Gujarat High Court
State Of Gujarat vs Yogendrasinh Ranjitsinh Rajput on 1 April, 2024
NEUTRAL CITATION
R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2279 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
YOGENDRASINH RANJITSINH RAJPUT
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Appearance:
MR. L.B. DABHI, LD. ADDL. PUBLIC PROSECUTOR for the Applicant(s) No.
1
MR. MH SHEKHAWAT(7194) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 01/04/2024
ORAL JUDGMENT
1. By way of this application, the applicant-State seeks to invoke the extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Article 227 of the Page 1 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined Constitution of India so also inherent powers under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing of the order dated 03.10.2017 passed by learned 2nd Ad-hoc Addl. District & Sessions Judge, Valsad in Criminal Revision Application No.252 of 2017 and to confirm the order dated 10.08.2017 passed in relation to offence registered at Valsad City Police Station, Valsad being III-C.R. No.16 of 2017 by the learned Judicial Magistrate, First Class, Valsad.
2. The facts giving rise to the present application may be summarized as under;
2.1 One Pramod Shaligram, Police Constable, Buckle No.501, serving at L.C.B., Valsad lodged a first information report stating that while he was on patrolling duty along with the other police staff, at that time, one white coloured unnumbered Alto Car overtook them and moved ahead which created suspicion in their mind about illegal trafficking of prohibited liquor and, therefore, the police also overtook the said vehicle and gave a signal to the driver of the vehicle to stop the car, however, the driver immediately stopped the car and tried to ran away. Therefore, the police staff followed him, however, taking advantage of the darkness, he fled into the bush situated next to the highway and, therefore, could not be caught. Thereafter, when the said car was searched, number of bottles and tins of whiskey and beer were found. The police also seized the alleged Alto Car. Accordingly, offence under Sections 65(e) and 116B of the Prohibition Act was registered.
3. Learned APP Mr. L.B. Dabhi appearing for the applicant- State of Gujarat submits that a complaint came to be Page 2 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined registered by a public servant serving in the police department as a head constable being C.R. No.III-16 of 2017 for the offence punishable under Sections 65(e) and 116(B) of the Prohibition Act alleging illegal transportation of the prohibited liquor by the accused persons. It is alleged in the FIR that upon suspicion being created in the mind of the police with regard to illegal trafficking of prohibited liquor, they intercepted one Alto Car from which number of bottles and tins of whiskey and beer were found and, therefore, the said car was then seized by the police. Learned APP Mr. Dabhi further submits that, therefore, the owner of the said vehicle filed an application under section 451 of Cr.P.c before the learned Judicial Magistrate, First Class, Valsad for interim release of the said vehicle by producing all the relevant materials regarding the ownership of the vehicle. After hearing both the parties and appreciating all the materials available on record, the learned Magistrate rejected the said application vide order dated 10.08.2017 by observing that there is a specific bar under Section 98(2) of the Gujarat Prohibition Act which provides that any muddamal article seized in connection with the prohibition offence, cannot be released on any kind of bond or surety till the final judgment of the court when the quantity of the seized liquor exceeds 10 liter. Admittedly, the prohibited liquor found from the vehicle in question was more than 10 liter and, therefore, the learned Magistrate has rightly rejected the application as there are specific restrictions imposed by the statute itself.
4. The aforesaid order passed by the learned JMFC, Valsad, was challenged before the revisional court by filing a revision application which was allowed by the learned Sessions Court, Page 3 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined Valsad by impugned order dated 03.10.2017, ordering interim release of the muddamal vehicle by quashing and setting aside the order of the learned Judicial Magistrate, Valsad dated 10.08.2017. Being aggrieved, the applicant is here before this Court with the present application.
5. Learned APP Mr. Dabhi submits that the impugned order passed by the learned Sessions Judge is ex-facie, illegal, null and void and suffers from various infirmities resulting in serious miscarriage of justice. A similar issue came up for consideration before this Court wherein His Lordship then was (Coram: J.B. Pardiwala, J.), now the Judge, Supreme Court of India, in a very detailed and celebrated judgment in the case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat, passed in Special Criminal Application No.8521 of 2017 and allied matters, dated 15.12.2017, after referring to the relevant provisions and the tenets of law enunciated by the Hon'ble Apex Court as well as the notification issued by the State, has made the position of law very clear by holding 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. It is further held that the courts below do not have any 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 liters in quantity. The said case went up to the Supreme Court, and the Hon'ble Apex Court has also confirmed the view taken by the then Single Bench of this Court in the above referred decision. Thus, In view of the aforesaid settled proposition of law, the Page 4 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined trial court does not have any jurisdiction to order interim release of the muddamal vehicle and, therefore, the impugned order passed by the learned Sessions Court is required to be quashed and set aside and the order passed by the learned Judicial Magistrate be confirmed.
