Gujarat High Court
Prajapati Rajendrakumar Rameshbhai vs State Of Gujarat on 14 July, 2020
Equivalent citations: AIRONLINE 2020 GUJ 537
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
R/SCR.A/2692/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2692 of 2020
==========================================================
PRAJAPATI RAJENDRAKUMAR RAMESHBHAI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR JAYDEEP H SINDHI(9585) for the Petitioner(s) No. 1
MS NISHA THAKOR, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 14/07/2020
ORAL ORDER
1. On the facts and in the circumstances of the case and with the consent of the learned advocates for the respective parties, the petition is taken up for final disposal.
2. Rule. Ms.Nisha Thakor, learned Additional Public Prosecutor wavies service of Rule on behalf of the respondent State.
3. This petition is filed under Articles 226 and 227 of the Constitution of India, wherein the petitioner has prayed for release of car - Tavera (Make - General Motors Limited) bearing Registration No.GJ-18-AU- 5720 and Chassis No.BAH138379 and Engine No.3LL139520 ('the vehicle in question' for short) by imposing suitable conditions.
4. Brief facts, as emerging from the record, are as under:
4.1 The petitioner is the owner of the vehicle in question and has given it to some other person on rent of Rs.15,000 per month. It is the case of the petitioner that on 6.12.2019, the vehicle in question was intercepted by the police officers on the ground that the vehicle in question was used by the accused in the commission of offence under Page 1 of 5 Downloaded on : Tue Jul 14 22:50:26 IST 2020 R/SCR.A/2692/2020 ORDER provisions of Sections 65(a)(e), 116-B, 98(2), 81 of the Gujarat Prohibition Act, 1949.
4.2 It is the case of the petitioner that he came to know about lodging of registration of the First Information Report by the police officer as well as seizure of the vehicle in question in connection with the offence registered under the Gujarat Prohibition Act, 1949. It is thereafter that the petitioner preferred an application before the learned Judicial Magistrate (First Class), Modasa for release of the vehicle in question, however, the learned Magistrate rejected the application vide order dated 23.12.2019.
4.3 Being aggrieved, the petitioner preferred revision application before the learned Principal District & Sessions Judge, Arvalli at Modasa being Criminal Revision Application No.1 of 2020. The learned Principal District & Sessions Judge, vide order dated 13.2.2020, has rejected the said application and thereby the order dated 23.12.2019 passed by the learned Magistrate stood confirmed.
4.4 Being aggrieved by the aforesaid order dated 13.2.2020 passed by the learned Principal District & Sessions Judge, Arvalli at Modasa, the petitioner has filed present petition with the aforementioned prayer.
5. Mr.Jaydeep H. Sindhi, learned advocate for the petitioner submitted that the petitioner is the owner of the vehicle in question, however, the petitioner is nowhere connected in the commission of offence. It is submitted that merely because the vehicle in question was driven by the driver, there is no ground available to the Investigating Officer to seize the vehicle in question. It is submitted that the petitioner was not aware about the usage of the vehicle in question in commission of such offence under provisions of the Gujarat Prohibition Act, 1949. It is submitted that the vehicle in question is the source of livelihood of the Page 2 of 5 Downloaded on : Tue Jul 14 22:50:26 IST 2020 R/SCR.A/2692/2020 ORDER petitioner and if the same is not released, the petitioner would suffer grave hardship.
6. In support of his submission, Mr.Jaydeep H. Sindhi, learned advocate for the petitioner has placed reliance on the judgment of the coordinate benches of this Court rendered in Special Criminal Application No.7761 of 2018 rendered in the case of Pravinbhai Chhaganbhai Parmar vs. State of Gujarat as well as the order passed in Special Criminal Application No.3494 of 2019 rendered in the case of M/s. Om Shakti Travesl vs. State of Gujarat. It is submitted that this Court has, while exercising powers under Articles 226 and 227 of the Constitution of India, released the vehicle by imposing suitable conditions. In view of the said, the present petition may also be allowed releasing the vehicle in question by imposing suitable conditions.
7. On the other hand, Ms.Nisha Thakor, learned Additional Public Prosecutor for the respondent State, while opposing the petition, has vehemently submitted that the vehicle in question was involved in the offence under the provisions of the Gujarat Prohibition Act, 1949 and at this stage, permission for releasing the vehicle in question to the petitioner may not be granted. That in view of the embargo contemplated under the provisions of Section 98 of the Gujarat Prohibition Act, 1949, the Courts below have rightly not exercised powers releasing the vehicle in question. Reliance has been placed on the judgment in case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat rendered in Special Criminal Application No.8521 of 2017, decided on 15.12.2017, wherein this Court held that in view of the embargo, the Courts below have no jurisdiction to hand over the custody of the vehicle in question used in the offence. It is, thus, submitted that the writ petition may not be entertained and deserves to be rejected.Page 3 of 5 Downloaded on : Tue Jul 14 22:50:26 IST 2020
R/SCR.A/2692/2020 ORDER
8. Heard Mr.Jaydeep H. Sindhi, learned advocate for the petitioner and Ms.Nisha Thakor, learned Additional Public Prosecutor for the respondent State through video conference.
9. Pertinently, the petitioner is the owner of the vehicle in question and the same was given to some other person on rent of Rs.15,000 per month. At the time of commission of offence, the vehicle in question was in possession of the person named in the First Information Report and it is nobody's case that either the petitioner or at his instance, the contraband liquor was being transported in the vehicle in question.
10. Apropos the aforesaid First Information Report, the vehicle in question was seized by the police personnel in connection with the offence registered with Modasa Rural Police Station for the offence punishable under Sections 65(a)(e), 81, 116B and 98(2) of the Gujarat Prohibition Act, 1949. Since the seizure, the vehicle in question is kept idle at the police station, in the place open to sky, which is likely to reduce the life of the vehicle in question.
11. This Court in case of Anilkumar Ramlal alias Ramanlalji Mehta vs. State of Gujarat rendered in Special Criminal Criminal Application No.2185 of 2018, has directed the release of the vehicle by imposing suitable conditions. Moreover, the coordinate benches of this Court have also directed the release of the vehicle applying the principles laid down by the Apex Court in case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in AIR 2003 SC 638. Except the fact that in view of the embargo provided in Section 98 of the Gujarat Prohibition Act, 1949, the Courts below have rightly not exercised the powers, nothing adverse has been pointed out by the learned Additional Public Prosecutor for not exercising the powers for releasing the vehicle in question, by this Court.Page 4 of 5 Downloaded on : Tue Jul 14 22:50:26 IST 2020
R/SCR.A/2692/2020 ORDER
12. Thus, applying the aforesaid principles of law to the facts of the present case, this Court is inclined to exercise power under Article 226 of the Constitution of India and order the release of vehicle in question -
Tavera (Make - General Motors Limited) bearing Registration No.GJ- 18-AU-5720 and Chassis No.BAH138379 and Engine No.3LL139520, pending the trial, on the conditions that the petitioner shall -
(i) furnish a solvent surety of the amount equivalent to the value of the vehicle in question as per the value disclosed in the seizure memo or panchnama;
(ii) file an undertaking on oath before the trial Court that he shall not transfer, alienate, part with the possession of the vehicle or create any charge over the vehicle till the conclusion of the trial;
(iii) produce the vehicle as and when the authority or the Court concerned directs him to do so.
13. With the aforesaid directions and observations, the petition is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(SANGEETA K. VISHEN,J) Bharat/PALAK BRAHMBHATT Page 5 of 5 Downloaded on : Tue Jul 14 22:50:26 IST 2020