Gujarat High Court
H.D.B. Financial Limited Thro Solanki ... vs State Of Gujarat on 26 February, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/8245/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8245 of 2020
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H.D.B. FINANCIAL LIMITED THRO SOLANKI SURESHKUMAR SHIVABHAI
Versus
STATE OF GUJARAT
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Appearance:
DHRUVIK K PATEL(7769) for the Applicant(s) No. 1
KALPESH R PATEL(7896) for the Applicant(s) No. 1
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 26/02/2021
ORAL ORDER
1. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order or direction for release of vehicle being - Xylo Car bearing registration No. GJ - 18 - BJ - 3061, seized as muddamal in connection with FIR being Prohibition C.R.No. 11187003201257 of 2020 registered with Lunawada Police Station, Mahisagar under sections 65-E, 81, 98(2) of the Gujarat Prohibition Act.
2. Heard the learned Advocate Mr. Dhruvik K. Patel for the petitioner and learned PP Mr. Mitesh Amin for the respondent- State.
3. Learned advocate for the petitioner has submitted that petitioner is a finance company and it has financed the vehicle in question, which is seized as mudamal in connection with FIR being C. R. No.III - 11187003201257 of 2020. Notice of rule has been Page 1 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022 R/SCR.A/8245/2020 ORDER issued by this Court on 18.12.2020, whereas record shows that respondent No.3 - owner of the vehicle has been served on or about 20.01.2021. However, he has chosen not to appear
4. Learned Advocate for the petitioner has submitted that in view of the restriction contained in section 98(2) of the Gujarat Prohibition Act, the Trial Court is precluded from releasing the custody of muddamal vehicle under section 451 of the Code of Criminal Procedure to the owner of the vehicle, hence, the applicant has no other remedy than approaching this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India. Learned Advocate for the petitioner has further relied upon various orders passed by Coordinate Benches of this Court, where vehicles seized in connection with offences under the Gujarat Prohibition Act, 1949, have been released and has submitted that such benefit may also be extended to the vehicle of the applicant.
5. The petitioner the finance company, which financed purchase of the vehicle to the owner of the vehicle. The owner was not named as accused in the said complaint.
6. Learned Advocate for the petitioner has further submitted that since there is no provision / procedure of safe keeping of seized vehicles in the Police Station, the said vehicles remain unused at the mercy of elements of nature and over a period of time deteriorate to such an extent that ultimately by the end of trial, the vehicle becomes completely useless. Thus contending the learned Advocate has prayed for release of the vehicle in question.
7. Learned APP has opposed this application. He has submitted that Section 98(2) of the Gujarat Prohibition Act contains restriction against releasing custody of a vehicle involved in an Page 2 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022 R/SCR.A/8245/2020 ORDER offence under the said Act. She has further relied upon the decision of this Court in case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat decided on 15.12.2017 in support of his contention. She has further submitted that there is all possibility that the vehicle would be used for commission of similar offences if the custody is given to the petitioner. Thus, submitting, she has prayed for rejection of this application. As regards decisions of the Coordinate Benches exercising jurisdiction under Article 226 for releasing vehicles, learned PP is not able to offer any justifiable reason as to why benefits as extended by Coordinate Benches of this Court to the applicants therein should not be made available to the applicant herein.
8. Having heard learned Advocates appearing for the parties and having gone through the material on record, it prima facie appears that there is no dispute with regard to the ownership of the vehicle in question. It also does not appear that the vehicle concerned had been seized / detained in connection with any offence including any offence under the Prohibition Act prior to present seizure / detention.
9. That the vehicle in question was detained as muddamal in connection with a complaint, which is lodged for offences under the Prohibition Act. Though the provisions of the Gujarat Prohibition Act, 1949 imposes a restriction upon release, however, this Court is of the view that no fruitful purpose would be achieved by not releasing the vehicle in question. Further this Court is of the opinion that, by imposing appropriate conditions to achieve a balance between the rights of the parties the vehicle in question can be released. For the purpose of arriving at this conclusion, this Court has taken assistance of the decisions of the Coordinate Benches to which there is no distinguishable view of this Court. Since decisions of Coordinate Benches have been considered by Page 3 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022 R/SCR.A/8245/2020 ORDER this Court, few relevant observations contained in one of the decisions, i.e. from a judgment dated 12.6.2019 passed in Special Criminal Application No.7631 of 2019 of a Coordinate Bench are quoted herein below.:
"9. On thus hearing both the sides, without determining the other issues raised by the petitioner, in reference to Sections 98 and 99 and other provisions of the said Act and reserving that to be determined in future, in an appropriate proceedings being a contentious issue, this Court choses not to enter into that arena in the present matter and instead exercise the powers under Articles 226 and 227 of the Constitution.
