Allowed

Firojbhai Allarakha Vhora v. State of Gujarat

Gujarat HC5 Aug 2020SCR.A/3217/2020

Case brief

AI extract

What is this about?

In this Special Criminal Application, the High Court of Gujarat directed the release of a Maruti Swift car seized under the Gujarat Prohibition Act. Although a clause in the Act appeared to embody an embargo on releasing the vehicle, the court relied on a coordinate bench decision and Section 451 CrPC to order release upon the applicant furnishing a solvent surety and filing an undertaking not to

What did the court decide?

Directed the trial court to release the vehicle immediately upon verification of ownership by the petitioner furnishing a solvent surety and file an undertaking.

Firojbhai Allarakha Vhora Vs State of Gujarat — Execution and Attachment | Gujarat HC (2020)

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R/SCR.A/3217/2020 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 3217 of 2020

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FIROJBHAI ALLARAKHA VHORA Versus

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STATE OF GUJARAT & 1 other(s)

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========================================================== Appearance:

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MR MAULIN G PANDYA(3999) for the Applicant(s) No. 1 for the Respondent(s) No. 2 MR.R.C.KODEKAR APP(2) for the Respondent(s) No. 1

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CORAM: HONOURABLE MR. JUSTICE R.P.DHOLARIA

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Date : 05/08/2020

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ORAL ORDER

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[1] Rule . Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent State.

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[2] By way of present writ petition filed under Article 226 of the Constitution of India, the petitioner has sought for a direction to concerned authority to hand over the Maruti Swift Car bearing registration No.GJ-23-AF-4776 in connection with the FIR being Prohibition C.R.No.11821050200028 of 2020 registered with Sagtala Police Station, Dahod in view of clear embargo under Section 98(2) of the Gujarat Prohibition Act, 1949 (“the Act” for short) the subordinate courts are not granting any relief.

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[3] It is contended by learned advocate for the petitioner that by virtue of the provisions of section 98 of the Act, there is a clear embargo for handing over the custody of the vehicle used in the offence pending the trial by learned trial Courts. It is, therefore, requested that appropriate directions should be given to the concerned Magistrate/trial Court who is dealing with such questions to hand over such vehicles to

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Page 1 of 3

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R/SCR.A/3217/2020 ORDER

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its owner or to the person from whom the said vehicles are seized by taking appropriate bond/guarantee/solvent surety for the return of the said vehicles if required by the Court at any point of time.

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[4] On the other-hand, learned Additional Public Prosecutor vehemently submitted that there is embargo under section 98 of the Code of Criminal Procedure 1973 to release the muddamal vehicle used in the offence and while interpreting the provisions of law, the coordinate bench of this Court in the case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat decided on 15.12.2017 held that in view of the embargo, the magisterial courts as well as revisional courts have no jurisdiction to hand over custody of the vehicle used in the offence as per the provisions of section 451 of the Code of Criminal Procedure 1973. Lastly, he requested this Court to dismiss the present petition in limine.

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[5] Considering the facts and circumstances of the present case and the arguments advanced by learned advocate for the parties, it can be seen that the present matter is squarely covered by the decision rendered by this Court in Special Criminal Application No. 7642 of 2018 (Hardikbhai Mukeshbhai Chauhan vs. State of Gujarat) decided on 05.09.2018.

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[6] In the result, this application is allowed. The learned trial Court concerned is directed to immediately release the vehicle in question i.e. Maruti Swift Car bearing registration No.GJ-23-AF-4776 in connection with the FIR being Prohibition C.R.No.11821050200028 of 2020 registered with Sagtala Police Station, Dahod, after due verification as well as learned Magistrate shall inquire as regards entitlement as to whether he is the owner of vehicle or not and following the procedure of recording such evidence

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Page 2 of 3

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R/SCR.A/3217/2020 ORDER

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as it thinks necessary as provided under section 451 of the Code of Criminal Procedure 1973 and on the petitioner fulfilling the following conditions:

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(i) The petitioner shall furnish a solvent surety of the amount equivalent to the value of the vehicle in question as per the value disclosed in the seizure memo or panchnama.

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(ii) The petitioner shall file an undertaking on oath before the trial Court that he shall not transfer, alienate, part with the possession of the vehicle or create any charge over the vehicle till the conclusion of the trial.

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(iii) The petitioner shall produce the vehicle as and when the authority or the Court concerned directs him to do so.

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[7] With the above, this petition is disposed of. Rule is made absolute. Registry to send the copy of the this Order to the concerned Authority through Fax and Email.

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(R.P.DHOLARIA, J)

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TAUSIF SAIYED

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Firojbhai Allarakha Vhora v. State of Gujarat

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Firojbhai Allarakha Vhora v. State of Gujarat

Case brief

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