Gujarat High Court
Ganibhai Yusufbhai Jamroth vs State Of Gujarat on 7 July, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
R/SCR.A/2776/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2776 of 2020
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GANIBHAI YUSUFBHAI JAMROTH
Versus
STATE OF GUJARAT
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Appearance:
MS GAYATRIBA B JADEJA(5152) for the Applicant(s) No. 1
MR JK SHAH, ADDL PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 07/07/2020
ORAL ORDER
1. RULE. Learned APP Mr. J.K. Shah waives service of Rule for the respondent- State.
2. Present petition is filed under Articles 226 and 227 read with Articles 14, 19 and 21 of the Constitution of India as also under Section 482 read with Section 451 of the Code of Criminal Procedure for seeking following reliefs:-
"(A) Your Lordships be pleased to release the muddamal vehicle (Mahindra & Mahindra Limited TUV 300 T8 Registration No.GJ-
03-HR-4406) to the petitioner, on appropriate conditions as may be deemed fit and proper by this Court, in the interest of justice;
(B) Your Lordships be pleased to grant the custody of the muddamal vehicle (Mahindra & Mahindra Limited TUV 300 T8 Registration No.GJ-03-HR-4406) to its owner, i.e. the petitioner, on bond or such terms and conditions as your Lordship deems fit and proper by this Hon'ble Court, pending the admission, hearing and final disposal of this petition, in the interest of justice.
(C) ...............
3. The case of the present petitioner is that the petitioner is the owner of Mahindra & Mahindra Limited TUV 300 T8 Registration Page 1 of 7 Downloaded on : Tue Jul 07 22:22:22 IST 2020 R/SCR.A/2776/2020 ORDER No.GJ-03-HR-4406. The said vehicle is alleged to have been used for commission of the offence and therefore the muddamal vehicle is in possession of the police in connection with the offence, being C.R. No.III-518 of 2019 lodged before Una Police Station, Gir Somnath for the offences punishable under Sections 65(E), 81, 83, 99, 98(2) of the Prohibition Act. Therefore, the petitioner initially preferred an application before learned Chief Judicial Magistrate for release of the vehicle. However, learned Additional Chief Judicial Magistrate, Una vide order dated 14.10.2019 rejected the said application of the petitioner. The petitioner therefore, preferred Criminal Revision Application No.40 of 2019 before learned 2 nd Additional Sessions Judge, Una under Section 397 of the Cr.P.C., which also came to be rejected vide order dated 6.11.2019. As a result of this, since the vehicle in question has remained in custody and several orders have been passed by the coordinate Benches of this Court about release of vehicles, the petitioner has invoked the extraordinary jurisdiction of this Court under 226 of the Constitution of India.
4. Pursuant to the request, time was granted to learned advocate to submit few decisions, as relied upon, on the issue of release of vehicles, especially when the vehicle has been detained in connection with the prohibition offences. Accordingly, learned advocate has cited the following decisions:-
(1) Order dated 12.6.2020 passed in Special Criminal Application No.7631 of 2019;
(2) Order dated 18.6.2020 passed in Special Criminal Application No.2033 of 2020;
(3) Order dated 30.6.2020 passed in Special Criminal Application No.1932 of 2020;Page 2 of 7 Downloaded on : Tue Jul 07 22:22:22 IST 2020
R/SCR.A/2776/2020 ORDER By referring to the aforesaid decisions, a request is made that the orders passed by Courts below be quashed and set aside and by exercising the extraordinary jurisdiction, Honourable Court may kindly pass order for release of the vehicle in question. It has further been submitted that if the vehicle in question is not released, not only the same would remain in unused position in the police station but the same would be deteriorated to such an extent that after the trial is over, the vehicle will not be in workable position at all. This issue has been dealt with in several orders by the coordinate Benches. Hence, a request is made to release the vehicle in question.
