Gujarat High Court
Munavarbhai Dadabhai Sandhi vs State Of Gujarat on 19 July, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/4996/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4996 of 2018
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MUNAVARBHAI DADABHAI SANDHI
Versus
STATE OF GUJARAT
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Appearance :
MR PRAVIN GONDALIYA(1974) for the PETITIONER(s) No. 1
MS MAITHILI MEHTA, ADDL.PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 19/07/2018
ORAL ORDER
1. RULE. The formal service of notice of Rule is waived by the learned Additional Public Prosecutor on behalf of the respondentState.
Rule is fixed forthwith on consent.
2. The petitioner has preferred the present petition seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Section 227 of the Constitution of India so also inherent powers under Section 482 of the Code of Criminal Procedure, 1973.
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3. The challenge in this petition is made to the order dated April 27, 2018 passed by the learned 2nd Additional Sessions Judge, Rajula, while dealing with Criminal Revision Application No.13 of 2018 as well as order dated April 10, 2018 passed by the learned Additional Chief Judicial Magistrate, Rajula, whereby the Courts below have denied the grant of custody of the vehicle in question to the petitioner.
4. It is the case of the petitioner that he is the owner of the scooter bearing registration number GJ32E0049 and it is duly registered with the transport department of the Government of Gujarat.
5. It is the say of the petitioner that his scooter was taken by the accused persons of the first information report being Prohi.C.R.No.6 of 2018 on January 07, 2018, whereby more than 10 litres of liquor was found from the said vehicle and, therefore, the first information report in question was lodged against them for the offences punishable under sections under Page 2 of 21 R/SCR.A/4996/2018 ORDER sections 65AA, 116B, 81 and 98(2) of the Gujarat Prohibition Act. The accused persons, who were given the vehicle in question by the petitioner, are being prosecuted for the said offences.
6. An application came to be moved by the petitioner before the learned Additional Chief Judicial Magistrate, Rajula, which came to be rejected vide order dated April 10, 2018, ignoring certain vital facts and the law on the subject.
7. Aggrieved petitioner had also approached the learned 2nd Additional Sessions Judge, Rajula, who too denied custody of the vehicle in question to the petitioner, which has been fully owned by the petitioner.
8. The present petition, therefore, has been preferred seeking the quashment of both the orders passed by the Courts below and also for release of the vehicle, pending the trial.
9. Today, this Court has heard the learned counsel appearing for the petitioner Shri Pravin Page 3 of 21 R/SCR.A/4996/2018 ORDER Gondaliya at length. He has urged that the trial Court ought to have recognized the fact that the vehicle is seized by the police authorities, which is owned by the petitioner. It is a brand new vehicle and its nonuse for a long period would result into many problems, including the decay of its condition. He has further urged that for the offence on the part of the persons who were given the said vehicle for only use by the petitioner, the petitioner cannot be penalized and the law on the subject has been overlooked by both the Courts below, while rejecting the applications for release of the vehicle in question.
9.1 Much reliance is placed by the learned counsel appearing for the petitioner on the said order to urge that this Court while exercising the powers under Article 226 of the Constitution also can take into account the ratio laid down in the case of Sunderbhai Ambalal Desai v. State of Gujarat1, wherein the Apex Court lamented the scenario of number 1 AIR 2003 SC 638 Page 4 of 21 R/SCR.A/4996/2018 ORDER of vehicles having been kept unattended and becoming junk within the police station premises. He has urged that the vehicle be handed over, particularly, when such a vehicle was used by the accused persons who were given the vehicle by the petitioner petitioner and the petitioner has been suffering since then.
10. This Court has also heard the learned Additional Public Prosecutor Ms.Maithili Mehta, who has urged this Court that the appropriate conditions be imposed against the petitioner, while ordering the release of the vehicle. She has further pointed out that this Court (Coram:
J.B. Pardiwala, J.) in the case of Anilkumar Ramlal @ Ramanlalji Mehta v. State of Gujarat2, and in the earlier decision in the case of Pareshkumar Jaykarbhai Brahmbhatt v. State of Gujarat3, has held that the powers of the Magistrate to order interim release of the seized vehicle under Section 98(2) of the said 2 Unreported decision of this Court (Coram : J.B. Pardiwala, J.) dated April 05, 2018 rendered in Special Criminal Application No.2185 of 2018.
