Court held that rightful custody of seized vehicle is necessary to prevent deterioration pending trial, following provisions of the Gujarat Prohibition Act.

ORAL ORDER

RULE. Learned APP waives notice of rule for and on behalf of the respondents.

1) The petitioner is the Power of Attorney holder of registered owner of the vehicle – Ahir Enterprise, has preferred the present petition seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Article 227 of the Constitution of India so also inherent powers of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “ BNSS ”) with a prayer to release Muddamal Vehicle i.e Ashok Leyland Ltd UM4220/66 H CC (Goods Carrier) bearing RTO registration No.GJ-16-AV-9994.

2) The case of the prosecution is that while the police personnel were on patrolling, they received a secret information of the vehicle in question carrying liquor and when police authorities intercepted the same, on carrying out the search of the said vehicle, its driver was found carrying liquor without any pass or permit. Therefore, an FIR No.11195050250822 OF 2025 registered with Tharad Police Station, District Banaskantha for the offence punishable under the Prohibition Act.

3) Heard learned advocate for the petitioner and learned APP for the respondents.

4) Learned Advocate for the petitioner has urged that this Court has wide powers under Article 226 of the Constitution. It can also take into account the ratio laid down in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in AIR 2003 SC 638, wherein, the Hon’ble Apex Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police station premises.

5) Learned APP for the respondents has objected the submissions made by learned advocate for the petitioner and urged that of course, powers of this Court under Article 226 of the Constitution to order release of the vehicle can be exercised however, in view of section 98 of the Gujarat Prohibition Act , this is not a fit case to exercise the jurisdiction and hence, requested to dismiss the petition.

6) Heard learned advocates appearing for the respective parties.

7) It is undisputed that the vehicle being seized in connection of the offence registered under the Gujarat Prohibition Act . I have considered the provision of sections 98, 123 and 132(a) of the Gujarat Prohibition Act and section 497 of the BNSS [section 451 of the CrPC].

8) Keeping in mind the law laid down by the Hon’ble Supreme Court in the case of Khengarbhai Lakhabhai Dambhala vs. The State of Gujarat reported in 2024 INSC 285 as well as the provision of section 98(2) of the Prohibition Act (amended on 31.07.2024), the respondent – authority failed to show or point out that after the amendment under Section 98 (2) of the Prohibition Act, confiscation of the seized vehicle being done and auction proceedings have been initiated or for the said procedure, authority has approached the learned Magistrate. Further, though as per the regulation, the prohibited goods transported in the muddamal vehicle is more than the permissible limit i.e. exceeding 20 liters, due to this reason the vehicle is liable to be confiscated by the government, both the Courts below have not committed any error in passing the order of denying the interim custody of the vehicle to the petitioner however, till date no confiscation proceedings being initiated and vehicle remained in the police station as it is. In absence of any such material or initiation of confiscation of vehicle, it is expedient to avoid situation of vehicle getting deteriorated pending