6. Learned advocate Mr. M.H. Shekhawat for the respondent submits that the respondent is the registered owner of the disputed vehicle Maruti Suzuki Alto K 10 VXI bearing registration No.GJ-19-AF-6418. The aforesaid vehicle was seized on 14.02.2017 and is lying unattended at the Police since then. No useful purpose shall be served by detaining the disputed vehicle under custody. Furthermore, as seized vehicle is lying unattended in the open sky at the concerned police station, same shall get rusted and its value shall also diminish. As such interest of justice demands that seized vehicle of respondent be ordered to be released.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Court below committed any error in passing the impugned orders.
8. Before delving into the merits of the matter, I would like to refer to and rely upon the law laid down by the then Coordinate Bench of this Court in Pareshkumar Jaykarbhai (supra), wherein the said Coordinate Bench (Coram: J.B. Pardiwala, J.), leaving without an inch of doubt, has laid down very much appreciated guiding principles as regards release of muddamal article seized in connection with the prohibition Page 5 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined offence, the significant observations of which, are as under;
"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 Sub-Section (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, 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 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 :Page 6 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024
NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined 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 Section 99 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 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, Page 7 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined molasses, materials still utensil, implement or apparatus in respect of which an offence appears to have been committed 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. Sub- Section (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 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 Page 8 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined 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 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 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 Page 9 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined 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.
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."
9. Thus, the then Coordinate Bench took the view that Section 98 (2) of the Act, 1949 specifically excludes the power of the Magistrate to order interim release of the seized vehicle under Sections 451 or 457 of the Criminal Procedure Code, as the case may be. The Court made itself very clear in the judgment referred to above that the trial courts have no jurisdiction to order interim release of the seized vehicle pending the trial if the quantity of the liquor recovered Page 10 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined exceeds ten liters. This Court also clarified that in view of the provisions of Section 98 (2) of the Act, 1949, the general principles as laid down by the Supreme Court 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.
10. The principles laid down by the then Coordinate Bench in Pareshkumar Jaykarbhai (supra), while dealing with the identically situated issue, should be treated as the binding precedent and has to be followed by the trial courts.
11. According to Sir John Salmond, once upon a very eminent jurist in New Zealand, "A precedent is said to be a judicial decision which contains its principles. The stated principle which thus forms its authoritative element is called the ratio decidendi. The concrete decision is thus binding between the parties, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large."
12. In the aforesaid context, a five Judge Bench of the Hon'ble Apex Court, in Chandra Prakash v. State of U.P., (2002) 4 SCC 234, after considering series of earlier ruling reiterated that:
"22. ... The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court."Page 11 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024
NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined (emphasis supplied)
13. It may be necessary to quote the opinion of Chief Justice Griffith of the High Court of Australia in the Ex Parte Brisbane Tramways Co. Ltd. (No. 1), [1914] 18 C.L.R 54:
"In my opinion, it is impossible to maintain as an abstract proposition that Court is either legally or technically bound by previous decisions. Indeed, it may, in a proper case, be its duty to disregard them. But the rule should be applied with great caution, and only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon the mistaken assumption of the continuance of a repealed or expired Statute, or is contrary to a decision of another Court which this Court is bound to follow; not, I think, upon a mere suggestion, that some or all of the members of the later Court might arrive at a different conclusion if the matter was res integra. Otherwise there would be great danger of want of continuity in the interpretation of law."
14. In view of the above referred tenets of law, I am of the view that the law laid down by the High Court of the State on a particular issue, should be the binding precedent to all the trial courts and they should follow the guiding principles already enunciated by the High Court and that too when also confirmed by the Supreme Court, while come across to decide an identically situated issue and should not take a view contrary to what has already been established by the High Court on the subject so as to maintain the continuity in the interpretation of law.
15. In light of the aforesaid discussion, the present application succeeds and is hereby allowed. The order dated Page 12 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024 NEUTRAL CITATION R/SCR.A/2279/2018 JUDGMENT DATED: 01/04/2024 undefined 03.10.2017 passed by learned 2 nd Ad-hoc Addl. District & Sessions Judge, Valsad in Criminal Revision Application No.252 of 2017 is hereby quashed and set aside, and the order dated 10.08.2017 passed by the learned JMFC, Valsad below the application filed for release of Muddamal in relation to offence registered at Valsad City Police Station, Valsad being III-C.R. No.16 of 2017 is hereby confirmed. The Muddamal vehicle, i.e., Maruti Suzuki Alto K 10 VXI bearing registration No.GJ-19-AF- 6418 be directed to be taken back into the police custody. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J) VAHID Page 13 of 13 Downloaded on : Fri Apr 12 23:10:41 IST 2024