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2020 DIGILAW 764 (GUJ)

Bipinbhai Jitubhai Patel v. State Of Gujarat

2020-09-11

ASHOKKUMAR C.JOSHI

body2020
JUDGMENT : 1. The petitioner has filed this petition seeking to invoke extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking to release the muddamal vehicle - Honda CBZ Xtreme, two wheeler bike bearing RTO registration No. GJ-21-AF-9753 in connection with the FIR being CR. No. III – 594 of 2019 registered before the Bilimora Police Station, Dist. Navsari for the offence punishable under Sections 65(A)(E) and 98(2) of the Gujarat Prohibition Act. 2. Heard learned advocate Mr. Jignesh Hajare for the petitioner and learned APP Mr. H. K. Patel on behalf of the Respondent State of Gujarat through video conference. Factual Matrix of the case: 3. It is the case of the petitioner that he is the owner of the muddamal bike in question. It is further the case of the petitioner that the learned Courts below have rejected the release of muddamal applications, only because of restriction under Section 98(2) of the Prohibition Act and if the muddamal vehicle would lie at the Police Station for more time, there will be physical damage to it and therefore, interference of this Hon’ble Court is required in the interest of justice. 3.1 It is contended that the muddamal bike in question was seized by the Bilimora police as the liquor was found in the bike and the offence, as aforesaid, came to be registered. 3.2 It is also contended that the petitioner has purchased the muddamal bike in question with aforesaid registration number. That, at present the said vehicle is lying at the Police Station in abandoned condition. It is also contended that learned Additional Chief Judicial Magistrate, Gandevi had rejected the muddamal application and thereafter, the learned Principal Sessions Judge, Navsari also confirmed the said order and therefore, the present petition is filed with a prayer to set aside the orders passed by the learned Courts below and also prayed for releasing the aforesaid muddamal vehicle. 3.3 Learned advocate Mr. Hajare for the petitioner time and again vehemently submitted that the coordinate bench passed the order in favour of the petitioner in identical cases. 3.3 Learned advocate Mr. Hajare for the petitioner time and again vehemently submitted that the coordinate 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 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 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 . 4. Per contra, learned APP Mr. H. K. Patel for the State has vehemently argued that in the present case earlier there were few offences registered upon the present petitioner and therefore, 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 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, wherein contrary view has been 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 exercised 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. 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 in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat (supra), 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. 5. 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 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. 5.1 With respect, this Court in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat (supra) 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. 6. 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 that 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 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 third person. If the Insurance company fails to take possession, the vehicle may be sold as per the direction of the Court. If the Insurance company fails to take possession, the vehicle may be sold as per the direction of the 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. 6.1 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 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. It is observed by the Hon’ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), 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.” 6.2 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 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. 7. Resultantly, in-fleri the petition succeeds and is allowed. The order passed by the learned Principal Sessions Judge, Navsari dated 31.12.2019 in Criminal Revision Application No. 66 of 2019, confirming the order dated 29.11.2019 passed by the learned Additional Chief Judicial Magistrate, Gandevi, is hereby set aside. 7. Resultantly, in-fleri the petition succeeds and is allowed. The order passed by the learned Principal Sessions Judge, Navsari dated 31.12.2019 in Criminal Revision Application No. 66 of 2019, confirming the order dated 29.11.2019 passed by the learned Additional Chief Judicial Magistrate, Gandevi, is hereby set aside. The authority concerned is directed to release the vehicle of petitioner being Honda CBZ Xtreme, two wheeler bike bearing RTO registration No. GJ-21-AF-9753 on the terms and conditions that the petitioner: a) Shall furnish, by way of security, bond as per valued cited in Panchnama or seizure memo and solvent surety of the equivalent amount; (b) 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, (c) Shall also file an undertaking to produce the vehicle as an when directed by the trial Court; (d) If the I.O. finds use of vehicle in any illegal activity by the present petitioner then this order shall stand cancel and the vehicle will be seized. 7.1 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. 7.2 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. 8. Rule is made absolute accordingly. The Registry is directed to communicate this order by fax/e-mail to the concerned Court and Police Station. Petiton allowed.