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2021 Supreme(Guj) 766
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHOKKUMAR C. JOSHI, J.
VELABHAI MANJIBHAI VAGHELA - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CRIMINAL APPLICATION NO. 377 of 2021
Decided On : 02-09-2021
For The Appellant : MR BU MODI for MR NIRAV K PADHIYAR
For The Respondent: MS JIRGA JHAVERI, APP.
Point of Law : It is of no use to keep such seized vehicles at the 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 the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.
Headnote:
Criminal Procedure Code, 1973 - Section 482 and 451 - Constitution of India,1950 - Article 226 and 227 - Prohibition Act - Sections 65(A)(E), 116B,99 and 98(2) - Gujarat Prohibition Act – Order for custody and disposal of property pending trial in certain – Seeking for custody - Vehicle - Petition seeking to invoke extra ordinary jurisdiction of Court under Article 226 of Constitution of India Section 482 of Criminal Procedure Code, 1973 to release vehicle Alto Car in connection with FIR being C.R. registered before P S Dist. for offence punishable under Sections 65(A)(E), 116B and 98(2) of Prohibition Act Petitioner submitted that as per allegations made in FIR there was liquor worth found in vehicle - Petitioner is owner of vehicle in question is duly registered with transport department of government and petitioner is only claimant seeking custody of said vehicle - Court for release of muddamal without prior approaching to learned concerned Court below - It is also submitted that by virtue of provisions of section 98 of Act there is clear embargo for handing over t custody of vehicle used in offence pending trial Court and if vehicle would lie at police station for more time there will be physical damage to it and therefore interference of Court is required in interest of justice - Further it is submitted that otherwise petitioner has no antecedents.
Finding of the Court :
Seized vehicles at police stations for a long period - It is for Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of said vehicles Court required at any point of time - Court can be done pending hearing of applications for return of such vehicles - State of Gujarat further submitted that at present in P S premises number of vehicles are kept unattended and vehicles become junk day by day - learned counsel appearing for petitioners submitted that 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 - Court It appears that petitioner has no antecedents - Further it is nobody’s case that same vehicle is used earlier in any such offence and therefore petitioner cannot be denied interim possession of vehicle and on basis of the judgment of Hon’ble Supreme Court in case Court is inclined to exercise extraordinary powers under Articles 226 and 227 of Constitution - Court for release of muddamal without prior approaching to learned concerned Court below - It is also submitted that by virtue of provisions of section 98 of Act there is clear embargo for handing over custody of vehicle used in offence pending trial Court and vehicle would lie at police station for more time there will be physical damage to it and therefore interference of Court is required in interest of justice - Further it is submitted that otherwise petitioner has no antecedents.
Result: Petition allowed
JUDGMENT :
1. The petitioner has filed this petition seeking to invoke extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India r/w. section 482 of the Criminal Procedure Code, 1973 (“the Code” for short) to release the muddamal vehicle being Maruti Suzuki Alto Car, bearing RTO registration No. GJ-18-BA-4233, in connection with the FIR being C.R. No. 11195017200688 of 2020, registered before the Diyodar Police Station, Dist.: Banaskantha for the offence punishable under Sections 65(A)(E), 116B and 98(2) of the Prohibition Act.
2. Heard learned advocate Mr. B. U. Modi for learned advocate Mr. Nirav K. Padhiyar for the petitioner and learned APP Ms. Jirga Jhaveri on behalf of the respondent - State.
2.1 Rule. Learned APP waives service for the respondent – State. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
Factual Matrix of the case:
3. The learned advocate for the petitioner submitted that as per the allegations made in the FIR, there was liquor worth Rs.11,800/- found in the muddamal vehicle. It is the case of the petitioner that the petitioner is the owner of the muddamal vehicle. 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 vehicle.
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, and if the vehicle would lie at the police station for more time, there will be physical damage to it and therefore, interference of this Court is required in the interest of justice. Further, it is submitted that otherwise, the petitioner has no antecedents.
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 Coordinate 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.
3.4 Accordingly, it is urged that present petition may be allowed and the muddamal vehicle may be released on any suitable conditions.
4. Per contra, learned APP for the respondent - State has vehemently argued that the quantity of liquor is huge 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 S
