Gujarat High CourtHajimohmad Sultanali Firasta vs State Of Gujarat on 2 May, 2022Author:Ilesh J. VoraBench:Ilesh J. VoraR/SCR.A/4559/2022                              ORDER DATED: 02/05/2022\n\n\n\n\n            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n           R/SPECIAL CRIMINAL APPLICATION NO. 4559 of 2022\n\n==========================================================\n                         HAJIMOHMAD SULTANALI FIRASTA\n                                     Versus\n                               STATE OF GUJARAT\n==========================================================\nAppearance:\nMR. PRERAK R BHATT(11381) for the Applicant(s) No. 1\nMS AARTI S TIWARI(10667) for the Applicant(s) No. 1\nfor the Respondent(s) No. 2\nMRS KRINA CALLA APP for the Respondent(s) No. 1\n==========================================================\n\n CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA\n\n                                Date : 02/05/2022\n\n                                 ORAL ORDERRule returnable forthwith. Learned APP waives\nservice of notice of rule for and on behalf of respondent-\nState.1.     The petitioner has preferred this petition, seeking to\ninvoke extraordinary jurisdiction of this Court underArticle 226and supervisory jurisdiction underArticle 227of the Constitution of India so also inherent powers of this\nCourt underSection 482of the Code of Criminal\nProcedure, 1973 with a prayer to release Muddamal\nVehicle i.e. Tata Tempo bearing RTO registration No.\nGJ-15-AT-6566.2.     It is the case of the petitioner that petitioner is the\nowner of the aforesaid vehicle and it is duly registered\nwith the transport department of the Government. He is,Page 1 of 6Downloaded on : Mon May 02 21:16:28 IST 2022R/SCR.A/4559/2022                                ORDER DATED: 02/05/2022\n\n\n\ntherefore, before this Court.3.     The case of the prosecution is that while the police\npersonnels were on patrolling, they received a secret\ninformation of the vehicle in question carrying liquor\nand when police authorities intercepted the same, on\ncarrying out the search of the said vehicle, its driver was\nfound carrying liquor without any pass or permit.\nTherefore, an FIR being C.R. No. 11200045220514 of\n2022 came to be lodged with Umergaon Police Station,\nDist: Valsad for the offence punishable under theProhibition Act.4.     Heard learned advocate for the petitioner and\nlearned APP for the respondent State.5.     Learned Advocate for the petitioner has urged that\nthis Court has wide powers, while exercising such powers\nunderArticle 226of the Constitution. It can also take into\naccount the ratio laid down in the case of'SUNDERBHAI\nAMBALAL DESAI VS. STATE OF GUJARAT', AIR\n2003 SC 638, wherein, the Apex Court lamented the\nscenario         of      number   of      vehicles   having      been        kept\nunattended and becoming junk within the police station\npremises.6.     Learned APP for the respondent-State has objected\nthe submissions made by learned advocate for the\npetitioner and pointed out that Co-ordinate Bench of this\nCourt       in    the     case    of     'ANILKUMAR         RAMLAL                @Page 2 of 6Downloaded on : Mon May 02 21:16:28 IST 2022R/SCR.A/4559/2022                                       ORDER DATED: 02/05/2022RAMANLALJI MEHTA VS. STATE OF GUJARAT' in\nSpecial Criminal Application No. 2185 of                            2018, Dated:05.04.2018,              and     in       the        earlier        decision             in\n'PARESHKUMAR JAYKARBHAI BRAHMBHATT VS.STATE OF GUJARAT'                      in Special Criminal Application\nNo. 8521 of 2017 and the allied matters decided on\n15.12.2017, has held that the powers of the Magistrate to\norder interim release of the seized vehicle underSection\n98(2)of the said Act has been curtailed, and therefore, the\nCourts below have been held to have no jurisdiction to\norder interim release of the vehicle, pending trial, where,\nthe vehicle is seized in connection with the offence under\ntheProhibition Actand the quantity of the liquor seized\nexceeds 10 liters. Learned APP further, urged that, of\ncourse, powers of this Court underArticle 226of the\nConstitution to order release of the vehicle can be\nexercised at any time, whenever the Court deems it\nappropriate.7.     The coordinate bench of this Court in the case of\nMusa           Khan            Jat      Vs.          State        of         Gujarat\n(SCR.A/7190/2017),                   in an identical case, released the\nvehicle by exercising the power underArticles 226and227of the Constitution of India.8.     It would be worthwhile to refer profitably at this\nstage to the observations made by the Apex Court in\n'SUNDERBHAI               AMBALAL              DESAI      VS.         STATE            OF\nGUJARAT' (Supra), which read as under:Page 3 of 6Downloaded on : Mon May 02 21:16:28 IST 2022R/SCR.A/4559/2022                         ORDER DATED: 02/05/2022\n\n\n\n\n               "15.        