MEHULBHAI KANTIBHAI CHUNARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) What is challenged in the present writ petition under Articles 226 & 227 of the Constitution of India is the order dated 07.10.2020 passed by learned Principal Sessions Judge, Kheda at Nadidad as well as the order dated 20.12.2019 passed by learned Additional Judicial Magistrate, First Class, Kheda rejecting the prayer of handing over the muddamal vehicle having its registration No. GJ-27- AA-9541 in connection with the FIR being Prohibition C.R.No.III-632 of 2019 registered with Kheda Town Police Station, Kheda for the offence under the provisions of Gujarat Prohibition Act, 1949 ( 'the Act' for short). Being aggrieved by the same, the petitioner has preferred the present petition under Article 227 of the Constitution of India.

(2.) It is contended by learned advocate for the petitioner that learned trial Court as well as revisional Court have not handed over interim custody of the vehicle in question in view of the provisions of Section 98 of the Act which provides embargo for handing over the custody of the vehicle used in the offence pending the trial. 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 vehicle to its owner or to the person from whom the said vehicle is seized by taking appropriate bond/guarantee/solvent surety for the return of the said vehicle if required by the Court at any point of time.

(3.) On the other hand, learned APP vehemently submitted that there is embargo under Section 98 of the Act to release the muddamal vehicle used in the offence and while interpreting the provisions of law, the Co-ordinate 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 Court as well as Revisional Court have no jurisdiction to handover 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.