Bharatkumar Budhaji Prajapati vs State Of Gujarat

1. On the facts and in the circumstances of the case and with the consent of the learned advocates for the respective parties, the petition is taken up for final disposal.

2. This petition is filed under Articles 226 and 227 of the Constitution of India, wherein the petitioner has prayed for quashing and setting aside the order dated 15.1.2020 passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad in an application preferred under Section 451 of the Code of Criminal Procedure, 1973 as well as the judgment and order dated 28.2.2020 passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad City in Criminal Revision Application No.23 of 2020. Further direction has been sought for against the respondent No.2 to release/handover the interim custody of the muddamal, i.e. Hyundai Santro Car as well as Honda Activa Scooter bearing registration numbers GJ-27-C-0339 and GJ-01- UH-2925 respectively (hereinafter referred to as the 'vehicles in question') during the pendency of the trial.

R/SCR.A/2765/2020 ORDER

3. Brief facts, as emerging from the record, are as under:

3.1 The petitioner is the owner of the vehicles in question. A First Information Report bearing Prohibition C.R. No.5312 of 2019 came to be registered with Vadaj Police Station for the offences punishable under Sections 65(a)(e), 66(b), 98(2) and 116B of the Gujarat Prohibition Act, 1949 (hereinafter referred to as 'the Prohibition Act'). According to the petitioner, 12 bottles each of liquor were recovered from the vehicles in question and owing to such recovery, the vehicles in question of the ownership of the petitioner along with other articles, came to be seized by the investigating officer. It is also the case of the petitioner that the petitioner came to be arrested and was subsequently released on bail.

3.2 Apropos the aforesaid seizure of the vehicles in question by the investigating officer, the petitioner, being the owner, preferred an application before the learned Additional Chief Metropolitan Magistrate, Ahmedabad seeking release of the muddamal, including the vehicles in question under the provisions of Section 451 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').

3.3 The learned Additional Chief Metropolitan Magistrate, Ahmedabad passed an order dated 15.1.2020, partly allowing the application whereby, the cell phone of the petitioner came to be released whereas, the request for release of the vehicles in question, came to be turned down. Being aggrieved, the petitioner preferred an application before the Sessions Court, Ahmedabad City under the provisions of Section 397 of the Code. The learned Additional City Sessions Judge, Ahmedabad City, vide judgment and order dated 28.2.2020, rejected the application, inter alia, on the ground that in view of the bar contained in sub-section (2) of Section 98 of the Prohibition Page 2 of 8 Downloaded on : Mon Feb 22 23:33:18 IST 2021 R/SCR.A/2765/2020 ORDER Act, the court has no jurisdiction to release the seized muddamal since the quantity of the contraband liquor exceeded 10 litres. It has been observed that the petitioner himself being an accused and the vehicles in question being used for transporting the contraband liquor, the petitioner appears to be a habitual offender and on that ground also, if the muddamal, i.e. the vehicles in question are returned, it is likely that the petitioner will indulge himself in commission of such offences.

3.6 Being aggrieved and dissatisfied, the petitioner has preferred the captioned writ petition with the aforementioned prayers.

4. Mr. Kishan Prajapati, learned advocate for the petitioner, submitted that the courts below have failed to appreciate that there is recovery of 12 bottles of 750 milliliter from the car and the total quantity would be less than 10 litres. Similarly, 12 bottles of 750 milliliter were recovered from the scooter and that would also be less than 10 litres. Thus, the bar contained under sub-section (2) of Section 98 of the Prohibition Act was not attracted. The courts below ought to have exercised the powers and released the vehicles in question. It is also submitted that in the interest of justice, the vehicles in question may be released.

4.1 In support of his submissions, the learned advocate for the petitioner has placed reliance on the order passed by this Court in the case of Jitubhai Lakhubhai Khakhadiya vs. State of Gujarat & Anr. in Special Criminal Application No.7166 of 2019 wherein, this court has allowed the release of the muddamal, i.e. the vehicle involved therein and observed that in view of the quantity of the liquor being less than 10 litres, the court below ought to have granted interim custody of the vehicle to the registered owner.

4.2 The learned advocate, upon instructions, has undertaken before Page 3 of 8 Downloaded on : Mon Feb 22 23:33:18 IST 2021 R/SCR.A/2765/2020 ORDER this Court that the petitioner will not misuse the liberty granted by this court and produce the muddamal, i.e. the vehicles in question as and when required during the course of the trial. It is also stated that the muddamal, i.e. the vehicles in question shall not be transferred, alienated or part with. Under the circumstances, it is prayed that the muddamal, i.e. the vehicles in question be released by imposing suitable conditions.

5. On the other hand, Ms. Nisha Thakor, learned Additional Public Prosecutor for the respondent State has submitted that the petitioner having found at the place of offence, the muddamal, i.e. the vehicles in question may not be released at this stage. While referring to the case papers, it has been submitted that the petitioner is in habit of committing such offence. The learned Additional Sessions Judge, Ahmedabad City has not rejected the application on the ground of bar contained under sub-section (2) of Section 98 of the Gujarat Prohibition Act, but it has been categorically observed in the judgment that the petitioner was himself involved in transporting the contraband liquor and is in the habit of committing such offence. Thus, it is submitted that the learned Judge has not committed any error in rejecting the application of the petitioner for release of the vehicles in question.

