Gujarat High Court
Boghabhai Balabhai Kodiyatar vs State Of Gujarat on 2 January, 2024
NEUTRAL CITATION
R/SCR.A/15951/2023 ORDER DATED: 02/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 15951 of 2023
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BOGHABHAI BALABHAI KODIYATAR
Versus
STATE OF GUJARAT
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Appearance:
MR IMTIYAZ I MANSURI(9159) for the Applicant(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 02/01/2024
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent No.1 - State of Gujarat. With the consent of learned advocates appearing for the respective parties, present petition is taken up for final hearing today.
[2.0] By way of present petition under Articles 14, 19(1)(g), 21 and 226 of the Constitution of India read with Sections 451 and 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed for the following reliefs:
"(A) YOUR LORDSHIPS, be pleased to call for the record and proceedings of the offence registered on 25/10/2023 as Prohibition C.R. No.11185001230955 of 2023 with Bhanvad Police Station, District Devbhumi Dwarka, for the offences punishable u/s.64, 70A, 81 and 98(2) of the Page 1 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024 NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined Gujarat Prohibition Act and after perusing the same, be pleased to issue appropriate writ, order or direction and further be pleased to release the muddamal 205 can (Tin) Rotten Jaggery (gourd), in favour of the petitioner in the interest of justice;
(B) YOUR LORDSHIPS, be pleased to order that pending admission and/or final disposal of this petition the muddamal 205 can (Tin) Rotten Jaggery (gourd) be released in favour of the petitioner upon such terms and conditions as are deemed fit proper in the interest of justice;"
[2.0] The brief facts necessary for the purpose of deciding the present petition are as follows:
[2.1] The petitioner purchased 210 can (Tin) of Rotten Jaggery (hereinafter referred to as "rotten Gur") vide invoice No.815 dated 05.08.2023 from one Vikeshbhai Bharatbhai Davda. The police personnel received intelligence on 07.08.2023 that the present petitioner without holding any pass and permit has stored rotten gur in his house and therefore, the premises of the petitioner was raided and 205 Tins of rotten gur were seized vide Janva Jog Entry No.24 of 2023 and subsequently, on 25.10.2023, FIR being Prohibition CR No.11185001230955 of 2023 came to be lodged with Bhanvad Police Station, District Devbhumi Dwarka for the offences under Sections 64, 70A, 81 and 98(2) of the Gujarat Prohibition Act Pursuant to the registration of FIR, the petitioner was arrested and thereafter released on bail.Page 2 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024
NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined [2.2] The petitioner, for the release of his goods, preferred application before the learned trial Court which came to be rejected. Being aggrieved and dissatisfied, the petitioner preferred Criminal Revision Application No.10 of 2023 which also came to be rejected on 06.09.2023 by the learned Sessions Judge, Devbhumi Dwarka.
Hence, present petition is filed.
[3.0] Learned advocate for the petitioner has submitted that the petitioner is innocent and is engaged in agricultural activity and he used to transport Jaggery for the purpose of cattle feed which was purchased from one Bharat Traders through invoice. Further, the petitioner has never engaged in any illegal activity. Even, the muddamal was not rotten gur and he has submitted that petitioner is ready and willing to abide by any condition that may be imposed by this Court while releasing the muddamal. Learned advocate for the petitioner has mainly contended that the muddamal goods is not a rotten gur but is jaggery used for cattle feed. Further, he has stated that he has purchased the said goods by way of invoice from one Bharat Traders having GST Number and the petitioner is not engaged in illegal activities in any manner and no purpose would be served by confiscating the muddamal goods. The petitioner has relied on the decision of Hon'ble Apex Court in the case of Rajendra Prasad vs. State of Bihar reported in 2002 SCC (Cri.) 1034 and Sunderbhai Ambalal Desai vs. State of Gujarat reported in 2003(2) GLR 1337 and submitted that if is of no use to keep the seized muddamal at the police station for a long period. Hence, he has requested to allow the present petition.Page 3 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024
NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined [4.0] Learned APP has vehemently opposed the present petition and submitted that the present petitioner is found in the possession of rotten gur which is prohibited under the Gujarat Prohibition Act. Further, on the basis of the intelligence received, raid was conducted, sample was taken in presence of panch witnesses and then it came to be forwarded to the FSL and during examination it was found that the said muddamal is rotten gur which is prohibited muddamal and hence, required to be confiscated. Hence, both the Courts below have not committed any error and has requested to dismiss the present petition.
[5.0] Heard learned advocates appearing for the respective parties.
