AHMEDABAD RASULBHAI SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) I am not marking the attendance of Mr. Samir Dave, the learned APP even though he is present, I am not hearing him also at this stage of preliminary hearing of the matter, though advance copy of the petition is given to the State of Gujarat. Merely on the ground that the petitioner has given advance copy of the petition for the State of Gujarat, it does not acquire any right to be heard at the preliminary hearing stage. The right of hearing accrues to the State of Gujarat only after the matter is admitted or preadmission notice is given or by filing caveat prayer in the matter if under the Rules it is permissible.

(2.) The facts of the case are that the petitioner claiming himself to be a registered owner of Armada Jeep filed an application under Sec. 451 of the Criminal Procedure Code in Court of Judicial Magistrate concerned for release of the vehicle aforesaid in his favour. This vehicle is a muddamal in the Criminal Complaint (FIR No. 31/2000) registered at Meghraj Police Station, Taluka - Modasa, District Sabarkantha in the Prohibition case under Secs. 66(B), 65(A), 81, 1l(C)(Kh) of the Bombay Prohibition Act This application came to be rejected by the third Judicial Magistrate First Class, Modasa, under the order dated 30th September, 2000. Against this order the petitioner preferred a Revision Application in the Court of Additional Sessions Judge, Sabarkantha at Himatnagar and the same came, to be dismissed by the additional Sessions Judge, Sabarkantha at Himatnagar on 15th November, 2000. Hence, this petition under Art. 227 of the Constitution.

(3.) The learned counsel for the petitioner contended that both the Courts below have committed Serious error of jurisdiction in declining to give custody of the vehicle to the petitioner who is a registered owner thereof. Carrying this contention further, the learned counsel for the petitioner urged that in the matter of releasing of the vehicle, which is muddamal in the Criminal Case, the Courts have to consider firstly as to who is the person eligible to keep the possession and secondly that once this vehicle is released, its production can easily be procured or not. The second contention raised is that the Courts have not considered an important aspect in case, that in case the vehicle is allowed to continue at the Police Station till the criminal case is finally decided, it will be reduced to scrap value. In his submission, keeping the vehicle in open place pending the trial of the criminal case is not desirable. Lastly, it is contended that the jeep was taken by the driver for taking his family members for Darshan of Ambaji. The Jeep in used for carrying liquor without his consent or knowledge by the driver. The learned counsel for the petitioner submits that in the criminal case, the petitioner is neither named as accused nor it is the case of the respondents that he was the person responsible for the commission of offence. In support of his contention, the learned counsel for the petitioner has placed reliance on the following decisions. (1) Assistant Forest Conservator & Ors. vs. Sharad Ramchandra Kale, [1998 (1) GCD 746 (SC)] (2) Dasharathlal Gupta vs. The State of Maharashtra, [CrLR (Mah) 1980 p. 534] (3) Abhay Singh vs. State of Rajasthan, [1991 (1) Crimes (Raj) p. 727] (4) Rahim Khan vs. Union of India & Ors., [1991 (1) (Crime) (Raj) p. 611]