6. Heard Mr. Kishan Prajapati, learned advocate for the petitioner and Ms. Nisha Thakor, learned Additional Public Prosecutor for the respondent State through video conferencing.

7. Undisputedly, the petitioner is the owner of the muddamal, i.e. the vehicles in question. Apropos the commission of the offence, the First Information Report has been lodged on 29.9.2019 with Vadaj Police Station for the offences punishable under the Prohibition Act. Since the seizure, the vehicles in question are lying idle with the police station in a place, open to sky.

R/SCR.A/2765/2020 ORDER

8. Pertinently, as contemplated under the provisions of Section 451 of the Code, when any property is produced before any criminal Court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

9. The Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2002) 10 SCC 283, has observed and held that to keep such seized vehicles at the police stations for a long period should be avoided and 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. Relevant paragraph 17 reads thus:

"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."

The Apex Court, while dealing with the aspect of seized vehicles, has observed that it is of no use to keep such seized vehicles at the police station for a long period.

10. In the subsequent judgment in the case of General Insurance Council and others vs. State of A.P., reported in 2010 AIR SCW 2967, the Apex Court has observed in paragraphs 14 and 15 as under:

"14. In our considered opinion, the aforesaid information is required to be utilised and followed scrupulously and has to be given positively as and when asked for by the Insurer. We also feel, it is necessary that in addition to the directions issued by this Court in Sunderbhai Page 5 of 8 Downloaded on : Mon Feb 22 23:33:18 IST 2021 R/SCR.A/2765/2020 ORDER Ambalal Desai (Supra) considering the mandate of Section 451 read with Section 457 of the Code, the following further directions with regard to seized vehicles are required to be given. "(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdicitonal Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary photographs may be taken duly authenticated and certified, and a detailed panchamama may be prepared before such release. (B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with. (C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer.

15. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only they occupy substantial space of the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct that all the State Governments/ Union Territories/Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that the activities of each and every police stations, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the concerned Division/Commissioner of Police of the concerned cities/Superintendent of Police of the concerned district."

11. The Apex Court has observed that it is a matter of common knowledge that as and when the vehicles are seized and kept in the various police stations, not only they occupy substantial space of the police station, but upon being kept in open are also prone to fast natural decay on account of weather conditions and even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than 15 days.

12. While adverting to the aspect of exercise of the powers by the learned Judicial Magistrate under sub-section (2) of Section 98 of the Page 6 of 8 Downloaded on : Mon Feb 22 23:33:18 IST 2021 R/SCR.A/2765/2020 ORDER Gujarat Prohibition Act, it is required to be noted that this Court in the case of Paresh Jaykarbhai Brahmbhatt vs. State of Gujarat, rendered in Special Criminal Application No.8521 of 2017 and other allied matters, has held that Section 98(2) of the Prohibition Act curtails the powers of the Magistrate to order interim release of the said vehicles under Section 451 or 457 of the Code as the case may be and the courts below will have no jurisdiction to order interim release pending the trial of the seized vehicle in connection with the offence under the Prohibition Act if the quantity of the liquor recovered exceeds 10 litres in quantity. The coordinate bench in the case of Anilkumar Ramlal Ramanlalji Mehta vs. State of Gujarat, rendered in Special Criminal Application No.2185 of 2018, while applying the principles laid down by the Apex Court in the case of Hema Mishra vs. State of Uttar Pradesh, reported in (2014) 4 SCC 453, exercised the writ powers under Article 226 of the Constitution of India and released the vehicle pending the trial.

13. As discussed hereinabove, apropos the lodging of the First Information Report, the vehicles in question were seized by the police personnel in connection with the offences registered with Vadaj Police Station under the Prohibition Act. Since the seizure, the vehicles in question are kept idle at the police station in the place open to sky, which is likely to reduce the vehicles in question to junk. Except the fact that in view of the embargo provided under sub-section (2) to Section 98 of the Prohibition Act, no concrete reasons are made available to this Court for not releasing the vehicles in question. Thus, applying the aforesaid principles of law to the facts of the present case as well as the declaration recorded of the petitioner through learned advocate in the preceding paragraph, this Court is inclined to exercise the powers under Article 226 of the Constitution of India and order the release of the muddamal, i.e. Hyundai Santro Car bearing Registration No.GJ-27-C-

R/SCR.A/2765/2020 ORDER 0339 as well as Honda Activa Scooter bearing Registration No.GJ-01- UH-2925 on the following conditions that the petitioner shall -

(i) furnish a solvent surety of the amount equivalent to the value of the vehicles in question as per the value disclosed in the seizure memo or panchnama;

(ii) file an undertaking on oath before the trial Court that the petitioner shall not transfer, alienate, part with the possession of the vehicles in question or create any charge over the vehicles in question, till the conclusion of the trial;

(iii) produce the vehicles in question as and when the authority or the court concerned directs him to do so.

14. It is clarified that in the event of commission of subsequent repetition of such offence by the petitioner, the vehicles in question shall stand confiscated.

15. With the aforesaid directions and observations, the petition is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(SANGEETA K. VISHEN,J) BINOY/MISHRA AMIT V.