Rajubhai Bhikhabhai Thakor 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 Auto Rickshaw having registration number GJ-01-TB-5115 which is seized by police in connection with FIR being C.R.No. III 551 of 2019 registered with Aslali Police Station, Ahmedabad (Rural) for offences punishable under sections 65(E) and 98(2) of the Gujarat Prohibition Act.

2. Facts giving rise to the present petition are not many and moved in a narrow compass. Auto Rickshaw having registration number GJ-01- TB-5115 came to be seized by Aslali Police Station, Ahmedabad (Rural) for offences punishable under sections 65(E) and 98(2) of the Gujarat Prohibition Act. The petitioner being the owner of muddamal vehicle moved an application under section 451 of the Code of Criminal Procedure 1973 ['the code for short] before the learned Judicial Magistrate, First Class, Ahmedabad (Rural) Mirzapur, for interim custody of the vehicle during the pendency of the Trial of the case. The learned Magistrate, by his order dated 11.10.2019, rejected the Page 1 of 3 Downloaded on : Fri Aug 28 02:03:38 IST 2020 R/SCR.A/3724/2020 ORDER 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. The petitioner assailed the order of the learned Magistrate by preferring the Criminal Revision Application No. 173 of 2019 in the Sessions Court, Ahmedabad (Rural). Learned Principal District Sessions Judge, Ahmedabad (Rural) by his judgement dated 08.11.2019, confirmed the order passed by the learned Magistrate. The petitioner is therefore, before this Court with the present petition.

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

4. 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 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.

5. 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.

6. 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.

R/SCR.A/3724/2020 ORDER

7. 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. Auto Rickshaw having registration number GJ-01-TB- 5115, which is detained in connection with C.R.No. III 551 of 2019 registered with Aslali Police Station, Ahmedabad (Rural) is ordered to be handed over to the petitioner on the following conditions:-

(i) shall furnish, by way of security, bond of Rs. 50,000/- (Rs. 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

(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.

8. 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 3 of 3 Downloaded on : Fri Aug 28 02:03:38 IST 2020