[6.0] Going through the record, it appears that on receipt of intelligence by the complainant, ASI Mashribhai Bhikhabhai Bharvadiya, Head Constable Bharatbhai Maldebhai Jamod and other police constable conducted the raid at the home of the present petitioner, who without any pass or permit used to sell the "rotten gur" and on raid being conducted, 205 Tins each carrying 15 kg of "rotten gur" were seized by the raiding party in presence of panch witnesses and when the petitioner was asked about the possession of muddamal goods, he failed to give any satisfactory reply and hence, in presence of panch witnesses, sample of muddamal goods were taken and muddamal worth Rs.1,23,000/- came to be seized under Section 102 of the CrPC and Janva Jog Entry No.24/2023 came to be made.
[6.1] During the investigation it was found that one Vikesh Bharat Davda, owner of Navya Trading has purchased the said Page 4 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024 NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined goods and it was used to supply to the people who were engaged in illegal activity of making country made liquor i.e. distillaries. During the investigation it was also found that without any bill, the said muddamal goods came to be sold to the present petitioner and said person viz. Vikeshbhai Davda does not have any pass, permit or license. The sample of muddamal goods was sent to FSL and on the very next day i.e. on 16.10.2023, it was found that the said goods is rotten gur and hence, FIR being CR No.11185001230955 of 2023 registered against the petitioner with Bhanvad Police Station, District Devbhumi Dwarka for the offences under Sections 64, 70A, 81, 98(2) of the Gujarat Prohibition Act.
[6.2] From the report submitted by ASI Mr. Jamod, LCB, Devbhumi Dwarka, it appears that the goods seized from the house of the present petitioner is rotten gur. Further, during the investigation it was found that no such goods came to be sold by Bharat Traders to the present petitioner and even, Bharat Traders is not having the license to store, sell or transport the said goods. The said goods is found in huge quantity which is in contravention of Gujarat Rotten Gor and Ammonium Chloride (Manufacture & Possession) Rules, 1977.
[6.3] Nonetheless, going through the report of FSL, it appears that the seized goods is rotten gur having foul odour and not upto mark or having any standard as prescribed under Section 2(39A) of the Gujarat Prohibition Act. Section 2(39A) reads as under:
"2(39A) "rotten gur" means the article known as gur, gul, Page 5 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024 NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined jaggery, Palmyra jaggery or rab and other intermediary product prepared by boiling or processing juice pressed out of sugar cane or extracted from Palmyra palm, date palm sago plam, barb palm or coconut Palm with or without admixture of molasses and which is in a liquid form or a semi-liquid or viscous form and which has a dark brown or a black colour or which in spite of being in a solid liquid semi-liquid or viscous form is unfit for human consumption owing to its becoming filthy, putrid, disgusting or decomposed [and shall include on chemical analysis, if it contains -
(i) total sugar (expressed as invert sugar) less than 90 per cent and sucrose less than 60 per cent, or
(ii) extraneous matter insoluble in water more than 2 per cent, or
(iii) total ash more than 6 per cent, or
(iv) ash insoluble in by hydrochloric acid (HCL), more than 0.5 per cent, or
(v) more than 10 per cent of moisture, or
(vi) sulphur dioxide in concentration exceeding 70 parts per cillion;]"
Herein, the FSL report shows that glucose in muddamal goods is 65.82%, sucrose is 49.95% and moisture is 13.5%, which is less than the prescribed limit of respective 80%, 60% and 10% of standards. Thus, prima facie, it appears that, the said good is semi-liquid molasses / rotten gur having dark brown colour which is in viscous form and unfit for human consumption owing to its becoming filthy, putrid, disgusting and decomposed. Considering the aforesaid fact, during the FSL testing it was found that the muddamal goods is not fit for human consumption and hence, question of releasing the muddamal goods for human Page 6 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024 NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined consumption or any normal purpose or even cattle feed also does not arise as the said muddamal goods is not consumable and is filthy goods.
[7.0] Considering the peculiar facts of the present case, as the muddamal goods itself is of deteriorated in quality and non- consumable, same is required to be confiscated as per the provisions of Section 29 of the Gujarat Prohibition Act as transportation of said goods is not permissible without any authorization and that too in huge quantity without any pass, permit or license. Even, to store such "rotten gur" or molasses is an offence under Chapter VI-A of the Gujarat Prohibition Act, 1949 which controls and regulates possession of "Rotten Gur"
and Ammonium Chloride under Section 64 of the Gujarat Prohibition Act against whereby rotten gur in excess of the prescribed limit is prohibited. Herein, huge quantity of "rotten gur" is found from the house of the petitioner who is having no any license to sell, transport or store the same and it is undisputed fact.