3 Unreported decision dated December 15, 2017 rendered while dealing with Special Criminal Application No.8521 of 2017 and allied matters.Page 5 of 21
R/SCR.A/4996/2018 ORDER Act has been curtailed, and therefore, the Courts below have been held to have no jurisdiction to order interim release of the vehicle, pending trial, where, the vehicle is seized in connection with the offence under the Prohibition Act and the quantity of the liquor seized exceeds 10 liters. She has further urged that, of course, powers of this Court under Article 226 of the Constitution to order release of the vehicle can be exercised at any time whenever the Court deems it appropriate. She has also pointed out the recent decision of this Court in the case of Anilkumar Mehta (supra), where this Court, in exercise of the powers under Article 226 of the Constitution, has ordered the release of the vehicle, pending trial.
11. On thus hearing both the sides, this Court notices both the Courts below have denied the custody of vehicle to the petitioner relying on the judgment of this Court in Pareshkumar Jaykarbhai Brahmbhatt (supra), which is presently pending before the Apex Court for Page 6 of 21 R/SCR.A/4996/2018 ORDER consideration. What was considered by the Court was whether the trial Courts have powers of interim release of vehicles under section 98(2) of the Prohibition Act, where the quantity of liquor seized was more than 10 litres and the same has been answered in negation. After examining in detail the scheme of the Act, this Court (Coram: J.B. Pardiwala, J.) has held and observed thus :
"50. The scheme of Section 98 would show that the things mentioned in clauses (a) to
(d) are straightway to be confiscated. But in respect of any receptacle, package or covering in which any of the articles liable to confiscation under SubSection (1) are found and the animals, carts, vessels, or other conveyances used in carrying any such articles they are not to be confiscated straightway but they are liable to confiscation. There is understandable distinction between the things which must be straightway confiscated as provided by Section 98(1) and the things which are liable to confiscation. This should be in the very nature of things. Things like intoxicant, hemp, mhowra flowers, molasses, materials, Page 7 of 21 R/SCR.A/4996/2018 ORDER still utensil, implement or apparatus in respect of which offence appears to have been committed under the Bombay Prohibition Act should straightway be confiscated because their possession per se is prohibited. They must be confiscated because they cannot be returned otherwise to the person to whom it is returned would be committing the same offence over again.
They are articles, the possession of which is per se prohibited in view of the provisions contained in the Bombay Prohibition Act. But vessels, conveyances, carts and animals used for transport of such prohibited articles are not per se prohibited and therefore, they cannot be straightway confiscated. They are liable to confiscation in view of the use made of such things. Section 99 provides the procedure to be followed by the Court in respect of the things liable to confiscation before they are confiscated. Section 99 provides as under :
"99. When during the trial of a case for an offence under this Act the court decides that anything is liable to confiscation under the foregoing section, the Court may after hearing the person, if any, claiming any right thereto and the evidence if any, which he produces in support of his claim Page 8 of 21 R/SCR.A/4996/2018 ORDER order confiscation or in the case of any article other than an intoxicant, hemp, mhowra flowers or molasses give the owner an option to pay fine as the court deems fit in lieu of confiscation :
Provided that no animal, cart, vehicle or other conveyance shall be confiscated if the owner thereof satisfies the court that he had exercised due care in preventing the commission of the offence."
