Nimavat Ramniklal Balakdas vs State Of Gujarat

1. The petitioner has preferred this petition under Article 227 of the Constitution of India to get the custody of muddamal vehicle being Maruti Suzuki Artiga ZDI having registration number GJ-06-FQ-8881 which is seized by police in connection with FIR being Prohi C.R.No. 491 of 2019 for offences punishable under sections 65(E), 81, 98(2) and 116B of the Gujarat Prohibition Act.

2. Facts giving rise to the present petition are not many and moved in a narrow compass. Maruti Suzuki Artiga ZDI bearing registration No. GJ-06-FQ-8881 came to be seized by 'C' Division Police Station, Jamnagar in connection with prohibition Prohi C.R.No. 491 of 2019 for offences punishable under section 65(E), 81, 98(2) and 116B of the Gujarat Prohibition Act. The petitioner being the owner of Page 1 of 4 Downloaded on : Sat Aug 29 02:31:04 IST 2020 R/SCR.A/3819/2020 ORDER muddamal vehicle moved an application under section 451 of the Code of Criminal Procedure 1973 ['the code for short] before the learned Additional Judicial Magistrate First Class, Jamnagar for interim custody of the vehicle during the pendency of the Trial of the case. The learned Magistrate, by his order dated 04.09.2019, rejected the application essentially on the ground of bar contained in section 98(1) of the Prohibition Act and the quantum of sentence prescribed for the offence. Being aggrieved and dissatisfied by the said order the petitioner preferred the present petition before this Court.

3. I have heard Mr. Pratik Jasani, learned advocate for the petitioner and Ms. C.M.Shah, learned APP for the respondent- State.

4. 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.

5. 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 : Sat Aug 29 02:31:04 IST 2020 R/SCR.A/3819/2020 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.

6. 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.

7. 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.

8. For the foregoing reasons, the petition succeeds and is hereby allowed and the order passed by the Court below are set aside. The custody of muddamal i.e. Maruti Suzuki Artiga ZDI bearing registration No.GJ-06-FQ-8881 , which is detained in connection with prohibition Prohi C.R.No. 491 of 2019 registered with 'C' Division Police Station, Jamnagar is ordered to be handed over to the petitioner on the following conditions:-

R/SCR.A/3819/2020 ORDER

(i) shall furnish, by way of security, bond of Rs. 5,00,000 (Rs. Five Lacs 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

(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.

9. 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/Jyoti Page 4 of 4 Downloaded on : Sat Aug 29 02:31:04 IST 2020