MAHAMMADKHAN NAVABKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of present writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has sought for a direction to concerned authority to hand over the muddamal vehicle bearing registration No.GJ-01-KN-2488 in connection with the FIR being Prohibition C.R.No.11197057200879 of 2020 registered with Waghodia Police Station, Vadodara 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.

(2.) 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 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.

(3.) 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.