Gujarat High Court
Kamleshbhai Samarsinh Baria vs State Of Gujarat on 2 September, 2021
Author: A. C. Joshi
Bench: Ashokkumar C. Joshi
R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1843 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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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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KAMLESHBHAI SAMARSINH BARIA
Versus
STATE OF GUJARAT
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Appearance:
SHIVAM H CHOKSHI(9120) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS CM SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 02/09/2021
ORAL JUDGMENT
1. The petitioner has filed this application seeking to invoke extra ordinary jurisdiction to this Court under Articles 226 and 227 of the Constitution of India, mainly supervisory jurisdiction so also inherent powers under Section 482 of the Page 1 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 Code of Criminal Procedure to release the muddamal vehicle- Honda Shine Car bearing RTO registration No. GJ-20.S.5751 in connection with the FIR No. 11821014200286 of 2020 registered with Dhanpur Police Station, District - Dahod for the offence punishable under Sections 65(E), 81, 98(2) of the Gujarat Prohibition Act.
2. Heard learned advocate Mr. Shivam Chokshi for the petitioner and learned APP Ms. CM Shah on behalf of the Respondent State of Gujarat through video conference. Factual Matrix of the case:
3. It is the case of the petitioner is the owner of Honda Shine Car bearing RTO registration No. GJ-20.S.5751. It is the case of the petitioner that the learned Court below has rejected release of muddamal application, only because of restriction under Section 98(2) of the Prohibition Act but vehicle lying at the Police Station for more time, otherwise there will be physical damage to it, therefore interference of this Hon'ble Court is required and therefore, this Court may please to allow this application in the interest of justice.
4. It is contended that as per the allegations in the FIR, above 10 liters of liquor was found in the vehicle of the petitioner. It is also contended that during raid the Investigating Officer had seized one Honda Shine Car bearing RTO registration No. GJ-20.S.5751 and accordingly an FIR came to be Page 2 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 registered.
5. It is also contended that petitioner has purchased Honda Shine Car bearing RTO registration No. GJ-20.S.5751 which is the earning means of the petitioner and present the said vehicle is lying in Police Station in abandon condition. It is also contended that after the amendment in the Prohibition Act as per the provisions contained in section 98(2) of the said Amended Act, the learned Magistrate and the learned Sessions Judge does not have jurisdiction to release the muddamal vehicle by exercising power under section 451 of the Cr.PC in case of muddamal vehivle which is alleged to be used in the prohibition offences in which the quantity of liquor is more than 10 liters. Under such circumstances, the present petitioner is not having any other alternative remedy, except filing of this petition before this Court. Therefore, the present petition is filed and prayed for releasing captioned muddamal vehicle.
6. Earlier also this Court has issued Rule on 04.03.2021, returnable on 16.03.2021. Learned advocate for the petitioner time and again vehemently submitted that the co - ordinate Bench passed the order in favour of the petitioner in identical cases. Further learned advocate for the petitioner has placed reliance upon the judgments of co-ordinate Bench (1) in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No. 5533 of 2018 Page 3 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated 26.06.2020, (5) in case of Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in Special Criminal Application No. 2692 of 2020 order dated 14.07.2020 and also placed reliance upon the judgment delivered by the Hon'ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003 SC 638.
7. Per contra, learned APP for the Respondent - State has vehemently argued that if the said muddamal vehicle is released, in that case there are all chances of committing the same offence in future under the Prohibition Act. Therefore, learned Trial Court has rightly disallowed the muddamal application. Further, learned APP has also placed reliance upon the judgment passed by this Court (Coram: J. B. Pardiwala, J) in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018 dated 05.04.2018. Order dated 12.06.2020 passed in Special Criminal Application No. 7631 of 2019, Page 4 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 wherein contrary view has taken in releasing muddamal vehicle involved in the Gujarat Prohibition Act. Learned APP further contended that SLP (Cri.) No. 886 of 2018 is pending before the Hon'ble Apex Court in respect of the said issue, and therefore, no power would be exercise by this Court for releasing the vehicle seized by Police in the prohibition Offence. It is also contended that learned trial Court has rightly disallowed the muddamal application by invoking Section 98(2) of the Prohibition Act and Court below has no jurisdiction to pass order for interim release of muddamal vehicle when trial is pending in connection with offence under the Prohibition Act. Learned APP further urged that in view of Section 98(2) of the latest Prohibition Act, as well as, as per judgment passed by this Court (Coram: J. B. Pardiwala, J) in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat, the vehicle used in Probhition, where quantity is more than 10 liters, cannot be released. Further, learned APP also placed reliance upon judgment of Co ordinate Bench dated 15.12.2017 in Special Criminal Application No. 8521 of 2017.
