On 15th December 2020, a Single Judge Bench consisting of Hon’ble Mr. Justice Ashok Kumar C. Joshi heard the case of Harshadbhai Narshinhbhai Patel v. State of Gujarat via video conferencing.
The petition was filed by the petitioner seeking to invoke the extraordinary jurisdiction under A.226 and A.227 of the Indian Constitution to release the muddamal vehicle- Maruti Swift Dizire registered with Kothamba Police Station, Mahisagar for the offence punishable under Sections 65(E), 81(Penalty for attempts or abetment) and 98(2) (Things liable to confiscation) of the Gujarat Prohibition Act.
Facts of the case
In this case, the petitioner was the owner of the vehicle Maruti Swift Dizire. The petitioner conducted business and other activities in a lawful manner and the vehicle was seized in a prohibition case registered under the Kothamba Police Station.
By virtue of Section 98 of the Gujarat Prohibition Act, there was a clear embargo for handing over the custody of the vehicle. As per the FIR, liquor worth Rs. 90,000 was found in the vehicle, due to which it was seized.
The seized vehicle was lying in the police station in an abandoned condition. Further, if the vehicle would be lying for a longer time at the police station, then there would be physical damage to it. The petition was thus filed for releasing the muddamal vehicle from the police custody. Therefore, Court’s interference was necessary and the application was allowed in the interest of justice.
Contentions of the Petitioner
Learned counsel for the petitioner placed reliance on several cases and contended that the Court in similar cases had provided relief in favour of the petitioner: Ritesh Bishmber Agrawal vs. State of Gujarat, 2019; Ganibhai Yusufbhai Jamroth vs. State of Gujarat, 2020; Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat, 2020; Zala Mahendrasinh Kirtisinh vs. State of Gujarat, 2020; Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat, 2020.
Contentions of the Respondent
Learned advocate for the Respondent contended that if the vehicle seized was released then there would be all chances that the offense would be committed once again in the future. The Counsel further contended that the vehicle was used for transporting illegal liquor.
The Counsel referred to the case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat, 2018 and contended that the Court in this case had rightfully disallowed the Muddamal Application by invoking Section 98(2) of the Prohibition Act. Further, he contended that, where more than 10 litre of liquor is seized, the vehicle cannot be released.
The Court referred to the case of Anilkumar Ramlal @ Ramanlaji Mehta v. State of Gujarat 2018, where the vehicle seized under the Prohibition Act was returned by exercising the powers under A.226 and A.227 at the initial stage.
The Court opined that when a vehicle is not claimed by its owner, the accused, insurance company, or a third party, then the Court can order the vehicle to be kept for auction. If a vehicle is insured, then the Insurance company should be informed in order to take possession of the vehicle if it is not claimed by other parties. But if the Insurance company does not take possession of the vehicle, then the Court can order it to be sold.
The Court referred to the case of Sunderbhai Ambalal Desai v. State of Gujarat, which held that:
“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.”
The Court directed the Magistrate to exercise and take immediate action to see the powers under Sec 451 (Order for custody and disposal of property pending trial in certain cases) of CrPC, and held that articles seized and kept under police custody should not exceed 15 days to one month.
The Court allowed the petition by furnishing terms and conditions directed towards the petitioner on the release of the vehicle:
- A bond should be furnished as valued under the Panchnama/seizure memo, and solvent surety of the equivalent amount.
- An undertaking should be filed prior to the transfer of the vehicle, that prior permission of the Court shall be taken.
- Should produce the vehicle as and when directed by the Court.
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