5. To the aforesaid submissions, learned APP Mr. J.K. Shah has submitted that by virtue of the statutory provisions, the detention of the vehicle is thoroughly justified and non-release of the same by the Courts below is also in accordance with law. Hence, no order be passed in favour of the petitioner. It has been submitted that by virtue of Section 92(2) of the Gujarat Prohibition Act, whenever such kind of vehicles are detained as muddamal in connection with the offences and quantity of liquor is found to be 10 Ltrs. and more, the vehicles are not to be released and that the order which has been passed by learned Magistrate is justified. However, on the issue of about exercise of extraordinary jurisdiction and several decisions which have been taken by the coordinate Benches, no comment is offered and learned APP has left the matter to the discretion of this Court.
6. Having heard learned advocates appearing for the parties and having gone through the material on record, it seems that prima facie, there is no dispute with regard to the ownership of the vehicle in question, which is undisputedly belonging to the petitioner. Additionally, the vehicle in question is also detained as a muddamal Page 3 of 7 Downloaded on : Tue Jul 07 22:22:22 IST 2020 R/SCR.A/2776/2020 ORDER in connection with the complaint which is lodged for the offences of under the Prohibition Act. However, the Court after perusal of several decisions delivered by various coordinate Benches of this Court, is of the opinion that by imposing appropriate conditions, the vehicle in question be released by exercising the extraordinary jurisdiction. For the purpose of arriving at this conclusion, the Court has taken assistance of the decisions of the coordinate Benches, to which there is no distinguishable view of this Court and since the said decisions have been considered by this Court, few relevant observations contained in one of the decisions, i.e. order dated 12.6.2019 in Special Criminal Application No.7631 of 2019, are reproduced hereinafter:-
"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 of in 'ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT' (Supra) in Special CriminalApplication 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 Page 4 of 7 Downloaded on : Tue Jul 07 22:22:22 IST 2020 R/SCR.A/2776/2020 ORDER 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 thisquestion 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 policestations 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 should be taken and a detailed panchnama should also be prepared. The Apex Court also held and specifically directed hat 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.
In view of the aforesaid observations and the position which has been propounded by various decisions, this Court is inclined to consider the request of the petitioner. As a result of this, present Page 5 of 7 Downloaded on : Tue Jul 07 22:22:22 IST 2020 R/SCR.A/2776/2020 ORDER petition is disposed of on the following lines, which would meet the ends of justice:-
(1) Impugned order dated 6.11.2019 as also the order dated 14.11.2019 passed by the Courts below are hereby quashed and set aside and the authority concerned is directed to release the vehicle in question belonging to the petitioner, i.e. Mahindra & Mahindra Limited TUV 300 T8 Registration No.GJ-03-HR-4406, on condition that petitioner shall furnish a solvent surety of Rs.5,00,000/-
and personal bond of the like amount and shall also file an undertaking before the Trial Court that the petitioner shall not transfer, alienate or use the vehicle in question in any manner which would violate the prohibition law till the trial is over and in case of exigency, alienation of transfer shall not be effected without specific prior permission of the concerned Court.
(2) The petitioner is also directed to file an undertaking to produce the vehicle in question as and when directed by the concerned Trial Court.
(3) It is made clear that in the event of any subsequent offence of this nature, the vehicle in question shall stand confiscated forthwith.
(4) Before handing over the possession of the vehicle in question, necessary photographs shall be taken and detailed panchnama in that regard shall be drawn and to be produced on the record of the case.
(5) If the I.O. finds it necessary, videography shall also be Page 6 of 7 Downloaded on : Tue Jul 07 22:22:22 IST 2020 R/SCR.A/2776/2020 ORDER done at the cost of the petitioner and photograph thereof also to be taken at the cost of the petitioner.
7. With the above-said conditions, the present petition stands allowed. Rule is made absolute to the aforesaid extent.
8. The Registry is directed to communicate this order by fax or e-mail to the concerned authority.
(ASHUTOSH J. SHASTRI, J) NEHA GUPTA Page 7 of 7 Downloaded on : Tue Jul 07 22:22:22 IST 2020