Gujarat High Court
Miteshbhai Mavjibhai Barasaniya vs State Of Gujarat on 5 March, 2021
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/SCR.A/4926/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4926 of 2020
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MITESHBHAI MAVJIBHAI BARASANIYA
Versus
STATE OF GUJARAT
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Appearance:
O I PATHAN(7684) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR DHARMESH DEVNANI, APP for the Respondent(s) No. 1
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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 of the 'Tata Motors Limited Bus Winger 2800 BS3' bearing registration No. MH-14-CW-3128.
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 of Maharashtra.
4. The case of the prosecution is that on 30.11.2018, while the police personnels were on patrolling, they received a secret information of the Page 1 of 7 Downloaded on : Thu Jan 13 06:39:19 IST 2022 R/SCR.A/4926/2020 ORDER vehicle in question carrying liqour and when police authorities intercepted the same near Vataman Cross Road to Bagodara Highway, on carrying out the search of the said vehicle, its driver was found carrying liquor without any pass or permit. Therefore, an FIR being III-C.R. No. 128 of 2018 came to be lodged with Koth Police Station, Ahmedabad Rural under Sections 65(e), 98(2) and 81 of the Gujarat Prohibition Act.
5. According to the petitioner, he is in no manner connected with the offence in question. It is, further, his say that he had made an application before the Court below for getting the said vehicle released, which came to be rejected by the learned 2nd Addl. Chief Judicial Magistrate, Dholka, vide order dated 01.07.2020, passed in Criminal Misc. Application No. 682 of 2019. Being aggrieved and dissatisfied with the said order, the petitioner had filed Criminal Revision Application No.53 of 2020 before the District and Sessions Court, Ahmedabad at Mirzapur, which also came to be rejected vide order dated 30.07.2020 passed by 2nd Additional District and Sessions Judge, Ahmedabad Rural, Ahmedabad and therefore, he is before this Court.
6. Today, learned Advocate appearing for the petitioner is heard at length.
7. 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 Page 2 of 7 Downloaded on : Thu Jan 13 06:39:19 IST 2022 R/SCR.A/4926/2020 ORDER 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 un-attended and becoming junk within the police station premises.
8. Learned Additional Public Prosecutor appearing for the respondent-State submits that prima facie case is made out on the basis of the FIR.
9. 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 Application No. 2185 of 2018, where, this Court, in exercise of the powers under Article 226 of the Page 3 of 7 Downloaded on : Thu Jan 13 06:39:19 IST 2022 R/SCR.A/4926/2020 ORDER 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'.
10. Thus, on 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.
10.1. 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.
10.2. 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:
"15. Learned senior counsel Mr. Dholakia, appearing for the State of Page 4 of 7 Downloaded on : Thu Jan 13 06:39:19 IST 2022 R/SCR.A/4926/2020 ORDER 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."
10.3. 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 Page 5 of 7 Downloaded on : Thu Jan 13 06:39:19 IST 2022 R/SCR.A/4926/2020 ORDER 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 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, being 'Tata Motors Limited Bus Winger 2800 BS3' bearing registration No. MH-14-
CW-3128, on the terms and conditions that the Page 6 of 7 Downloaded on : Thu Jan 13 06:39:19 IST 2022 R/SCR.A/4926/2020 ORDER petitioner: (i) The petitioner shall furnish a solvent surety of the amount equivalent to the value of the vehicle in question as per the value disclosed in the seizure memo or panchnama; (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.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) NEHA Page 7 of 7 Downloaded on : Thu Jan 13 06:39:19 IST 2022