MAYUR MAHESHBHAI RANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition, under Article 227 of the Constitution of India, the petitioner original accused has prayed for an appropriate order quashing and setting aside the order dated 26.04.2007 passed by the learned Chief Judicial Magistrate, Surat in Muddamal Application No. 102 of 2007, confirmed by the learned Presiding Officer, Fast Track Court No.3, Surat vide judgment and order dated 17.05.2007 in Revision Application No. 163 of 2007 and further prayed for release of Muddamal Motor Cycle in favour of the father of the petitioner Maheshbhai Rana.

(2.) The petitioner is owner of one Hero Honda Splender Plus Motor cycle bearing registration No. GJ-5-EC-5363. A FIR came to be filed against the petitioner being C.R.No.III 5095 of 2007 on 08.04.2007 for the offences punishable under Sections 66(1)B and 65E of the Bombay Prohibition Act, 1949 ('Prohibition Act' for short) alleging inter-alia that the petitioner was caught with 50 liters of country liquor, same was carried and/or transported on the said motor cycle in 50 plastic bags of 1 liter each. That during the course of investigation, aforesaid motor cycle came to be seized by the Investigating Officer as Muddamal. The petitioner is detained under the provisions of Prevention of Anti Social Activities Act ('PASA' for short). The petitioner submitted an application being Muddamal Application being No.102 of 2007 under Section 451 of the Criminal Procedure Code ('Cr.P.C.' for short) in the Court of learned Chief Judicial Magistrate, Surat for handing over Muddamal-Motor cycle to him and/or his father Maheshbhai Rana. That the learned Chief Judicial Magistrate, Surat vide judgment and order dated 26.04.2007 dismissed the said application by observing that the said Muddamal-Motor cycle was earlier also seized during the course of investigation as the same was used for transporting illegal liquor and; that same was earlier released on certain conditions and one of the conditions was that the said vehicle shall not be used again for illegal purpose and at that time the motor cycle was used by changing number plate. Said motor cycle came to be used again for illegal purpose and if the same is released, it is likely to be used for committing the offence under the Prohibition Act, therefore, the learned Chief Judicial Magistrate, Surat dismissed the said application. Being aggrieved and dissatisfied with the order passed by the learned Chief Judicial Magistrate, Surat dated 26.04.2007 in Muddamal Application No. 102 of 2007, the petitioner preferred Criminal Revision Application No. 163 of 2007 and the learned Presiding Officer, Fast Track Court No.3, Surat vide judgment and order dated 17.05.2007 dismissed the said Revision Application confirming the order passed by the learned trial Court. Being aggrieved and dissatisfied with aforesaid two orders, the petitioner original accused has preferred the present petition under Article 227 of the Constitution of India.

(3.) Mr.Ankur Oza, learned Advocate appearing on behalf of the petitioner-original accused has vehemently submitted that both the Courts' below have materially erred in not releasing Muddamal-vehicle in favour of the petitioner and/or his father Maheshbhai Rana. It is submitted that by keeping said vehicle ideal the condition of the vehicle would be deteriorated. Mr.Oza, learned Advocate has submitted that as the petitioner is detained under the provisions of PASA, it is not likely to be used by the petitioner and same will be used by his father and; that it will not be used for any illegal purpose by his father. Therefore, it is requested to release the vehicle seized. Mr.Oza, learned Advocate has relied upon the decision of the learned Single Judge of this Court in the case of Jitenbhai Khantilal Shah v/s. State of Gujarat rendered in Special Criminal Application No. 751 of 2005 as well as the decision of the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai v/s. State of Gujarat reported in (2002) 10 SCC 290 in support of his above submission.