Allowed

Dilipbhai Narshibhai Sarvaiya v. State of Gujarat

Gujarat HC28 Dec 2018SCR.A/11514/2018

Case brief

AI extract

What is this about?

In this special criminal application, the High Court of Gujarat exercised its extraordinary and supervisory jurisdiction under Articles 226 and 227 of the Constitution. The petitioner sought the release of his vehicle, Mahindra Bolero Pickup, seized during a raid under the Gujarat Prohibition Act. The Court observed judicial precedents regarding the improper retention of vehicles at police station

What did the court decide?

The vehicle bearing registration No. GJ-03-BT-8718 was directed to be released to the petitioner subject to furnishing a bond of Rs. 5,00,000/- with solvent surety, filing specific undertakings, and b

Dilipbhai Narshibhai Sarvaiya Vs State… — Constitutional and Fundamental Rights | Gujarat HC (2018)

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R/SCR.A/11514/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 11514 of 2018

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DILIPBHAI NARSHIBHAI SARVAIYA

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Versus

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STATE OF GUJARAT

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Appearance:

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MR DIPEN K DAVE(3296) for the PETITIONER(s) No. 1 MS MD MEHTA, APP for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

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Date : 28/12/2018

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ORAL ORDER

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Draft amendment is permitted.

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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 so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973.

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This application is preferred seeking release of Mahindra Bolero Pickup bearing registration No.GJ-03-BT-8718 .

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It is the case of the petitioner that he is the owner of the aforesaid vehicle and it is duly registered with the transport department of

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R/SCR.A/11514/2018 ORDER

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the Government. He had preferred an application for the release of the vehicle in question, which came to be rejected by the JMFC, Rajkot vide order darted 01.10.2018, He also had preferred revision, which too came to be rejected by the learned Sessions Judge, Rajkot, vide order dated 17.11.2018 in Criminal Revision Application No.232/2018. He is, therefore, before this Court.

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The case of the prosecution is that on 07.03.2016 , 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 near Government godown of grains Gayakwadi Sheri No.2 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.III-27/2016 came to be lodged with Pranagar Police Station, Rajkot under Sections 66(b), 65(a)(e), 116 etc. of the Gujarat Prohibition Act.

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This Court had issued rule, making the same returnable in the month of December, 2018. Today, learned Advocate appearing for the petitioner is heard at length.

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R/SCR.A/11514/2018 ORDER

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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 638, wherein, the Apex Court lamented the scenario of number of vehicles having been kept un-attended and becoming junk within the police station premises.

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This Court has also heard the learned APP and she has urged this Court that the appropriate conditions be imposed, while ordering the release of the vehicle. She 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

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R/SCR.A/11514/2018 ORDER

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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. She, further, 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. She 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. She 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 ’.

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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

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R/SCR.A/11514/2018 ORDER

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Constitution.

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This Court (Coram: J.B. Pardiwala, J.) 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, 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.

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9.1 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:

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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

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R/SCR.A/11514/2018 ORDER

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of time.

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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.

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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.”

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9.2 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

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R/SCR.A/11514/2018 ORDER

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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.

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Resultantly, this application is ALLOWED . The authority concerned is directed to RELEASE the vehicle of the petitioner, being

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R/SCR.A/11514/2018 ORDER

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No.GJ-03-BT-8718, on the terms and conditions that the petitioner:

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(i) shall furnish, by way of security, bond of Rs.5 ,00,000/-(five lakh only) and solvent surety of the equivalent amount;

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(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;

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(iii) shall also file an undertaking to produce the vehicle as and when directed by the trial Court;

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(iv) in the event of any subsequent offence, the vehicle shall stand CONFISCATED.

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10.1 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.

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R/SCR.A/11514/2018 ORDER

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10.2 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.

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Rule is made absolute, accordingly. Direct service is permitted.

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(SONIA GOKANI, J)

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KUMAR ALOK

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Dilipbhai Narshibhai Sarvaiya v. State of Gujarat

Case brief

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Dilipbhai Narshibhai Sarvaiya v. State of Gujarat

Case brief

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