Desai Babubhai Nagjibhai vs State Of Gujarat

1. In this petition under Article 225 of the Constitution of India, the petitioner has made following substantive reliefs:

A. This Hon'ble Court may be plesaed to issue a writ, order or direction directing the Respondent to release / handover of the seized MARUTI SUZUKI LTD. EECO bearing registration no.GJ10CG2680, Chassis No.MA3ERLF1S00473620, Engine No.G12BN450080 seized by the investigation Authority in connection with complaint registered with FIR No.11216025200281 registered with Shatej Police Station, Dist. Gandhinagar for offences punishable under Sections 65(a), 65(e), 116(b) and 98(2) of the Gujarat Prohibition Act on 04.08.2020 to the petitioner on appropriate condition as deemed fit by this Hon'ble Court.

B. Pending the admission and final hearing of this petition, this Hon'ble Court may be pleased to issue direciton for release/handover of the seized MARUTI SUZUKI LTD. EECO bearing registration no.GJ10CG2680, Chassis No.MA3ERLF1S00473620, Engine No.G12BN450080 seized by the investigation Authority in connection with complaint registered with FIR No.11216025200281 registered with Shatej Police Station, Dist. Gandhinagar for offences punishable under Sections 65(a), 65(e), 116(b) and 98(2) of the Gujarat Prohibition Act on 04.08.2020 to the petitioner on appropriate Page 1 of 4 Downloaded on : Fri Aug 28 02:05:10 IST 2020 R/SCR.A/3785/2020 ORDER condition as deemed fit by this Hon'ble Court.

2. As per the averments made in this petition, the vehicle being EECO Car bearing registration No GJ-10CG2680 came to be seized by the Police in connection with FIR No 11216025200281 registered with Shatej Police Station, Dist. Gandhinagar for offences punishable under Sections 65(a), 65(e), 116(b) and 98(2) of the Gujarat Prohibition Act.

3. Rule returnable forthwith. Learned APP waives service of notice of rule on behalf of the respondent-State. With consent of the learned advocates for the parties, the matter has taken up for final disposal today.

4. Heard Mr. J.M. Nayak, learned advocate for the petitioner and Ms. C.M.Shah, learned APP for the respondent-State.

5. Mr. J.M. Nayak, learned advocate for the petitioner in view of the embargo contained in section 98(2) of the Gujarat Prohibition Act, the Trial Court has precluded from releasing the custody of muddamal vehicle under section 451 of the Code of Criminal Procedure to the owner of the vehicle. He further submits that his muddamal vehicle was used for transporting liquor without his knowledge. He submits that if the vehicle is allowed to remain with the police, its condition would deteriorate. Hence, considering the overall facts of the case and considering the value of liquor, the vehicle may be given to the petitioner pending the trial of criminal case.

6. Ms. Shah, learned APP has opposed this application. She submits that the provisions of section 98(2) of the Gujarat Prohibition Act contains an embargo against handing over custody of the vehicle involved in prohibition case. She has relied upon the decision of this Court in case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat decided on 15.12.2017 in support of her contention. It is her further Page 2 of 4 Downloaded on : Fri Aug 28 02:05:10 IST 2020 R/SCR.A/3785/2020 ORDER contention that the vehicle would be used for similar offence if the custody is given to the petitioner she therefore, urges that petition may be dismissed.

7. Having heard learned advocate for the parties and having considered the fact that value of liquor seized is small and if the muddamal vehicle is allowed to remain in the custody of the police, the same is likely to deteriorate and reduce to scarp.

8. Supreme Court in case of Sudarbhai Ambalal Desai vs. State of Gujarat has also considered the aspect of seized vehicles lying in the police station where they remained unattended and by each passing day have become a junk. I am of the opinion that the muddamal vehicle needs to be handed over to the petitioner pending the criminal trial on appropriate terms and conditions.

9. For the foregoing reasons, the petition succeeds and is hereby allowed. The custody of muddamal i.e. EECO Car bearing Registration No. GJ-10-CG-2680, which is detained in connection with C.R. No.11216025200281 registered with Shatej Police Station, Dist. Gandhinagar, is ordered to be handed over to the petitioner on the following conditions:-

(i) shall furnish, by way of security, bond of Rs. 2,50,000/- (Rs. Two Lakhs Fifty Thousand Only) and solvent surety of the equivalent amount;

(ii) The petitioner shall file an undertaking on oath before the learned trial Court that he shall not transfer, alienate or part with possession of the vehicle till conclusion of the trial and further, produce the vehicle as and when the Court directs him to do so.

(iii) the muddamal vehicle shall not be used for any illegal activities including transporting live stock Page 3 of 4 Downloaded on : Fri Aug 28 02:05:10 IST 2020 R/SCR.A/3785/2020 ORDER

(iv) The petitioner shall not change the colour and scheme of the vehicle.

(v) Before release of the vehicle, the police authority shall take photographs of the vehicle at the cost of the petitioner.

10. Rule is made absolute to the aforesaid extent. Registry to communicate this order to the concerned Court/authority through Fax/E-mail.

(A.G.URAIZEE, J) Pallavi/VYAS Page 4 of 4 Downloaded on : Fri Aug 28 02:05:10 IST 2020