It appears that the articles which are liable to confiscation can only be confiscated after hearing the person claiming any right thereto and the evidence if any which he produces in support of his claim. The proviso to Section99 makes it abundantly clear that vessel or vehicle or other conveyance cannot be confiscated if the owner satisfies the Court that he had exercised due care in preventing the commission of the offence. Therefore, when anything liable to confiscation is to be confiscated the Court has to hear the person claiming any right thereto. Such a person has a right to lead evidence in support of his claim. He has also an option to pay fine in lieu of confiscation. In respect of the vehicle or conveyance the same cannot be confiscated if the owner Page 9 of 21 R/SCR.A/4996/2018 ORDER shows that he had taken sufficient care to prevent the commission of the offence. He can do so by leading evidence. Therefore, before the Court proceeds to confiscate a vehicle, vessel or a conveyance, it must give an opportunity to the owner thereof to show whether he had used sufficient care to prevent the commission of the offence. In fact before an order of confiscation is passed an inquiry as contemplated by Section 99 would be made. Such an inquiry is to be made in respect of the articles liable to confiscation and not those which are required to be confiscated as a necessary corollary as provided in Section 98(1). The order of confiscation is not a consequential order which must follow the findings of fact in the case and a duty is cast on the Court to confiscate anything in respect of which the offence appears to have been committed. One should not ignore distinction made by the Legislature between Sections 98(1) and 98(2) of the Bombay Prohibition Act. Section 98(1) provides for confiscation of certain things in respect of which an offence appears to have been committed. In respect of those things such as intoxicant, hemp, mhowra flowers, molasses, materials still utensil, implement or apparatus in respect of which an offence appears to have been committed Page 10 of 21 R/SCR.A/4996/2018 ORDER they are straightway to be confiscated. As soon as the Court comes to the conclusion that in respect of the articles set out above the offence appears to have been committed, under the Bombay Prohibition Act, the Court has no option but to confiscate those articles. SubSection (2) makes a distinct departure in respect of these things or articles which are not to be confiscated straightway but which are liable to confiscation and the things which are liable to confiscation have to be dealt with as provided by Section 99. Therefore, in respect of the things which are not to be confiscated but which are liable to the confiscation he Court has to follow the procedure prescribed in Section99 before the order of confiscation in respect of such things could be passed. It cannot, therefore, be said that the order of confiscation is a mere consequential order following the findings of fact recorded by the Court. It may be that a person may be held guilty of possession of liquor imported in the motor track and yet the truck need not be confiscated if it is found that it belongs to some other person who had exercised due care for preventing the commission of the offence. To take a simple illustration, a person in transport business was approached with a request that Page 11 of 21 R/SCR.A/4996/2018 ORDER the truck is to be hired for transporting vegetables and while loading vegetables a few bottles of liquor were also loaded. If a search of the truck is taken and bottles are recovered the person who hired the truck and transported vegetables would be in possession of the bottles and would be liable for possession of liquor. But in such circumstances, it is unconceivable that the motor truck could also be straightway confiscated. Therefore, before the motor truck could be confiscated the Court must make an inquiry as envisaged by Section 99 and give an opportunity to the owner of the motor truck to show that he had exercised due care for preventing the commission of the offence and if the Court is satisfied that he had exercised due care, the truck cannot be confiscated. Therefore, it cannot be said that in all cases the order of confiscation is a consequential order or that there is a duty cast on the Court to confiscate every article coming before the Court trying the offences under the Bombay Prohibition Act.
51. I am unable to agree with the submission of Mr. A.D. Shah, the learned Amicus Curiae that the Court should read into Section 98(2) of the Act, 1949, the power of the Magistrate to release the Page 12 of 21 R/SCR.A/4996/2018 ORDER vehicle in exercise of power under Sections 451 or 457 of the Cr.P.C., as the case may be, otherwise Section 99 of the Cr.P.C. would be rendered redundant. In my view, the entire purpose of the legislation would be defeated if any other literal construction was to be adopted. I am in agreement with the submission of Mr. Raju, the learned Amicus Curiae that the words "during the trial of a case" in Section 99 of the Act, should not be construed as at any stage of the trial. In my view, Mr. Raju, the learned Amicus Curiae, is right in submitting that Section 99 of the Act comes into play when the Court decides to pass an appropriate order as regards the disposal of the muddamal property under Section 452 of the Code of Criminal Procedure. Section 452 contemplates disposal of property at the conclusion of the trial and says that when an inquiry or trial for any Criminal Court is concluded, the Court may make such order as it thinks fit for its disposal. This Section 452 refers to a stage when the trial is concluded. The word "inquiry" in Section 452 should be construed as one necessary for the disposal of the property i.e. confiscation, etc. The word "concluded" in Section 452 means, in my opinion, "concluded after a full hearing with a Page 13 of 21 R/SCR.A/4996/2018 ORDER final judgment for determination of the case against the accused". For, clearly an order under Section 452 can be made only on the basis of the evidence recorded in the inquiry or trial, and in accordance with the findings, the Magistrate may arrive at with material. Therefore, Section 99 comes into play on conclusion of the trial I.e. when the Court decides to confiscate the vehicle. At that stage, the Court may conduct a formal inquiry and in such an inquiry, an opportunity has to be given to the person claiming the possession of the vehicle. At that stage, the proviso to Section 99 comes into play. In accordance with the proviso, the owner may adduce necessary evidence to satisfy the Court that he had exercised due care in preventing the commission of the offence and although the accused persons may be held guilty and convicted, yet the vehicle involved in the commission of the offence may not be confiscated. There is one more reason to take this view. In Section 99, the words are "give the owner an option to pay fine as the Court deems fit in lieu of confiscation". The question of payment of fine would come only on conclusion of the trial and not at an earlier stage.
