MUKTABEN JENTIBHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) [1] Heard learned advocate Mr.H.M.Niyalchandani for the Petitioner and learned APP Ms. Maithili Mehta for the Respondent- State through video conference. [2] The petitioner has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Section 227 of the Constitution of India so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973. Rule . Learned APP waives service of notice of Rule on behalf of the Respondent - State of Gujarat. [3] This petition is preferred seeking release of the vehicle - Rikshaw bearing Registration No. GJ 03 BU 9039, which is seized in connection with FIR No. 11213091200025 registered with Shapar Veraval Police Station, District Rajkot (Rural) for the offences punishable under the Prohibition Act. [4] It is the case of the petitioner that petitioner is the owner of the aforesaid vehicle and it is duly registered with the transport department of the Government. He is, therefore, before this Court. [5] The case of the prosecution is that while the police personnels were on patrolling, they received a secret information of the vehicle in question carrying liquor and when police authorities intercepted the same, on carrying out the search of the said vehicle, its driver was found carrying liquor without any pass or permit. Therefore, an FIR came to be lodged for the offence under the Gujarat Prohibition Act. [6] Learned advocate for the petitioner time and again vehemently submitted that the co-ordinate Bench passed the order in favour of the petitioner in identical cases. Further learned advocate for the petitioner has placed reliance upon the judgments of co-ordinate Bench (1) in case of Ritesh Bishmber Agrawal vs. State of Gujarat in Special Criminal Application No. 5533 of 2018 order dated 18.01.2019, (2) in case of Ganibhai Yusufbhai Jamroth vs. State of Gujarat in Special Criminal Application No. 2776 of 2020 order dated 07.07.2020, (3) in case of Ranjitbhai Ishvarbhai Chunara (Vaghela) vs. State of Gujarat in Special Criminal Application No. 7631 of 2019 order dated 12.06.2020, (4) in case of Zala Mahendrasinh Kirtisinh vs. State of Gujarat in Special Criminal Application No. 2717 of 2020 order dated 26.06.2020, (5) in case of Prajapati Rajendrakumar Rameshbhai Vs. State of Gujarat in Special Criminal Application No. 2692 of 2020 order dated 14.07.2020 and also placed reliance upon the judgment delivered by the Hon'ble Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat , 2003 AIR(SC) 638. [7] Per contra, learned APP has opposed the release of muddamal vehicle so involved in the offence and submitted that appropriate orders may be passed. She has placed on record the report of the I.O. which is ordered to be taken on record. Further, learned APP has also placed reliance upon the judgment passed by this Court in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat in Special Criminal Application No. 2185 of 2018 dated 05.04.2018. Order dated 12.06.2020 passed in Special Criminal Application No. 7631 of 2019, wherein contrary view has taken in releasing muddamal vehicle involved in the Gujarat Prohibition Act. Learned APP further contended that SLP (Cri.) No. 886 of 2018 is pending before the Hon'ble Apex Court in respect of the said issue, and therefore, no power would be exercise by this Court for releasing the vehicle seized by Police in the prohibition Offence. It was also contended that learned trial Court had rightly disallowed the muddamal application in that case by invoking Section 98(2) of the Prohibition Act and Court below has no jurisdiction to pass order for interim release of muddamal vehicle when trial is pending in connection with offence under the Prohibition Act. Learned APP further urged that in view of Section 98(2) of the latest Prohibition Act, as well as, as per judgment passed by this Court in case of Anilkumar Ramlal @ Ramanlaji Mehta Vs. State of Gujarat , the vehicle used in Probhition, where quantity is more than 10 liters, cannot be released. Further, learned APP also placed reliance upon judgment of Co ordinate Bench dated 15.12.2017 in Special Criminal Application No. 8521 of 2017. [8] On thus hearing both the sides, without determining the other issues raised by the petitioner, in reference to Sections 98 and 99 and other provisions of the said Act and reserving that to be determined in future, in an appropriate proceedings being a contentious issue, this Court choses not to enter into that arena in the present matter and instead exercise the powers under Articles 226 and 227 of the Constitution. Moreover, lying of the vehicle with the police station is of no use to anybody but in fact is a national waste and ultimately it is a loss to public exchequer and loss to the government if the vehicle is not released. [9] It is nobody's case that same vehicle is used in all earlier offences and therefore, merely antecedents of few offences upon the petitioner cannot deny the interim possession of vehicle to the petitioner and on the basis of the judgment of Hon'ble Supreme Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), this Court is inclined to exercise extraordinary powers under Articles 226 and 227 of the Constitution. [10] This Court however in the case of in 'ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT' (Supra) in Special Criminal Application No. 2185 of 2018, Dated: 05.04.2018 and in the case of in 'PRAVINBHAI CHHAGANBHAI PARMAR VS. STATE OF GUJARAT' (Supra) in Special Criminal Application No. 7761 of 2018, Dated: 07.09.2018 has also released the vehicle recently under Articles 226 and 227 of the Constitution, exercising its powers to do that even at an initial stage.