1. Heard learned advocate Mr. Kishan H. Daiya for the Petitioner and learned APP Mr. H.K.Patel for the respondent- State through video conference.2. The petitioner has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction underArticle 227 of the Constitution of India so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973.3. This petition is preferred seeking release of the vehicle - HONDA MOTOR CYCLE AND SCOOTER I. Moped ACTIVA 4G (IMPERIAL RED METALLI) bearing registration No. GJ05-PS-0439, which is seized in connection with prohibition C.R. No. 11210047201500/2020 registered with Udhana Police Station, District- Surat City .4. It is the case of the petitioner that petitioner is the owner of the aforesaid vehicle and it is duly registered with the transport department of the Government. He is, therefore, before this Court.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 came to be lodged for the offence under the Gujarat Prohibition Act.6. Learned advocate for the petitioner time and again vehemently submitted that the co-ordinate Bench passed the order in favour of the petitioner in identical cases. Further learned advocate for the petitioner has placed reliance upon the judgments of co-ordinate Bench (1) in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No. 5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated 26.06.2020, (5) in case of Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in Special Criminal Application No. 2692 of 2020 order dated 14.07.2020 and also placed reliance upon the judgment delivered by the Hon'ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat, (2003) AIR SC 638.7. Per contra, learned APP has opposed the release of muddamal vehicle so involved in the offence and submitted that appropriate orders may be passed. He has further submitted that there are no antecedent except the present one and the Petitioner is not named in the FIR. He has placed on record the report of the I.O. which is ordered to be taken on record. Further, learned APP has also placed reliance upon the judgment passed by this Court in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018 dated 05.04.2018. Order dated 12.06.2020 passed in Special Criminal Application No. 7631 of 2019, wherein contrary view has taken in releasing muddamal vehicle involved in the Gujarat Prohibition Act. Learned APP further contended that SLP (Cri.) No. 886 of 2018 is pending before the Hon'ble Apex Court in respect of the said issue, and therefore, no power would be exercise by this Court for releasing the vehicle seized by Police in the prohibition Offence. It was also contended that learned trial Court had rightly disallowed the muddamal application in that case by invoking Section 98(2) of the Prohibition Act and Court below has no jurisdiction to pass order for interim release of muddamal vehicle when trial is pending in connection with offence under the Prohibition Act. Learned APP further urged that in view of Section 98(2) of the latest Prohibition Act, as well as, as per judgment passed by this Court in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat, the vehicle used in Probhition, where quantity is more than 10 liters, cannot be released. Further, learned APP also placed reliance upon judgment of Co ordinate Bench dated 15.12.2017 in Special Criminal Application No. 8521 of 2017.8. On thus hearing both the sides, 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. Moreover, lying of the vehicle with the police station is of no use to anybody but in fact is a national waste and ultimately it is a loss to public exchequer and loss to the government if the vehicle is not released.9. It is nobody's case that same vehicle is used in all earlier offences and therefore, merely antecedents of few offences upon the petitioner cannot deny the interim possession of vehicle to the petitioner and on the basis of the judgment of Hon'ble Supreme Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), this Court is inclined to exercise extraordinary powers under Articles 226 and 227 of the Constitution.10. This Court however in the case of in 'ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT' (Supra) in Special Criminal Application No. 2185 of 2018, Dated: 05.04.2018 and in the case of in 'PRAVINBHAI CHHAGANBHAI PARMAR VS. STATE OF GUJARAT' (Supra) in Special Criminal Application No. 7761 of 2018, Dated: 07.09.2018 has also released the vehicle recently under Articles 226 and 227 of the Constitution, exercising its powers to do that even at an initial stage.10.1 This Court has also referred the order passed by the co-ordinate Bench in Special Criminal Application No. 200/2019 dated 18.01.2019 wherein the Court has released the vehicle Auto rickshaw. Further this Court has also referred to the order passed by this Court dated 10.04.2018 in Special Criminal Application No 2469/2018 wherein the order passed by the revisional Court is quashed and set aside and the muddamal vehicle Xylo car involved in the offence is released.10.2 It would be worthwhile to refer profitably at this stage to the observations made by the Hon'ble 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."10.3 The Hon'ble 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 Hon'ble 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.11. Resultantly, this application is ALLOWED. The authority concerned is directed to RELEASE the vehicle of the petitioner, being vehicle - HONDA MOTOR CYCLE AND SCOOTER I. Moped ACTIVA 4G (IMPERIAL RED METALLI) bearing registration No. GJ05-PS-0439, which is seized in connection with prohibition FIR C.R.No. 11210047201500/2020 registered with Udhana Police Station, District- Surat City, on the terms and conditions that the petitioner:(i) shall furnish a solvent surety of the amou
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nt equivalent to the value of vehicle in question before the trial Court as per the value disclosed in the seizure memo or pachnama.(ii) shall file an undertaking before the trial Court that prior to alienation or transfer, alienate, part with the possession of the vehicle or create any charge over the vehicle 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.12. Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed panchnama with respect to ownership of the vehicle, if not already drawn, shall also be drawn for the purpose of trial.13. If, the IO finds it necessary, VIDEOGRAPHY of the vehicle also shall be done. Expenses towards the photographs and the videography shall be BORNE by the petitioner.Rule is made absolute, accordingly. Direct service is permitted through fax/ e-mail.