10. This Court (Coram: J.B. Pardiwala, J.) however in the case of in 'ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT' (Supra) in Special Criminal Application No. 2185 of 2018, Dated:
05.04.2018, has also returned the vehicle recently under Articles 226 and 227 of the Constitution, exercising its powers to do that even at an initial stage.
10.1 It would be worthwhile to refer profitably at this stage to the observations made by the Apex Court in 'SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT' (Supra), which read as under:
"15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are 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 and the guarantee for the return of the said vehicles if required by the Court at any point of time.
16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the 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 the concerned persons.
17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations Page 4 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022 R/SCR.A/8245/2020 ORDER 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."
10.2 The Apex Court has, thus, directed that within a period of six months from the date of production of the vehicle before the Court concerned, needful be done. It even went to the extent of directing that where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. It also directed that before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and a detailed panchnama should also be prepared. The Apex Court also held and specifically directed hat concerned Magistrate would take immediate action for seeing that powers under Section 451 of the Code are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. It, therefore, directed that this object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly.
10. In this petition, in addition to the prayers seeking release of the vehicle, petitioner has also sought for appropriate direction, that they may be permitted to hold auction and sell the vehicle in question to recover their outstanding dues. In this regard it would be preferable to refer to the observations of the Supreme Court in case of General Insurance Council & Ors. vs. State of Andhra Pradesh & Ors. reported in 2010 (6) SCC 768.
Page 5 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022R/SCR.A/8245/2020 ORDER "10. This Court in the said matter after considering the issue came to the following conclusion:-
"Since there is a mandatory requirement to act in the manner provided in Section 158 (6) there is no justifiable reason as to why the requirement is not being followed. It is, therefore, directed that all the State Governments and the Union Territories shall instruct, if not already done, all concerned police officers about the need to comply with the requirement of Section 158 (6) keeping in view the requirement indicated in Rule 159 and in Form 54. Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case there is non-compliance, appropriate action shall be taken against the erring officials. The Department of Transport and Highway shall make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the concerned State Government/Union Territories so that necessary action can be taken against the concerned officials."
The writ petition is accordingly disposed of."
11. Despite the aforesaid directions having been issued by this Court in the aforesaid two matters, grievance is still being made by the Petitioners, that the police, investigating agency and the prosecuting agency are not taking appropriate and adequate steps for compliance of aforesaid directions issued by this Court. Therefore, a need has arisen for giving further directions so as to clear the clouds and iron out the creases.
12. Notice of the said petition was issued to all the States and Union Territories. Almost all the States have contended that they have already issued necessary guidelines and directions for full and complete compliance of the provisions contained in Sections 451 and 457 of the Code as elaborated in Sunderbhai Ambalal Desai (supra) as also under Section 158 (6) of the M.V. Act and 159 of the Rules as directed in General Insurance Council case (supra). Thus, in one voice, they have contended that there would not be any difficulty in compliance of the directions that may be issued in furtherance of achieving the object as directed by this Court. Thus, in our view, there appears to be consensus in this matter.
13. Petitioners have submitted that information with regard to all insured vehicles in the country is Page 6 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022 R/SCR.A/8245/2020 ORDER available with the Insurance Information Bureau created by IRDA. This information could be utilised to assist the police to identify the insurer of the vehicle. Upon recovery of the vehicle in police station, insurer/ complainant can call an All India Toll Free No. to be provided by Insurance Information Bureau to give the information of the recovered vehicle. Thereafter, the insured vehicle database would be searched to identify the respective insurer. Upon such identification, this information can be communicated to the respective necessary coordination.
14. In our considered opinion, the aforesaid information is required to be utilised and followed scrupulously and has to be given positively as and when asked for by the Insurer. We also feel, it is necessary that in addition to the directions issued by this Court in Sunderbhai Ambalal Desai (supra) considering the mandate of Section 451 read with Section 457 of the Code, the following further directions with regard to seized vehicles are required to be given.
