for more time, otherwise there will be physical damage to it, therefore interference of this Hon’ble Court is required and therefore, this Court may please to allow this application in the interest of justice.
4. It is contended that as per the allegations in the FIR, above 10 liters of liquor was found in the vehicle of the petitioner. It is also contended that during raid the Investigating Officer had seized one Honda Shine Car bearing RTO registration No. GJ-20.S.5751 and accordingly an FIR came to be registered.
5. It is also contended that petitioner has purchased Honda Shine Car bearing RTO registration No. GJ-20.S.5751 which is the earning means of the petitioner and present the said vehicle is lying in Police Station in abandon condition. It is also contended that after the amendment in the Prohibition Act as per the provisions contained in section 98(2) of the said Amended Act, the learned Magistrate and the learned Sessions Judge does not have jurisdiction to release the muddamal vehicle by exercising power under section 451 of the Cr.PC in case of muddamal vehivle which is alleged to be used in the prohibition offences in which the quantity of liquor is more than 10 liters. Under such circumstances, the present petitioner is not having any other alternative remedy, except filing of this petition before this Court. Therefore, the present petition is filed and prayed for releasing captioned muddamal vehicle.
6. Earlier also this Court has issued Rule on 04.03.2021, returnable on 16.03.2021. Learned advocate for the petitioner time and again vehemently submitted that the co - ordinate Bench passed the order in favour of the petitioner in identical cases. Further 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, (5) in case of Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in Special Criminal Application No. 2692 of 2020 order dated 14.07.2020 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.
7. Per contra, learned APP for the Respondent - State has vehemently argued that 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. Therefore, learned Trial Court has right
