IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 7642 of 2018 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.P.DHOLARIA ==========================================================

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HARDIKBHAI MUKESHBHAI CHAUHAN Versus STATE OF GUJARAT ==========================================================

Appearance:

MR MAULIN G PANDYA(3999) for the PETITIONER(s) No. 1 MR LB DABHI, APP (2) for the RESPONDENT(s) No. 1 ==========================================================

CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 05/09/2018

ORAL JUDGMENT

1. What is challenged in the present writ petition under Article 227 of the Constitution of India are the order dated 28.8.2018 passed by learned District and Sessions Judge, Nadiad in Criminal Revision Application No.67 of 2018 and the order dated 18.5.2018 passed by learned Judicial Magistrate, First Class, Nadiad whereby both the courts below rejected the prayer of handing over the vehicle in question i.e. Force Tempo Tavera having its registration No.GJ-03-BV 2824 in connection with the FIR being CR No.82 of 2018 registered with Nadiad Town Police Station, District Kheda for the offence under the provisions of the Gujarat Prohibition Act 1949 (“the Act” for short). Being aggrieved by the same, the petitioner has preferred the present petition under Article 227 of the Constitution of India.

2. It is contended by learned advocate for the petitioner that learned trial Court as well as Revisional Court have not handed over interim custody of the vehicle in question in view of the provisions of section 98 of the Act which provides embargo for handing over the custody of the vehicle used in the offence pending the trial. It is, therefore, requested that appropriate directions should be given to the concerned Magistrate / trial Court who is 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 / guarantee / solvent surety for the return of the said vehicles if required by the Court at any point of time.

3. On the other-hand, Mr.L.B.Dabhi, learned Additional Public Prosecutor vehemently submitted that there is embargo under section 98 of the Code of Criminal Procedure 1973 to release the muddamal vehicle used in the offence and while interpreting the provisions of law, the coordinate bench of this Court in the case of Pareshkumar Jaykarbhai Brahmbhatt Vs State of Gujarat, decided on 15.12.2017 held that in view of the embargo, the magisterial courts as well as revisional courts have no jurisdiction to hand over custody of the vehicle used in the offence as per the provisions of section 451 of the Code of Criminal Procedure 1973. Lastly, he requested this Court to dismiss the present petition in limine.

4. In view of the aforesaid factual scenario, this Court has noticed that hundreds and thousands of such vehicles are lying either in the compound of the concerned police stations or the said vehicles are being kept in an open ground which might have been hired for keeping such vehicles and therefore, such vehicles remained idle/unutilized and by passage of time, the value of the vehicles is being diminished. This Court has also noticed that in view of the backlog of such cases, the Magistrate Courts are not equipped with the machinery so as to complete with the trial and hearing within time bound schedule but usually, such sort of cases required minimum 4 to 5 years in disposal of such cases and therefore, if the vehicles are kept in that manner in