8. Having heard the arguments advanced by both the sides, while determining the other issues raised by the learned APP in reference to Sections 98 and 99 and other provisions of the said Act, and referring that to be determined in future in Page 5 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 appropriate proceedings being contentious issue, this Court is not inclined to enter into that arena in the present matter and instead exercised the powers vested under Articles 226 and 227 of the Constitution.
9. With respect, this Court (Coram: J. B. Pardiwala, J) in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018 dated 05.04.2018 has also returned the captioned involved vehicle in the Prohibition Act under Articles 226 and 227 of the Constitution by exercising its powers to do that even at initial stage.
10. Having heard the arguments advanced by both the sides, it would be worthwhile to refer profitably at this stage to the observations made by the Hon'ble Apex Court within a period of six months before concerned Court to needful be done. Further, the Hon'ble Apex Court also to the extent of directing that where the vehicle is not claimed by the accused, owner or the Insurance Company or by third person which such vehicle may be ordered to be auction 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 third person. If the Insurance company fails to take possession, the vehicle may be sold as per the direction of the Page 6 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 Court. The Court would pass such orders, then within a period of six months from the date of production of such vehicle before the Court. It is also directed that before handing over such possession of vehicle, appropriate photographs of the said vehicle should be taken and detailed panchnama should also be prepared. The Hon'ble Apex Court also held that to specifically direct the concerned Magistrate would take immediate action for seeing powers under Section 451 of the Code and properly exercise and articles are not kept for long time at the Police Station, in any case, for not more than 15 days to one months. It is therefore, directed this object can also be achieved however, there should be proper supervision by the Registry of the concerned High Court in seeing that Rules framed by the High Court with regard to such articles are implemented properly. This Court has perused the report of Investigating Officer as submitted by learned APP which is taken on record.
11. Further, learned APP has heavily placed reliance upon the earlier few offences registered upon the petitioner for that this Court has taken note of the same but with respect it is nobody's case that same vehicle is used in all earlier offences and therefore, merely antecedents of few offences upon the petitioner cannot deny the interim possession of vehicle to the petitioner and on the basis of the judgment of Page 7 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 Hon'ble Supreme Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), this Court is inclined to exercise extraordinary powers under Articles 226 and 227 of the Constitution.
12. It observed by the Hon'ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), which reads 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.
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."
13. This Court has assistance of orders passed by the co ordinate Bench in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No. 5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Page 8 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 Special Criminal Application No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated 26.06.2020, wherein, muddamal vehicle was used in offences under the Prohibition Act released by this Court at many occasions.
14. Resultantly, in-fleri this application is allowed, the authority concerned is directed to release the vehicle of petitioner Car - Honda Shine Car bearing RTO registration No. GJ-20.S.5751 in the terms and conditions that the petitioner:
(i) Shall furnish, by way of security, bond as per valued cited in Panchnama or seizure memo and solvent surety of the equivalent amount;
(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 an when directed by the trial Court;
(iv) If the I.O. finds use of vehicle in such illegal Page 9 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021 R/SCR.A/1843/2021 JUDGMENT DATED: 02/09/2021 activity by the present petitioner then this order shall stand cancel and the vehicle will be seized.
15. 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.
16. If, the I.O. finds it necessary, VIDEOGRAPHY of the vehicle also shall be done. Expenses towards the photographs and the videography shall be BORNE by the petitioner.
17. This petition is allowed. Rule is made absolute. The Registry is directed to communicate this order by Fax / by E- mail to the concerned Court and Police Station.
(A. C. JOSHI,J) Radhika Page 10 of 10 Downloaded on : Sun Sep 05 20:13:49 IST 2021