XXX XXX XXX
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65. My final conclusion is that Section 98(2) of the Act, 1949 curtails the power of the Magistrate to order interim release of the seized vehicle under Sections 451 or 457 of the Cr.P.C., as the case may be. The Courts below will have no jurisdiction to order interim release pending the trial of the seized vehicle in connection with the offence under the Act, 1949, if the quantity of the liquor recovered exceeds 10 litres in quantity. 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. I am unable to hold that the Magistrate and Revisional Court have committed any error in rejecting the applications preferred by the respective applicants under Sections 451 or 457 of the Cr.P.C. In view of the provisions of Section 98(2) of the Act, 1949, the general provisions laid down in Sunderbhai Ambalal Desai vs. State of Gujarat [JT (2002) 10 SC 80] cannot be pressed into service for release of vehicle from the Court of Magistrate."
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12. This decision has been followed by the trial Court and even the revisional Court, resulting into their not exercising the powers under section 98(2) of the Prohibition Act for releasing by way of interim way the vehicle in question seized during the course of investigation.
13. Without determining the issue raised by the petitioner, reference to sections 98 and 99 and other provisions of the Gujarat Prohibition Act and reserving that to be determined in future in an appropriate proceedings since the seizure of the vehicle and determination of issue raised of the powers of the trial Court being a contentious issue, this Court chooses not to enter into that arena in the present matter and instead exercise the powers under Articles 226 and 227 of the Constitution.
13. This Court (Coram: J.B. Pardiwala,J.) in the case of Anilkumar Mehta (supra) has also released the vehicle recently under Articles 226 Page 16 of 21 R/SCR.A/4996/2018 ORDER and 227 of the Constitution, exercising its powers to do that even at an initial stage.
14. Here, it would be worthwhile to refer to the observations made by the Apex Court in the decision in the case of Sunderbhai Ambalal Desai (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 Page 17 of 21 R/SCR.A/4996/2018 ORDER 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 suchseized vehicles at the police stations 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."
17. 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, 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 the third person. If Insurance company fails to take Page 18 of 21 R/SCR.A/4996/2018 ORDER 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 vehicle, 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 that concerned Magistrate would take immediate action for ascertaining 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.
18. Under the circumstances, while allowing this application, exercising powers under Page 19 of 21 R/SCR.A/4996/2018 ORDER Article 226 of the Constitution, in case of the petitioner, who should not be losing the income, who is even otherwise the owner of the vehicle in question, the accused who were given the scooter by the petitioner are alleged to have committed the offence, leading to the seizure of the vehicle in question.
19. Resultantly, the present petition succeeds and the same is, accordingly, allowed. The authority concerned is directed to release the vehicle of the petitioner being scooter bearing Registration No.GJ32E0049 in his favour on the following terms and conditions that the petitioner shall :
(i) furnish surety in terms of bond of Rs.50,000/ (Rupees Fifty Thousand only) and a bank guarantee of the equivalent amount;
(ii) file an undertaking before the trial Court that till conclusion of the trial, prior to selling, transferring or alienating the said vehicle in any mode or manner, prior permission of the concerned trial Court be taken;Page 20 of 21
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(iii) also file an undertaking to produce the
vehicle in question as and when directed by the trial Court;
19.1 Before handing over the possession of the vehicle in question to the petitioner, necessary photographs shall be taken by the Investigating Officer and a detailed panchnama in that regard shall also be drawn for the purpose of trial. If, the Investigating Officer finds it necessary, videography of the vehicle in question also shall be done.
Expenses towards the photographs and the videography shall be borne by the petitioner, which he can recover from the accused persons.
Rule is made absolute, accordingly.
Direct Service is permitted.
(MS SONIA GOKANI, J) Aakar Page 21 of 21