Gujarat High Court
Esskay Fincorp Limited Through ... vs State Of Gujarat on 5 March, 2021
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/SCR.A/8158/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8158 of 2020
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ESSKAY FINCORP LIMITED THROUGH BHALABHAI AJUBHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR MAHESH K POOJARA(5879) for the Applicant(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the Applicant(s) No. 1
MS NISHA THAKORE, APP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/03/2021
ORAL ORDER
1. The petitioner has preferred this petition, seeking invocation of extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Section 227 of the Constitution of India as also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973.
2. This application is preferred seeking release/return of muddamaal in nature of the Eicher Tempo bearing registration No. GJ21V0380.
3. It is the case of the petitioner that the petitioner is non banking finance company registered under the Companies Act, 1956 and engaged in the business of providing various type of financial services to its customers having various branch offices all over in India. The respondent no.3 herein Page 1 of 8 Downloaded on : Sun Jun 27 02:31:13 IST 2021 R/SCR.A/8158/2020 ORDER has purchased the vehicle in question Eicher Tempo and took the finance of Rs.5,40,719/ from the petitioner company and the said vehicle has been seized by the police in connection with the FIR No.11822021202089 of 2020 registered before the Navsari Rural Police Station, Navsari on 30.05.2020. The respondent no.3 has stop to make the payment of installments to the petitioner company and there is total outstanding of Rs.5,66,605/ and therefore, the petitioner company has filed this petition seeking return of muddamaal seized by the police.
4. The case of the prosecution is that on 30.05.2020, while the police personnels were on patrolling, they received a secret information of the vehicle in question carrying liqour and when police authorities intercepted the same near Boriyach Tol Plaza, on carrying out the search of the said vehicle, its driver was found carrying liquor without any pass or permit. Therefore, an FIR being C.R. No. 11822021202089 of 2020 came to be lodged with Navsari Rural Police Station under Sections 65(a), 65(e) and 81 of the Gujarat Prohibition Act.
5. This Court had issued rule, making the same returnable in the month of January, 2021. Today, learned Advocate appearing for the petitioner is heard at length.
6. Learned Advocate for the petitioner has urged that this Court has wide powers, while exercising such powers under Article 226 of the Constitution. It Page 2 of 8 Downloaded on : Sun Jun 27 02:31:13 IST 2021 R/SCR.A/8158/2020 ORDER can also take into account the ratio laid down in the case of 'SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT', AIR 2003 SC 638, wherein, the Apex Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police station premises.
7. Learned Additional Public Prosecutor appearing for the respondentState submits that prima facie case is made out on the basis of the FIR.
8. This Court (Coram: J.B. Pardiwala, J.) in the case of 'ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT' in Special Criminal Application No. 2185 of 2018, Dated: 05.04.2018, and in the earlier decision in 'PARESHKUMAR JAYKARBHAI BRAHMBHATT VS. STATE OF GUJARAT' in Special Criminal Application No. 8521 of 2017 and the allied matters decided on 15.12.2017 has held that the powers of the Magistrate to order interim release of the seized vehicle under Section 98(2) of the said 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. However, 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. In the recent decision of this Court in Special Criminal Page 3 of 8 Downloaded on : Sun Jun 27 02:31:13 IST 2021 R/SCR.A/8158/2020 ORDER Application No. 2185 of 2018, where, this Court, in exercise of the powers under Article 226 of the Constitution, has ordered the release of the vehicle, pending trial. It would be appropriate to refer to the order passed by this Court in Special Criminal Application No. 1126 of 2018, Dated: 21.06.2018, in case of 'GUJARAT STATE ROAD TRANSPORT CORPORATION THROUGH DEPOT MANAGER, MORBI, VS. STATE OF GUJARAT'.
9. On hearing learned advocates appearing for 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.
9.1. 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.
9.2. 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:Page 4 of 8 Downloaded on : Sun Jun 27 02:31:13 IST 2021
R/SCR.A/8158/2020 ORDER
"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 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."
9.3. 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 Page 5 of 8 Downloaded on : Sun Jun 27 02:31:13 IST 2021 R/SCR.A/8158/2020 ORDER 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 that 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. Resultantly, this application is ALLOWED. The authority concerned is directed to RELEASE the vehicle of the petitioner, being Eicher Tempo bearing registration No. GJ21V0380, on the following terms and conditions.Page 6 of 8 Downloaded on : Sun Jun 27 02:31:13 IST 2021
R/SCR.A/8158/2020 ORDER (i) Applying the law to the factual matrix
available in the case of the present applicant and also on adhering to the letter and spirit of the law laid down, the request of the applicant has been allowed of handing over the vehicle in Special Criminal Application No.5119 of 2019, however, that order would be insufficient for the finance company to get the actual fruits of this decision.
(ii) Resultantly, the request of sale is acceded to. The finance Company will be permitted to auction publicly the vehicle 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.
(iii) If there are any allegations with regard to the hiding of muddamal in cavity, the same shall be accordingly videographed. 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 two weeks from today.
Page 7 of 8 Downloaded on : Sun Jun 27 02:31:13 IST 2021R/SCR.A/8158/2020 ORDER (iv) In the original order for the release of
vehicle, since there was a direction for the bond, considering the corporate structure of the petitioner company, it shall be the bank guarantee instead of bond, which shall be furnished.
11. With the above, present application is accordingly disposed of. Direct service is permitted.
Accordingly, Rule is made absolute. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) NEHA Page 8 of 8 Downloaded on : Sun Jun 27 02:31:13 IST 2021