Learned senior counsel Mr.\n               Dholakia, appearing for the State of\n               Gujarat further submitted that at present\n               in the police station premises, number of\n               vehicles are kept unattended and vehicles\n               become junk day by day. It is his\n               contention that appropriate directions\n               should be given to the Magistrates who are\n               dealing with such questions to hand over\n               such vehicles to its owner or to the\n               person from whom the said vehicles are\n               seized by taking appropriate bond and the\n               guarantee for the return of the said\n               vehicles if required by the Court at any\n               point of time.16.     However,   the   learned   counsel\n               appearing for the petitioners submitted\n               that this question of handing over vehicles\n               to the person from whom it is seized or to\n               its true owner is always a matter of\n               litigation and a lot of arguments are\n               advanced by the concerned persons.17. In our view, whatever be the situation,\n               it is of no use to keep such seized vehicles\n               at the police stations for a long period. It is\n               for the Magistrate to pass appropriate\n               orders immediately by taking appropriate\n               bond and guarantee as well as security for\n               return of the said vehicles, if required at\n               any point of time. This can be done\n               pending hearing of applications for return\n               of such vehicles."9.     The Apex Court has, thus, directed that within a\nperiod of six months from the date of production of the\nvehicle before the Court concerned, needful be done. It\neven went to the extent of directing that where thePage 4 of 6Downloaded on : Mon May 02 21:16:28 IST 2022R/SCR.A/4559/2022                                  ORDER DATED: 02/05/2022\n\n\n\nvehicle is not claimed by the accused, owner, or the\ninsurance company or by third person, then such vehicle\nmay be ordered to be auctioned by the Court. If the said\nvehicle is insured with the insurance company then\ninsurance company be informed by the Court to take\npossession of the vehicle which is not claimed by the\nowner or a third person. If Insurance company fails to\ntake possession, the vehicles may be sold as per the\ndirection of the Court. The Court would pass such order\nwithin a period of six months from the date of production\nof the said vehicle before the Court. It also directed that\nbefore        handing     over    possession        of      such        vehicles,\nappropriate photographs of the said vehicle should be\ntaken and a detailed panchnama should also be prepared.\nThe Apex Court also held and specifically directed that\nconcerned Magistrate would take immediate action for\nseeing that powers under Section 451 of the Code are\nproperly and promptly exercised and articles are not kept\nfor a long time at the police station, in any case, for not\nmore than fifteen days to one month. It, therefore,\ndirected that this object can also be achieved if there is\nproper supervision by the Registry of the concerned High\nCourt in seeing that the rules framed by the High Court\nwith regard to such articles are implemented properly.10. Resultantly,          this    application       is     allowed.              The\nauthority concerned is directed to release the vehicle of\nthe      petitioner,      being   Tata           Tempo      bearing            RTO\nregistration No. GJ-15-AT-6566, on the terms andPage 5 of 6Downloaded on : Mon May 02 21:16:28 IST 2022R/SCR.A/4559/2022                            ORDER DATED: 02/05/2022\n\n\n\nconditions that the petitioner:(i) shall furnish a solvent surety of the amount\n                equivalent to the value of the vehicle in\n                question as per the value disclosed in the\n                seizure memo or panchnama.(ii) shall file an undertaking before the trial Court\n                that prior to alienation or transfer in any mode\n                or manner, prior permission of the concerned\n                Court shall be taken till conclusion of the trial;(iii) shall also file an undertaking to produce the\n                vehicle as and when directed by the trial Court;(iv) in the event of any subsequent offence, the\n                vehicle shall stand CONFISCATED.(v) Before handing over the possession of the\n                vehicle to the petitioner, necessary photographs\n                shall be taken and a detailed panchnama in that\n                regard, if not already drawn, shall also be\n                drawn for the purpose of trial.11. Rule is made absolute, accordingly. Direct service\npermitted.(ILESH J. VORA,J)\nP.S. JOSHIPage 6 of 6Downloaded on : Mon May 02 21:16:28 IST 2022