Kapil Satyaprakash Sharma vs State Of Gujarat on 25 September, 2018

[Cites 7, Cited by 3]

Gujarat High Court

Kapil Satyaprakash Sharma vs State Of Gujarat on 25 September, 2018

Bench: R.P.Dholaria

        R/SCR.A/8235/2018                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 8235 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE R.P.DHOLARIA

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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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                        KAPIL SATYAPRAKASH SHARMA
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR BHAVIK R SAMANI(8339) for the PETITIONER(s) No. 1
MR LB DABHI, APP for the RESPONDENT(s) No. 1
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    CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA

                               Date : 25/09/2018

                               ORAL JUDGMENT

1. Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent State.

2. By way of present writ petition filed under Article 226 of the Constitution of India, the petitioner has sought for Page 1 of 4 R/SCR.A/8235/2018 JUDGMENT a direction to respondent No.1 to hand over the Creta Car bearing Registration No.GJ01RP 0395 in view of clear embargo under Section 98(2) of the Gujarat Prohibition Act, 1949 ("the Act" for short) the subordinate courts are not granting any relief.

3. It is contended by learned advocate for the petitioner that by virtue of the provisions of section 98 of the Act, there is a clear embargo for handing over the custody of the vehicle used in the offence pending the trial by learned trial Courts. It is, therefore, requested that appropriate directions should be given to the concerned Magistrate/trial Court who is 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/guarantee/solvent surety for the return of the said vehicles if required by the Court at any point of time.

4. On the other-hand, learned Additional Public Prosecutor vehemently submitted that there is embargo under section 98 of the Code of Criminal Procedure 1973 to release the muddamal vehicle used in the offence and while interpreting the provisions of law, the coordinate bench of this Court in the case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat decided on 15.12.2017 held that in view of the embargo, the magisterial courts as well as revisional courts have no jurisdiction to hand over custody of the vehicle used in the offence as per the provisions of section 451 of the Code of Criminal Procedure 1973. Lastly, he requested this Court to dismiss the present petition in limine.

Page 2 of 4

R/SCR.A/8235/2018 JUDGMENT

5. Considering the facts and circumstances of the present case and the arguments advanced by learned advocate for the parties, it can be seen that the present matter is squarely covered by the decision rendered by this Court in Special Criminal Application No. 7642 of 2018 (Hardikbhai Mukeshbhai Chauhan vs. State of Gujarat) decided on 05.09.2018.

6. In the result, this application is allowed. The learned trial Court concerned is directed to immediately release the vehicle in question i.e. Creta Car bearing Registration No.GJ01RP 0395 in connection with the FIR being Prohibition CR No.5001 of 2018 registered with DCB Police Station, Ahmedabad after due verification and following the procedure of recording such evidence as it thinks necessary as provided under section 451 of the Code of Criminal Procedure 1973 and on the petitioner fulfilling the following conditions:

(1) 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.

(2) 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.

(3) The petitioner shall produce the vehicle as and when the authority or the Court concerned directs him to do so.

Page 3 of 4

R/SCR.A/8235/2018 JUDGMENT With the above, this petition is disposed of. Rule is made absolute.

Direct service is permitted.

(R.P.DHOLARIA, J) KUMAR ALOK Page 4 of 4

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