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2020 DIGILAW 603 (GUJ)

Ashishbhai Avcharbhai Bhagiya v. State of Gujarat

2020-07-07

ASHUTOSH J.SHASTRI

body2020
ORDER : 1. RULE. Learned APP Mr. J.K. Shah waives service of Rule for the respondent-State. 2. Present petition is filed under Article 226 read with Articles 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) This Hon’ble Court be pleased to admit and allow this petition. (B) That this Hon’ble Court be pleased to quash and set aside the order passed by Learned Judicial Magistrate Garbada in Criminal Case No. 467 of 2019 and be pleased to release the Maruti Suzuki Swift Car having RTO registration No. GJ-030059 which is in custody of Garbada Police station in connection of FIR being CR-III No. 130 of 2019. (C) That this Hon’ble Court be pleased to direct the investigating authority to handover the custody of the Maruti Suzuki Swift Car having RTO Registration No. GJ-030059 to the present petitioner pending trial. (D)...........” 3. The case of the present petitioner is that the petitioner is the owner of Maruti Suzuki Swift car having RTO registration No. GJ-03-KH-0059. On 8.9.2019, a complaint is lodged against two persons at Garbada Police Station, being Prohibition C.R. No. III-130 of 2019 under Sections 65E, 98(2) and 81 of the Gujarat Prohibition Act. In response to this criminal complaint, the vehicle belonging to the present petitioner, as stated above, is seized as a Muddamal during the course of investigation. According to the petitioner, in this complaint, charge-sheet has already been filed. As a result of this, with a view to see that the vehicle in question may not be dilapidated or the condition may not be deteriorated, as the trial is likely to take more time, the petitioner applied for interim custody of the said vehicle in question under Section 451 of the Cr.P.C. by way of an application before learned Magistrate, Garbada for release of the vehicle. But, by way of an order dated 6.11.2019, learned Magistrate has not considered the request. 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. 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 By referring to the aforesaid decisions, a request is made that the order passed by learned Magistrate 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 car 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 learned Magistrate 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. 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 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 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. 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 AIR 2003 SC 638 , which read as under: “15. Learned senior counsel Mr. 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 AIR 2003 SC 638 , 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. 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.” 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. 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 petition is disposed of on the following lines, which would meet the ends of justice:- (1) Impugned order dated 6.11.2019 passed by learned Magistrate, Garbada is hereby quashed and set aside and the authority concerned is directed to release the vehicle in question belonging to the petitioner, i.e. Maruti Suzuki Swift car having RTO registration No. GJ-03-KH-0059, 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. (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 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.