Vipul M. Pancholi, J
1. Rule. Learned APP waives service of notice of rule for and on behalf of respondent-State.
2. The petitioner has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction
under Section 227 of the Constitution of India, seeking release of muddamal car bearing R.T.O. Registration No. GJ-01-RE-7306.
4. Learned advocate Mr.Champavat appearing for the petitioner submitted that the petitioner is the owner of the vehicle bearing registration No.GJ-
01-RE-7306, which is alleged to have been involved for the offence punishable under the Prohibition Act, for which, the FIR being C.R. No.III-313 of
2019 is registered.
4.1 It is submitted that for the FIR, there is a reference of five different vehicles. All the vehicles were seized by the Investigating Agency. It is
further submitted that the owner of the vehicle bearing Registration No.GJ-04-CJ-6613 preferred Special Criminal Application No.3041 of 2020 before
this Court for the purpose of getting interim custody of the said vehicle and this Court vide order dated 05.08.2020 allowed the said petition and
directed the concerned authority to release the said vehicle on certain terms and conditions. Copy of the said order is placed on record at Page-14 of
the compilation.
5. The case of the prosecution is that while the police personnels were on patrolling, they received a secret information of the vehicle in question
carrying liquor and when police authorities intercepted the same, on carrying out the search of the said vehicle, its driver was found carrying liquor
without any pass or permit. Therefore, an FIR being Prohibition / III C.R. No.313 of 2019 came to be lodged with Shamlaji Police Station, Aravalli for
the offence under the Gujarat Prohibition Act.
6. Learned Advocate for the petitioner has urged that this Court has wide powers, while exercising such powers under Article 226 of the Constitution.
It can also take into account the ratio laid down in the case of Sunderbhai Ambalal Desai VS. State Of Gujarat, AIR 2003 SC 63, 8wherein, the Apex
Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police station premises.
7. Learned APP for the respondent-State has strongly objected prayers made in the petition and urged that this petition be dismissed and the
muddamal vehicle may not be released.
8. Learned APP for the respondent-State has urged this Court that the appropriate conditions be imposed, while ordering the release of the vehicle.
He further pointed out that this Court (Coram: J.B. Pardiwala, J.) in the case of Anilkumar Ramlal @ Ramanlalji Mehta vs. State of Gujarat in Special
Criminal Application No. 2185 of 2018, Dated: 05.04.2018, and in the earlier decision in Pareshkumar Jaykarbhai Brahmbhatt Vs. State Of Gujarat in
Special Criminal Application No. 8521 of 2017 and the allied matters decided on 15.12.2017, has held that the powers of the Magistrate to order
interim release of the seized vehicle under Section 98(2) of the said Act has been curtailed, and therefore, the Courts below have been held to have no
jurisdiction to order interim release of the vehicle, pending trial, where, the vehicle is seized in connection with the offence under the Prohibition Act
and the quantity of the liquor seized exceeds 10 liters. He, further, urged that, of course, powers of this Court under Article 226 of the Constitution of
India to order release of the vehicle can be exercised at any time, whenever the Court deems it appropriate. He also pointed out that the recent
decision of this Court in Special Criminal Application No. 2185 of 2018, where, this Court, in exercise of the powers under Article 226 of the
Constitution, has ordered the release of the vehicle, pending trial. He has also pointed out the order passed by this Court in Special Criminal
Application No. 1126 of 2018, Dated: 21.06.2018, in case of Gujarat State Road Transport Corporation Through Depot Manager, Morbi Vs. State Of
Gujarat.
9. Having heard learned advocates appearing for the parties, without determining the other issues raised by the petitioner, in reference to Sections 98
and 99 and other provisions of the said Act and reserving that to be determined in future, in an appropriate proceedings being a contentious issue, this
Court choses not to enter into that arena in the present matter and instead exercise the powers under Articles 226 and 227 of the Constitution.
10. This Court (Coram: J.B. Pardiwala, J.) however in the case of in Anilkumar Ramlal @ Ramanlalji Mehta vs. State of Gujarat (Supra) has also
returned the vehicle recently under Articles 226 and 227 of the Constitution, exercising its powers to do that even at an initial stage.
11. It would be worthwhile to refer profitably at this stage to the observations made by the Apex Court in Sunderbhai Ambalal Desai VS. State Of
Gujarat (supra), which read 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. 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.
12. The Apex Court has, thus, directed that within a period of six months from the date of production of the vehicle before the Court concerned,
needful be done. It even went to the extent of directing that where the vehicle is not claimed by the accused, owner, or the insurance company or by
third person, then 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 a third person. If Insurance company fails
to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the
date of production of the said vehicle before the Court. It also directed that before handing over possession of such vehicles, appropriate photographs
of the said vehicle should be taken and a detailed panchnama should also be prepared. The Apex Court also held and specifically directed that
concerned Magistrate would take immediate action for seeing that powers under Section 451 of the Code are properly and promptly exercised and
articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. It, therefore, directed that this object
can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with
regard to such articles are implemented properly.
13. In view of above and since the co-ordinate Bench of this Court has released another vehicle in the FIR in question, this application is allowed. The
authority concerned is directed to release the vehicle of the petitioner, bearing R.T.O. Registration No. GJ-01-RE- 7306, on the terms and conditions
that the petitioner:
(i) shall furnish, by way of security, bond of Rs.5,00,000/- (Rupees Five Lakhs only) and solvent surety of the equivalent amount;
(ii) 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;
(iii) shall also file an undertaking to produce the vehicle as and when directed by the trial Court;
(iv) in the event of any subsequent offence, the vehicle shall stand confiscated;
(v) shall not use this vehicle in transporting liquor in future.
14. 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.
15. If, the Investigating Officer finds it necessary, Videography of the vehicle also shall be done. Expenses towards the photographs and the
videography shall be borne by the petitioner.
16. Rule is made absolute, accordingly. Registry shall forward a copy of this order to the concerned police station through e-mail or fax forthwith.
