Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Natvarbhai Budhiyabhai Patel vs State Of Gujarat on 11 June, 2020

Equivalent citations: AIRONLINE 2020 GUJ 1700

Author: B.N. Karia

Bench: B.N. Karia

        R/SCR.A/1862/2020                                    ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CRIMINAL APPLICATION NO. 1862 of 2020

==========================================================
                     NATVARBHAI BUDHIYABHAI PATEL
                                 Versus
                          STATE OF GUJARAT
==========================================================
Appearance:
DEVESH K SHAH(9595) for the Applicant(s) No. 1
KAIVAN M DASTOOR(9322) for the Applicant(s) No. 1
MS. M.H .BHATT, APP for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                            Date : 11/06/2020

                             ORAL ORDER

Rule returnable forthwith. Learned APP waives service of notice of rule of rand on behalf of respondent­State.

1. The petitioner has preferred this 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 of this Court under Section 482 of the Code of Criminal Procedure, 1973.

2. This application has been preferred seeking release of Muddamal Vehicle i.e Black Coloured Skoda bearing RTO Registration No.GJ 05 RD 6668.

Page 1 of 9 Downloaded on : Thu Jun 11 23:06:58 IST 2020

R/SCR.A/1862/2020 ORDER

3. It is the case of the petitioner that he is the owner of the aforesaid vehicle and it is duly registered with the transport department of the Government. He is, therefore, before this Court.

4. The case of the prosecution is that while the police personnels were on patrolling in Surat City, they received a secret information that one Kajalben Harshadbhai Patel and her mother Minaben Mohanbhai Patel were indulged in the sale of liquor along with other persons. That the police officials along with the Panch witnesses raided the location where as per the information, the sale of liquor was being conducted. That upon further search, they saw a lady washing a car being metalic black coloured Skoda vehicle bearing registration No. GJ 05 RD 6668. Upon inquiring her name the police identified her as Minaben Patel and further, they also saw a lady washing a cabin who was also inquired by the police and upon inquiring they identified her as Kajalben Patel. In this matter several persons were interrogated and identified from the spot. When police authorities intercepted the same, on carrying out Page 2 of 9 Downloaded on : Thu Jun 11 23:06:58 IST 2020 R/SCR.A/1862/2020 ORDER the search of the said vehicle, its driver was found carrying liquor without any pass or permit. Therefore, an FIR being Prohibition / III C.R. No.35(11210045200035) of 2020 came to be lodged with Pandesara Police Station, Dist­Surat for the offence under the Gujarat Prohibition Act.

5. This Court had issued rule. 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 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. No muddamal of liquor was recovered by the police from the motor vehicle seized in the offence nor the name of the present applicant is shown in the complaint. Learned advocate for the applicant urged that, of course, powers of this Court under Article 226 of the Constitution to Page 3 of 9 Downloaded on : Thu Jun 11 23:06:58 IST 2020 R/SCR.A/1862/2020 ORDER order release of the vehicle can be exercised at any time, whenever the Court deems it appropriate. He also pointed out that the recent decision of this Court in Special Criminal Application No. 4149 of 2019, where, this Court, in exercise of the powers under Article 226 of the Constitution, has ordered the release of the vehicle, pending trial.

7. Learned APP for the respondent­State has submitted a report dated 10th June 2020 from the office of the State Monitoring Cell, Gujarat State, Gandhinagar and argued that the motor vehicle seized by the police in the offence was used for transporting the stock of the liquor. She has further submitted that, however, this Court (Coram: Hon'ble Mr. Justice J. B. Pardiwala, J.) in Special Criminal Application No. 2185 of 2016 on dated 05.04.2018 in the case of ANILKUMAR RATILAL V. STATE OF GUJARAT has taken a contrary view in releasing the muddamal vehicle involved in the offence under the Gujarat Prohibition Act. It is further submitted that one SLP (Cri.) No. 886 of 2018 is pending before the Hon'ble Apex Court in respect of said issue, and therefore, no powers would Page 4 of 9 Downloaded on : Thu Jun 11 23:06:58 IST 2020 R/SCR.A/1862/2020 ORDER be exercised by this Court releasing the motor vehicle seized by the police in the offence.

8. She further submitted 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. She relied upon the judgment of this Court reported in 2018 (1) GLR 558. Learned APP at last requested to dismiss present application.

9. On thus hearing 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.

10. This Court (Coram: J.B. Pardiwala, J.) however in the case Page 5 of 9 Downloaded on : Thu Jun 11 23:06:58 IST 2020 R/SCR.A/1862/2020 ORDER 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.

10.1 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:

"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.

R/SCR.A/1862/2020 ORDER

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."

10.2 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, 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 Page 7 of 9 Downloaded on : Thu Jun 11 23:06:58 IST 2020 R/SCR.A/1862/2020 ORDER 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.

11. Resultantly, this application is ALLOWED. The authority concerned is directed to RELEASE the vehicle of the petitioner, Vehicle i.e Black Coloured Skoda bearing RTO Registration No.GJ 05 RD 6668 on the terms and conditions that the petitioner:

(i) shall furnish, by way of security, bond of Rs.3,00,000/­ ( Rupees Three Lakhs only) and solvent surety of the equivalent amount;

R/SCR.A/1862/2020 ORDER

(ii) shall file an undertaking before the trial Court that prior to alienation or transfer in any mode or manner, prior permission of the concerned Court shall be taken till conclusion of the trial;

(iii) shall also file an undertaking to produce the vehicle as and when directed by the trial Court;

(iv) in the event of any subsequent offence, the vehicle shall stand CONFISCATED.

11.1 Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed panchnama in that regard, if not already drawn, shall also be drawn for the purpose of trial.

11.2 If, the IO finds it necessary, VIDEOGRAPHY of the vehicle also shall be done. Expenses towards the photographs and the videography shall be BORNE by the petitioner.

Rule is made absolute.

(B.N. KARIA, J) SINDHU NAIR Page 9 of 9 Downloaded on : Thu Jun 11 23:06:58 IST 2020