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2020 DIGILAW 584 (GUJ)

Zapda Bhupendrabhai Ghelabhai v. State of Gujarat

2020-06-30

A.G.URAIZEE

body2020
ORDER : 1. RULE. Learned APP waives service of notice of rule on behalf of the respondent-State. 2. The petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 is preferred seeking substantive reliefs: “A. Your Lordships may be pleased to issue a writ, order or direction directing the respondent No.1 to release/handover seized Tavera Car bearing R.T.O. Registration No. GJ-03-ER-0644 which is seized by the investigating officer of Valsad Rural Police Station in connection with Prohibition (III) C.R. No. 484/2019 tot he petitioner on appropriate conditions as deemed fit by this Hon’ble Court; and further be pleased to quash and set aside the order dated 19.11.2019 passed by the Ld. 4th Addl. Chief Judicial Magistrate, Valsad as well as order dated 02.01.2020 passed by the Ld. Sessions Judge, Valsad passed in C.R.R.A. No. 144 of 2019. B. Pending the admission and final hearing of this application, Your Lordships may be pleased to issue direction for release/handover seized Tavera Car bearing R.T.O. registration No. GJ-03-ER-0644 to the petitioner on appropriate conditions as deemed fit by this Hon’ble High Court. C. Interim relief in terms of paragraph (B) above may be pleased.” 3. It is the case of the petitioner that he is the owner of the vehicle being Tavera Car bearing registration No. GJ-03-ER- 0644 and it is duly registered with the transport department of the Government. He had preferred an application for the release of the vehicle in question, which came to be disposed of by the learned 4th Additional Chief Judicial Magistrate, Valsad vide order dated 19.11.2019. 4. The case of the prosecution is that on 30.08.2019, while the police personnels were on patrolling, they received a secret information of the vehicle in question carrying liquor and when police authorities intercepted the same, on carrying out the search of the said vehicle, its driver was found carrying liquor. Therefore, FIR being C.R. No.III-484/2019 came to be lodged with Valsad Rural Police Station, District Valsad for the offence under the provisions of the Prohibition Act. 5. Heard Mr. M.G. Pandya, learned advocate for the petitioner and Ms. Jirga Jhaveri, learned APP for the respondent-State. 6. Mr. Therefore, FIR being C.R. No.III-484/2019 came to be lodged with Valsad Rural Police Station, District Valsad for the offence under the provisions of the Prohibition Act. 5. Heard Mr. M.G. Pandya, learned advocate for the petitioner and Ms. Jirga Jhaveri, learned APP for the respondent-State. 6. Mr. Pandya, learned advocate for the applicant submitted that in identical matter, Coordinate Bench of this Court has passed an order on 10.05.2019 in Special Criminal Application No.5213 of 2019 and on 12.06.2020 in Special Criminal Application No. 5208 of 2019 and thereby this Court directed the concerned authority to release the vehicle in question. The facts of the said petition are identical to that of the present petition. 7. Mr. Pandya, 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 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. This Court has also heard Ms. Jirga Jhaveri, learned Public Prosecutor and she has urged that appropriate conditions be imposed, while ordering release of the vehicle. She has further pointed out that 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. She, further, urged that, of course, powers of this Court under Article 226 of the Constitution of India to order release of the vehicle can be exercised at any time, whenever the Court deems it appropriate. She, further, urged that, of course, powers of this Court under Article 226 of the Constitution of India to order release of the vehicle can be exercised at any time, whenever the Court deems it appropriate. She also pointed out that 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 Constitution, has ordered release of the vehicle, pending trial. She has also pointed out 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’. 9. 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 chooses 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 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. 11. 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 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. 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.” 12. 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 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. 13. Resultantly, this application is ALLOWED. 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. 13. Resultantly, this application is ALLOWED. The orders dated 19.11.2019 and 02.01.2020 passed by the concerned courts below is hereby set aside. The authority concerned is directed to RELEASE the vehicle of the petitioner, being Tavera Car (having registration No. GJ-03-ER-0644) on the terms and conditions that the petitioner: (i) shall furnish, by way of security, bond of Rs. 3,00,000 (Three Lakhs Only) 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 and when directed by the trial Court; (iv) in the event of any subsequent offence, the vehicle shall stand CONFISCATED. 14. 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. 15. 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. In view of disposal of the main matter, Criminal Misc. Application does not survive and accordingly stands disposed of. Rule is made absolute accordingly. Registry is directed to communicate a copy of this order to the concerned Trial Court via e-mail/fax.