Gujarat High Court
Vikrambhai Dilipsinh Solanki vs State Of Gujarat on 4 February, 2021
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
R/SCR.A/375/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 375 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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VIKRAMBHAI DILIPSINH SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR GIRISH D CHAVDA(3226) for the Applicant(s) No. 1
MR KAUSHIK D CHAVDA(6657) for the Applicant(s) No. 1
MS KRINA CALLA APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 04/02/2021
ORAL JUDGMENT
1. Rule. Ms.Krina Calla, learned APP waives service of rule on behalf of the Respondent-State.
2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner, who is an Page 1 of 5 Downloaded on : Tue Aug 31 14:09:42 IST 2021 R/SCR.A/375/2021 JUDGMENT owner of vehicle bearing Registration No.GJ-38-AC-5001, who was found to be carrying along with him 28 bottles of Indian Made Foreign Liquor (for short, 'IMFL') of 750 ML each bringing the quantity to be 21 liters, sought for the custody of the muddamal vehicle seized by the police pursuant to the offence registered at Vitthalpur Police Station, Ahmedabad (Rural). The petitioner is prosecuted for offence under the Gujarat Prohibition Act (for short, 'the Act') on the charge of possessing 'IMFL' which is being transported on his own Motorcycle bearing Registration Number, as aforesaid. Since the vehicle was also seized, the petitioner applied to the learned Magistrate vide application dated 20.8.2020 for interim custody under Section 451 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.). The learned Magistrate vide order dated 23.9.2020 rejected the said application on the ground that in view of the judgment of this Court in the case of Pareshkumar Jaykarbhai Brahmbhatt V/s. State of Gujarat vide Special Criminal Application No.8521 of 2017 held in paragraph No.65 that 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 'the Act', if the quantity of the liquor recovered exceeds 10 litres in quantity.
3. Vide Notification dated 6.2.2012, the State Government has framed Rules under Section 143 of the 'the Act' called Gujarat Prohibition (Liquor Samples and Determination of Quantity Seized Liquor) Rules, 2012 (for short, 'the Rules') whereby in Rule 9 it is provided that vehicle carrying liquor more than 10 liters shall be liable to be confiscated in accordance with the Page 2 of 5 Downloaded on : Tue Aug 31 14:09:42 IST 2021 R/SCR.A/375/2021 JUDGMENT provisions of Sub-Section (2) of Section 98 of the Act. However, vide Notification dated 2nd July, 2019, the quantity as mentioned in 'the Rules' came to be substituted to be 20 liters instead of 10 liters. However, the fact remains that, in the present case, quantity carried in the vehicle seized is more than 20 Liters.
4. Vide Sub-Section (2) of Section Section 98 of the Act, there appears some restriction on the Court concerned for release of the vehicle on bond or surety till the final judgment of the Court where the quantity of the seized liquor is exceeding the quantity as may be prescribed by 'the Rules'. However, this Court (Coram:
J.B.Pardiwala, J.) vide order dated 5.4.2018 passed in Special Criminal Application No.2185 of 2018 held that this Court under Article 226 of the Constitution of India, can release the muddamal vehicle.
5. Since the present vehicle - two wheeler is required for the daily commutation by the petitioner for his work and as averred in the additional affidavit dated 20.1.2021, there is no criminal antecedents of the petitioner, I am inclined to release the vehicle, pending trial against him being Motor Cycle Registration No.GJ- 38-AC-5001, on suitable terms and conditions. Section 99 of the Act provides that during the course of trial, the Court decides that anything is liable to confiscation, the Court can give an option to an owner of article / muddamal other than the intoxicant, hemp, mhowra flowers or molasses to pay fine as the Court deems fit in lieu of confiscation. The purpose behind making such provisions is very clear that if owner of the vehicle is able to Page 3 of 5 Downloaded on : Tue Aug 31 14:09:42 IST 2021 R/SCR.A/375/2021 JUDGMENT establish that he had exercised due care in preventing the commission of offence in respect of vehicle then no confiscation can be ordered. However, in the case of confiscation of the vehicle also when owner of the vehicle is to be given an option of payment of fine, more particularly, it being two wheeler which has become need of a commuter, it is desirable that it should be returned back to the owner in absence of claim for the same by any other one. The factum of no criminal antecedents is also supported by the written instructions provided to the learned APP by the Investigating Authority. Mr.Chavda, learned advocate for the petitioner submitted that this vehicle is also not used for commission of offence under 'the Act' in any other case except the present one.
6. Therefore, the Motorcycle bearing Registration No.GJ-38-AC-5001 is ordered to be released to the applicant pending trial on conditions that:
(A) The petitioner is directed to give solvent surety (I could have ordered providing Bank Guarantee but considering the avocation of petitioner and age, I have refrained myself for doing so) of Rs.25,000/- which is the value of vehicle assessed in presence of panch witnesses by the Investigating Authority to secure the payment of fine in lieu of confiscation if at all ordered by the Court concerned;
(B) The petitioner is directed not to sell / mortgage or in any manner encumber the ownership of the vehicle till the conclusion of trial or confiscation proceedings, if at all initiated against him.Page 4 of 5 Downloaded on : Tue Aug 31 14:09:42 IST 2021
R/SCR.A/375/2021 JUDGMENT (C) The petitioner shall produce the vehicle as and when
necessary and directed by either Investigating Agency or the Court concerned;
(D) 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 trial.
(E) In the event, the present vehicle is found to be involved in any subsequent offence, the vehicle shall stand confiscated.
(F) Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and detailed panchnama in that regard, if not already done, shall also be drawn for the purpose of trial.
(G) If, the Investigating Officer finds it necessary the Videography of vehicle shall also be done at the cost of petitioner.
Rule made absolute to the aforesaid extent.
(UMESH A. TRIVEDI, J) ASHISH M. GADHIYA Page 5 of 5 Downloaded on : Tue Aug 31 14:09:42 IST 2021