R/SCR.A/1328/2024 ORDER DATED: 31/01/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 1328 of 2024
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VINODBHAI MADKABHAI RATHWA
Versus
STATE OF GUJARAT
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Appearance:
MR KIRITKUMAR L MEHTA(14358) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS VRUNDA SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 31/01/2024
ORAL ORDER
RULE. Learned APP waives notice of rule for and on behalf
of the respondents.
[1.0] The petitioner, who is the owner of the muddamal vehicle
has preferred this petition, seeking to invoke extraordinary
jurisdiction of this Court under Article 226 and supervisory
jurisdiction under Article 227 of the Constitution of India so also
inherent powers of this Court under Section 482 of the Code of
Criminal Procedure, 1973 with a prayer to release Muddamal
Vehicle i.e. Mahindra & Mahindra Bolero Pick Up Vehicle
bearing RTO registration No.GJ-20-V-4896.
[2.0] The case of the prosecution is that while the police
personnel were on patrolling, they received a secret information
of the vehicle in question carrying liquor and when police
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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 C.R. No.11207028240006
of 2024 registered with Halol Town Police Station, District
Panchmahal for the offences under the Gujarat Prohibition Act
and IPC.
[3.0] Heard learned advocate for the petitioner and learned APP
for the respondents.
[4.0] Learned Advocate for the petitioner has submitted that
present petitioner is the owner of the muddamal vehicle and this
Court has wide 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 reported in AIR
2003 SC 638, wherein, the Hon’ble Apex Court lamented the
scenario of number of vehicles having been kept unattended and
becoming junk within the police station premises.
[5.0] Learned APP for the respondents has objected the
submissions made by learned advocate for the petitioner and
urged that of course, powers of this Court under Article 226 of
the Constitution to order release of the vehicle can be exercised
at any time, whenever the Court deems it appropriate but this is
not a fit case to exercise the jurisdiction and hence, requested to
dismiss the petition.
[6.0] It would be worthwhile to refer profitably at this stage to
the observations made by the Hon’ble Apex Court in the case of
Sunderbhai Ambalal Desai (Supra), which read as under:
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"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."
[7.0] Resultantly, this petition is allowed.
[8.0] The learned Trial Court / authority concerned is directed to
release the vehicle of the petitioner being Mahindra & Mahindra
Bolero Pick Up Vehicle bearing RTO registration No.GJ-20-V-
4896 on the terms and conditions that the petitioner:
(i) shall furnish a solvent surety of the amount
equivalent to the price of the vehicle in question
stated in the FIR / panchnama.
(ii) shall file undertaking before the learned Trial Court
that he shall not transfer / change the identity, color
etc. of the vehicle till final disposal of the trial.
(iii) shall produce the vehicle as and when directed by
the learned Trial Court.
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(iv) in the event of any subsequent offence, the vehicle
shall stand confiscated.
[9.0] Before release of the vehicle, concerned police authority
shall take photographs / identity of the vehicle from all sides at
the cost of the petitioner and shall draw necessary panchanama
to that effect. Said panchanama and photographs shall be part of
charge sheet papers for the purpose of trial.
[10.0] Copy of this order be sent to concerned RTO, where
the vehicle is registered, for necessary entry in the Register and
to take notice that this Court has restrained transfer of vehicle
till final disposal of the trial. Such transfer shall be subject to any
order that may be passed by the learned Trial Court permitting
transfer of vehicle.
[11.0] Rule is made absolute accordingly. Direct service is
permitted.
(HASMUKH D. SUTHAR, J.)
Ajay
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