[7.1] Even, section 70A of the Gujarat Prohibition Act provides penalty for illegal possession etc. of "rotten gur" or ammonium chloride and considering the aforesaid fact, under Section 98(2) of the Gujarat Prohibition Act, said muddamal is liable to be confiscated. Hence, considering aforesaid fact, neither the learned trial Court nor the learned Revisional Court has committed any error in refusing to release the muddamal goods as, as per the report of the FSL, while the report was awaited, an application under Section 451 of the CrPC came to be filed before the learned trial Court which came to be dismissed Page 7 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024 NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined however, subsequently, the FSL report was received and it is confirmed that the said muddamal goods i.e. "rotten gur" is non- consumable for the human being.
[7.2] One more aspect is also required to be take into consideration. Presumption as to commission of offences in certain cases is to be made under Section-103 of the Gujarat Prohibition Act, which reads as under:
"103. Presumption as to commission of offences in certain cases.- (1) In prosecutions under any of the provisions of this Act, it shall be presumed without further evidence until the contrary is proved, that the accused person has committed an offence under this Act in respect of any intoxicant, hemp, mhowra flowers or molasses or any still, utensil, implement or apparatus, whatsoever for the manufacture of any intoxicant[***][or any materials which have undergone any process towards the manufacture of any intoxicant or from which an intoxicant has been manufactured], for the possession of which he is unable to account satisfactorily.
[***[(2) Where in any trial of an offence of manufacturing liquor or any intoxicating drug and using a still for such purpose in contravention of the provisions of this Act, it is proved that the accused person was present by the side of the still while it was working or that he was the owner or occupier having the care, management of control of the place wherein such still was used, then the burden of proving that the accused person had not used, or had not abetted in using the still for manufacturing liquor or an intoxicating drug shall be on the accused person and the Court shall, in the absence of such proof, assume to the contrary.]]"
Hence, as muddamal "rotten gur" is found from the conscious possession of the petitioner without any pass, permit Page 8 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024 NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined or license and as even, the supplier has also denied that he has sold the muddamal goods to the petitioner and that too in such a huge quantity and he does not have any license to store, transport or sell such "rotten gur", the muddamal goods cannot be released and is required to be confiscated.
[7.3] Further, prima facie it appears that the petitioner was found in unlawful possession of the muddamal goods and under Section 98 of the Gujarat Prohibition Act, such goods are liable to be confiscated. Section 98 of the Gujarat Prohibition Act reads as under:
"98. Things liable to confiscation. - (1) Whenever any offence punishable under this Act has been committed,
(a) any intoxicant, hemp, mhowra flowers, molasses, materials, still, utensil, implement or apparatus in respect of which the offence has been committed,
(b) where, in the case of an offence involving illegal possession, the offender has in his lawful possession any intoxicant, hemp, mhowra flowers or molasses other than those in respect of which an offence under this Act has been committed, the entire stock of such intoxicant, hemp, mhowra flowers or molasses,
(c) where, in the case of an offence of illegal import, export or transport, the offender has attempted to import, export or transport any intoxicant, hemp, mhowra flowers or molasses, in contravention of the provisions of this Act, rule, regulation or order or in breach of a condition of licence, permit, pass or authorisation, the whole quantity of such intoxicant, hemp, mhowra flowers or molasses which he has attempted to import, export, or transport,
(d) where in the case of an offence of illegal sale, the offender has in his lawful possession any intoxicant, hemp, mhowra flowers or molasses other than that in respect of Page 9 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024 NEUTRAL CITATION R/SCR.A/15951/2023 ORDER DATED: 02/01/2024 undefined which an offence has been committed, the whole of such other intoxicant, hemp, mhowra flowers or molasses, shall be confiscated by the order of the Court.
(2) Any receptacle, package or covering in which any of the articles liable to confiscation under sub-section (1) is found and the other contents of such receptacle, package or covering and the animals, carts, vessels or other conveyances used in carrying any such article shall likewise be liable to confiscation by the order of the Court, [but it shall not be released on bond or surety till the final judgment of the Court where the quantity of the seized liquor is exceeding the quantity as may be prescribed by the rules.]"
[8.0] Considering the aforesaid settled position of law, the authorities relied on by learned advocate for the petitioner on the cases of Rajendra Prasad (Supra) and Sunderbhai Ambalal Desai (Supra) would not be of any assistance to the petitioner. The petitioner's claim with regard to release of muddamal goods is to be considered during the trial of the case and then the Court has to pass an appropriate order of confiscation. In view of aforesaid discussion, this Court is of the opinion that both the Courts below have not committed any error in refusing to release the muddamal goods i.e. "rotten gur" and hence, present petition being devoid of merits is dismissed. Rule is hereby discharged.
(HASMUKH D. SUTHAR, J.) Ajay Page 10 of 10 Downloaded on : Thu Jan 04 20:38:46 IST 2024