"(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary photographs may be taken duly authenticated and certified, and a detailed panchnama may be prepared before such release.
(B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with. (C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. The undertaking/guarantee would be furnished at the time of release of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer."
15. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only they occupy substantial space of the police stations but upon being kept in open, are Page 7 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022 R/SCR.A/8245/2020 ORDER also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct that all the State Governments/ Union Territories/Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that the activities of each and every police stations, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the concerned Division/Commissioner of Police of the concerned cities/Superintendent of Police of the concerned district."
11. It can be seen from the said decision that the Court has made it amply clear that the insurer may be permitted to move a separate application for the release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court and such release shall be made within 30 days of the said application, after taking necessary photographs which is duly authenticated and certified and a detailed panchnama is drawn. The photographs so taken, may be used as secondary evidence during the trial hence, physical production of the vehicle can be dispensed with. The Court also has directed the insurer to submit an undertaking/ guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the insurance company in the event the learned Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. Such undertaking/ guarantee would be furnished at the time of release of vehicle, pursuant to the application for release of recovered vehicle. The Court also further directed and observed that looking to the corporate structure of the insurance company, personal bonds may Page 8 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022 R/SCR.A/8245/2020 ORDER be dispensed with.
12. In the said decision the Apex Court is more conscious about the seized vehicle lying with various police stations and they being prone to the natural decay on account of being kept in the open. The Court also is concerned that the costly parts of the vehicles on being stolen and cannibalized, the vehicle becomes unworthy of being driven on road.
13. Applying the law laiddown by the Supreme Court in the facts of the present case, the present petition deserves to be allowed and whereas appropriate direction deserves to be passed, for release of the vehicle as well as permitting sale of the vehicle after imposing appropriate conditions.
14. Thus, in view of the discussion and observations present petition is allowed. The authority concerned is directed to release the vehicle in question belonging to the petitioner, i.e. Xylo Car bearing registration No. GJ - 18 - BJ - 3061 on following terms and conditions that petitioner;
(i) shall furnish, by way of security, the bank guarantee of Rs.3,00,000/-.
(ii) shall file an undertaking before the Trial Court that the petitioner shall not transfer, alienate or use the vehicle in question in any manner which would violate the prohibition law till the trial is over and in case of exigency, alienation or transfer shall not be effected without specific prior permission of the concerned Court.
(iii) The petitioner is also directed to file an undertaking to produce the vehicle in question as and when directed by the concerned Trial Court.
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(iv) The petitioner shall not change the colour and scheme of the vehicle.
(v) Before handing over the possession of the vehicle in question, necessary photographs shall be taken and detailed panchnama in that regard shall be drawn and to be produced on the record of the case.
(vii) Additionally, if the I.O. finds it necessary, videography shall also be done at the cost of the petitioner.
(viii) The request of sale is acceded to. The petitioner - Finance Company is hereby permitted to auction the vehicle by way of public auction as per the standard code / rules and regulations of the applicant company which shall be followed strictly. The Police shall carry out the detailed panchnama at the time of release of the vehicle. Duly authenticated and certified versions of photographs and video recordings also shall be placed before the trial Court.
(ix) The applicant - finance company shall undertake and guarantee to remit the proceeds from the sale /auction of the vehicle that may be conducted at a near future date, to the Court if the learned Magistrate trying the criminal case asks for the same, at the end of the trial. Such an undertaking shall be furnished at the time of release of vehicle before the Court concerned, within six weeks from today.
(x) Before auction, the vehicle shall be valued by an independent valuer and the report shall be procured by the petitioner Finance Company.
(xi) In case of any dispute raised by the original owner, the Finance Company shall undertake to deposit the proceeds of Page 10 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022 R/SCR.A/8245/2020 ORDER the auction before the trial Court, if the learned trial Court so directs.
15. With the above, present application is accordingly disposed of. Rule is made absolute to the aforesaid extent. Registry is directed to communicate this order by fax or e-mail to the concerned authority.
(NIKHIL S. KARIEL,J) DRASHTI K. SHUKLA Page 11 of 11 Downloaded on : Thu Jan 13 04:19:05 IST 2022