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SCR.A/1099/2005 6/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1099 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
==============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==============================================================
JAMATSINH
MALSINGH WAGHELA (THAKORE) - Applicant
Versus
STATE
OF GUJARAT - Respondent
==============================================================
Appearance
:
MR
VIRAT G POPAT for
Applicant : 1,
Mr. U.R. Bhatt, Ld. APP for
Respondent.
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 26/09/2005
ORAL
JUDGMENT
Leave
to amend the prayer clause is permitted.
Rule.
Mr. U.R. Bhatt, learned APP waives service of rule on behalf of
respondent State. With the consent of learned counsels for the
parties this matter is taken up for final disposal.
The petitioner has filed
the present petition under Article 227 of
the Constitution of India, read with Section 482 and section 451/457
of Cr.P.C., essentially for releasing the
vehicle i.e. Maruti Car bearing Registration No. GJ-6-K-9212 lying
at present in the custody of Gadh police
station during pendency of the trial in connection with the police
station C.R. No: 62/2003. The petitioner
has submitted that he is the owner of the
subject maruti car. The vehicle was used by his brother on 31/5/2003
for illegal transportation of liquor and the same was seized by the
police officers on the same day and the
case under Bombay Prohibition Act came to
be registered.
The petitioner
preferred an application
for custody of maruti car before the learned Jt. JMFC on 3/7/2003
which came to be rejected on 21/7/2003.
The petitioner thereafter preferred
Criminal Revision
Application No. 22 of 2003 which also came to be rejected on
18/8/2003.
The petitioner
preferred this petition for obtaining
interim custody of the vehicle during
pendency of the trial, and challenging the orders
passed by learned Magistrate on 3/7/2003 and the Sessions Court
dated 18/8/2003 respectively.
The petitioner
has submitted that the learned JMFC as
well as Sessions Court ought to have
appreciated the fact that the vehicle in question, if not put to
proper run, is likely to be render non
functional and would be rendered useless. The releasing of vehicle
and handing over the custody thereof to the petitioner,
who is appearing to be
the registered owner as per the
certificate of registration, would in no way jeopardize
the case of the prosecution.
The petitioner’s counsel has submitted
that the application, if any, made for confiscating the said vehicle
also will have no adverse impact as during pendency of the trial
the order of confiscation is not straightway likely to be
made. The petitioner’s counsel submits
that when the offence itself is yet to be proved, the order of
confiscation, if any, would not be prejudicing the final order in
the trial.
The learned counsel for the
petitioner’s relied upon the decision of
the Apex Court in case of SUNDERBHAI AMBALAL DESAI Vs. STATE OF
GUJARAT, reported in (2002) 10 SCC pg. 283 and submits that, in such
an event ordinarily the vehicle is required to be
handed over to the registered owner. Non
granting the custody of the vehicle is in no way helping the
prosecution. He has also relied upon the
judgment of this Court in case of RAKESHKUMAR KACHARABHAI PRAJAPATI
Vs. STATE OF GUJARAT in Special Criminal
Application No. 180 of 2004 dated
21/12/2004 wherein this Court has ordered
handing over custody of the vehicle involved in the offence.
The counsel of the
petitioner submits
that the interim custody of the subject vehicle, therefore, deserves
to be ordered to
be handed over to the present petitioner on the strictest conditions
possible, so as to ensure the production
of vehicle as and when required during the trial. Learned counsel
has further submitted that the petitioner
is ready & willing to establish his
bonafide by depositing Rs.30,000/- before
the concerned trial court for getting interim custody of the vehicle
pending the trial which may be subject to the final outcome of the
trial.
Learned APP Shri. Bhatt
with all vehemence at his command opposed the present
application. He submits that the vehicle
is involved in serious offence under Prohibition
Act and as many as 378 bottles containing
liquor were seized from the vehicle.
In view of this the order passed by the trial court and confirmed by
the Sessions Court does not call for any
interference under section
227 of the Constitution of India. Therefore, Shri. Bhatt has
submitted that the vehicle is otherwise
also liable to be confiscated as it is
clearly provided under the Prohibition Act. In view of this, he
submitted that the order passed by learned trial court and Sessions
court may not be interfered with.
Shri. Bhatt, however, could
not point out any cogent reason for not
releasing the vehicle by way of interim
custody to the petitioner, nor could
he point out as to how the facts discussed
in the case of Rakeshkumar Kachrabhai Prajapati (supra) is different
than that of the present one.
This Court has perused the
record and the judgment of the trial court
as well as of the revisional court. The
provision of section 451 deserves
to be appreciated in its true perspective. The provision
of section 451 of Cr.P.C., empowers the
concerned court to exercise
its discretion in respect of disposal of the property pending the
trial in certain cases. The decision of
the Apex Court in case of Sunderbhai Ambalal
Desai (supra) is certainly applicable in the facts of the present
case. The decision of this Court in case
of Rakeshkumar Kachrabhai Prajapati in Special Criminal
Application No. 180 of 2004 which has
followed the decision of the Supreme Court
in case of Sunderbhai Ambalal Desai (supra) is also be applicable
in respect of present facts & circumstances of the case.
It also deserves to
be considered that the petitioner
has volunteered to deposit Rs.30,000/=
with the trial court for establishing his
bonafide that the vehicle is going to be
maintained and produced as and when required before the court. In
view of these facts & circumstances,
if the interim custody of subject vehicle if ordered to
be given to the petitioner, no
irreparable injury is going to cause to the case of the prosecution.
Therefore, subject vehicle is ordered to
be handed over to the petitioner on the
following conditions;
that
the petitioner shall deposit Rs.30,000=00
(Rs. Thirty thousand only) before the
trial court ( before 2nd Jt.
Judicial Magistrate (JD), Palanpur on or before 14/10/2005, and
shall produce the receipt thereof before
the concerned police station before the interim
custody is transferred to the petitioner;
petitioner
shall furnish one surety of Rs.50,000/-;
that the said vehicle shall
be preserved in good condition
by the petitioner and that the said
vehicle shall not be transferred,alienated or in any way the
petitioner shall not part with the
possession of the said vehicle;
that the petitioner
shall not permit any misuse of the said
vehicle whenever it is put to motion;
that
the said vehicle shall be produced before the Court
as and when it is required by the trial court even in
pursuance of application filed by the
State under section 99 and 100 of the Bombay Prohibition
Act;
that the petitioner
shall not use the said vehicle for any illegal purpose
and shall not permit the user thereof for illegal
purpose;
that on breach of any of
the above conditions, the investigating
officer shall be at liberty to re-seize
the said vehicle.
This
order is only for interim custody of the
vehicle and it is made clear that this order shall have no adverse
impact upon the application, if any, made
for the confiscation/re-seize.
The petition
is partly allowed. Rule is made absolute to the above said extent.
Direct service is permitted.
[
S.R. BRAHMBHATT, J ]
/vgn
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