Gujarat High Court
Arvindkumar Ravjibhai Chauhan vs State Of Gujarat on 7 September, 2018
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/SCR.A/7333/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 7333 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ARVINDKUMAR RAVJIBHAI CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
MR DHARMESH R PATEL(5592) for the PETITIONER(s) No. 1
MS. SHRUTI PATHAK, ADDITIONAL PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
RULE NOT RECD BACK(63) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 07/09/2018
ORAL JUDGMENT
1. What is challenged in the present writ petition under Article 227 of the Constitution of India are the order dated 02.07.2018 passed by learned Sessions Page 1 of 5 R/SCR.A/7333/2018 JUDGMENT Judge, Arvalli-Modasa in Criminal Revision Application No.21 of 2018 and the order dated 03.05.2018 passed by learned Judicial Magistrate First Class, Meghraj whereby both the courts below rejected the prayer of handing over the vehicle in question i.e. Mahindra Bolero Car having its registration No.GJ-07-BN-9919 in connection with the FIR being CR No.5027 of 2018 registered with Isri Police Station, District Arvalli 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 Page 2 of 5 R/SCR.A/7333/2018 JUDGMENT 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, 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. Considering the facts and circumstances of the present case and the arguments advanced by learned advocate for the parties, it can be seen that the Page 3 of 5 R/SCR.A/7333/2018 JUDGMENT present matter is squarely covered by the decision rendered by this Court in Special Criminal Application No. 7642 of 2018 (Hardikbhai Mukeshbhai Chauhan Vs. State of Gujarat) decided 05.09.2018.
5. In the result, this application is allowed. The learned trial Court concerned is directed to immediately release the vehicle in question i.e. Mahindra Bolero Car having its registration No.GJ-07- BN-9919 after due verification and following the procedure of recording such evidence as it thinks necessary as provided under section 451 of the Code of Criminal Procedure 1973 and on the petitioner fulfilling the following conditions.
(1) The petitioner shall 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. (2) The petitioner shall 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 Page 4 of 5 R/SCR.A/7333/2018 JUDGMENT trial.
(3) The petitioner shall produce the vehicle as and when the authority or the Court concerned directs him to do so.
With the above, this petition is disposed of. Rule is made absolute.
(R.P.DHOLARIA, J) SAURABH R. CHAUHAN Page 5 of 5