Gujarat High Court
Bharatbhai Kanaiyalal Sharma vs State Of Gujarat on 23 April, 2024
NEUTRAL CITATION
R/SCR.A/11823/2023 ORDER DATED: 23/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF
MUDDAMAL) NO. 11823 of 2023
With
R/SPECIAL CRIMINAL APPLICATION NO. 11800 of 2023
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BHARATBHAI KANAIYALAL SHARMA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 23/04/2024
COMMON ORAL ORDER
1. By these petitions under Articles 226/ 227 of the Constitution of India, the petitioners call in question the legality and validity of the order dated 19.01.2018 passed by learned 5th Addl. District and Sessions Judge, Surat, in Criminal Revision Application Nos. 331 and 332 of 2017 and thereby confirming the order dated 30.06.2017 passed by learned JMFC, Kathor, in Muddamal Applications and thereby, pray to release muddamal cash seized in connection with the offence being C.R.No.III - 97/2017 registered with Kamrej Police Station, Surat, for the offence under Sections 65(e) and 81 of the Gujarat Prohibition Act.
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2. It is the case of the prosecution case that, while the police personnel were on patrolling near Toran Hotel, National Highway No.8, they stopped one Innova car bearing registration No.MH-04-DE-5477 coming from Surat and on carrying out the search of the said vehicle, one bottle of Indian made foreign liquor and cash amount of Rs.7,61,600/- were found. Therefore, FIR came to be filed in this regard and vehicle and muddamal cash were seized by the police. In the presence of panchas, police personnel carried out the panchnama.
In the said complaint, it is clearly stated that the said amount is of sale consideration of liquor which was sold to one Kailash Marvadi, who is engaged in the business of trading of liquor. It is further case of the prosecution that, whatever the amount recovered is from sale consideration of liquor and bottle of liquor found from the car was for their own consumption. Upon further inquiry, it was told by the petitioners that the said amount was to be paid to one Kailash Marvadi and said Kailash Marvadi had to give such amount to one Dipak, resident of Daman. The said cash amount and one bottle of liquor were recovered from the accused persons at Page 2 of 5 Downloaded on : Fri Apr 26 21:21:18 IST 2024 NEUTRAL CITATION R/SCR.A/11823/2023 ORDER DATED: 23/04/2024 undefined the spot and panchama to that effect was performed.
3. Considering the aforesaid facts, it is an admitted and undisputed fact that the muddamal cash is recovered from the accused during checking. Hence, whatever the defense put forward by the petitioners is to the effect that, out of the said amount, Rs.3,71,600/- is of saving of the petitioner for marriage expenses and therefore, cash recovered from the petitioners is not from the sale consideration of liquor business or he got the said amount on credit from others. The said fact is an afterthought and far from the truth. Considering the investigation papers and as per Section 98(2) of the Prohibition Act, muddamal cash is being seized during raid and said amount is recovered from illegal sale of liquor. Considering the provisions of Section 98 (2) of the Prohibition Act, whatever confiscated or seized article/s are not to be released till final judgment of the court. Here in a given case, the petitioners are failed to prove that the cash is of their personal savings and not from sale consideration of liquor. Under Section 99, if confiscation thing is required to be returned, as both the courts below have assigned the reasons that the accused are not the bonafide owners of the said amount as the said amount is Page 3 of 5 Downloaded on : Fri Apr 26 21:21:18 IST 2024 NEUTRAL CITATION R/SCR.A/11823/2023 ORDER DATED: 23/04/2024 undefined recovered from the vehicle, which was sale consideration of liquor.
4. Considering the aforesaid facts and provisions of Section 98 (2) of the Prohibition Act and powers if not exercised by the authority under Section 132, no case is made out for interference of the orders passed by the learned Courts below. The learned Courts below have properly assigned the reason that the petitioners are failed to submit any evidence to show their ownership of cash amount and as to how this cash was possessed by them. It is also rightly observed that, Rs.3.71 lakh is owned by this accused and rest of the cash by the other accused. Even otherwise, the authority relied upon by learned counsel for the petitioners in case of Sunderbhai Ambalal Desai vs. State Of Gujarat', AIR 2003 SC 638, would not be applicable as muddamal which is prone to decay, destruction, wear and tear of the said amount.
5. Even muddamal cash is seized for the offence under the Prohibition Act and it is the case of the prosecution case that the amount seized during the raid is clear from illegal activity of selling of liquor. Both the accused are arraigned as accused and subsequently, they have tried to make out a case before Page 4 of 5 Downloaded on : Fri Apr 26 21:21:18 IST 2024 NEUTRAL CITATION R/SCR.A/11823/2023 ORDER DATED: 23/04/2024 undefined the learned Magistrate. Even otherwise, as discussed above, considering the provisions of Section 98(2) of the Prohibition Act read with Section 451 of Cr.P.C and 457 of Cr.P.C, the coordinate Bench of this Court in case of Pareshkumar Jaykarbhai Brahmbhatt Vs. State Of Gujarat, reported in 2018 (1) GLR 558, held in para 66 as under:-
"66. The Legislature in its wisdom has prescribed a methodology to deal with the prohibition offences, seizure, confiscation, release, etc. Once, such a procedure is prescribed, the Courts have to examine the rights of the parties in accordance with the procedure so prescribed. In view of the provisions of Sec. 98(2) of the Prohibition Act, 1949, the general provisions laid down in Sunderbhai Ambalal Desai v. State of Gujarat, JT 2002 (10) SC 80 :
[2003 (2) GLR 1337 (SC)], cannot be pressed into service for release of vehicle from the Court of Magistrate."
Keeping in mind the above principle, this Court is of prima facie view that both the learned Courts below have not committed any error in passing the impugned orders.
6. In wake of aforesaid discussion as well as the principles laid down in above cited decision, present petitions being devoid of merit, are hereby dismissed in limine.
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