Justice Bela M.Trivedi and Justice Pankaj Mithal ruled that that the appellant can not invoke Writ Jurisdiction or Supervisory Jurisdiction under Article 226 or Article 227 of the Constitution of India, 1950 unless a petition is filed before the concerned court to release the seized vehicle by the authority under Section 451 of the Code of Criminal Procedure, 1973.
The appellant was the owner of the Eicher 10.80 (Blue) bearing no. GJ 05-BT-0899 which was seized by police who were on patrolling duty received a secret information that the driver of the vehicle was allegedly carrying the English Liquor (1240.200 litres) worth rupees 7 lakhs in the said vehicle without any pass or permit.The vehicle was seized by the police and FIR was registered against the appellant son in the police station.
The State of Gujarat was the respondent who filed counter affidavit stating that the seized vehicle will not be released before the final judgment of the court and the vehicle possessed more liquor than the prescribed limit under Section 98 (2) of the Gujarat Prohibition Act, 1949.Hence the vehicle was liable for the confiscation and could not be released on bond or surety till the final judgment of the court.
“Section 451 of the Code of Criminal Procedure, 1973 states that the criminal court is empowered to pass order for custody and disposal of the seized articles produced before it pending an inquiry or trial or for selling or disposing of such property, having regard to the nature of the property in question, after recording the evidence in that regard.”
The appellant without approaching the concerned court i.e.. Criminal court under Section 451 of Code of Criminal Procedure, 1973 had taken recourse to the High Court directly by filing Special Criminal Application under Article 226/227 of the Constitution of India. The High Court dismissed the petition stating that the criminal court is empowered to release the seized property. The difference between seizure and confiscation under Section 98 of Gujarat Prohibition Act,1949 was pointed out by the court that seizure is the preliminary step which will lead to confiscation. The power of seizure is with the police personnel ,revenue authorities, prohibition officers but the power of confiscation is with the Jurisdiction court in accordance with the provision of the statute.
Further, Section 132 of the Gujarat Prohibition Act, 1949 states that authorized Prohibition Officer or the officer in charge of Police Station may after such inquiry as may be necessary either forward the article seized to the jurisdictional Magistrate where the person arrested is forwarded, if it appears to him that such seized article is required as an evidence; or send the seized article with full report to the collector if it appears to him that such seized article is liable to confiscation but is not required as an evidence; or return such seized article to the person from whose possession it was taken, if no offense appears to have been committed.
The order was appealed before the Supreme Court for challenging the order of the High Court of Gujarat. The Supreme Court referred to the case of Sunderbhai Ambalal Desai vs. State of Gujarat where it was held that it is of no use to keep the seized vehicle for a long period in the police station and Magistrate can pass order for proper custody of the seized vehicle during the pendency of trial under Section 451 of the Code of Criminal Procedure, 1973.
Therefore Supreme Court of India dismissed the appeal stating that the appellant had taken wrong recourse by directly approaching High Court under Article 226 or 227 of the Constitution of India,1950 for release of the seized vehicle but it is open for the appellant to approach the concerned criminal court for release of vehicle which was seized for allegedly carrying liquor beyond the maximum limit without any permit or pass.
Case Title : KHENGARBHAI LAKHABHAI DAMBHALA v THE STATE OF GUJARAT, 2024 INSC 285
Written by: Ayesha Hussain, College name : Surendranath Law College, 4th year .A.LL.B(HONS),Intern under Legal Vidhiya
REFERENCES
Riya Rathore, Verdictum ( April 9, 2024; 4:15 PM) https://www.verdictum.in/court-updates/supreme-court/khengarbhai-lakhabhai-dambhala-v-the-state-of-gujarat-2024-insc-285-criminal-court-section-451-crpc-release-of-seized-vehicle-1529806
Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 Supp(3) SCR 39
https://www.the-laws.com/Encyclopedia/Browse/Case?%0D%0AcaseId=004202772000
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