R/SCR.A/3907/2025 ORDER DATED: 24/06/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL) NO. 3907 of 2025 ========================================================== CHOLA MANDALAM MS GENERAL INSURANCE CO. LTD. THROUGH NILESH B. SHAH Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR UVESH M SHAIKH(11313) for the Applicant(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2 MR YUVRAJ BRAHMBHATT, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 24/06/2025 ORAL ORDER 1. RULE. Learned APP waives notice of rule for and on behalf of the respondents. 2. The petitioner – Finance Company has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Article 227 of the Constitution of India so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 with a prayer to release Muddamal Vehicle i.e. Hyundai Alcazar Car bearing RTO registration No.UP-81-CX-6525. 3. The case of the prosecution is that while the police personnel 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 being C.R. No.11217002240252 of 2024 registered with Sankeshwar Police Station, District Patan, for the offence punishable under the Prohibition Act. Page 1 of 4 R/SCR.A/3907/2025 ORDER DATED: 24/06/2025 4. Heard learned advocate for the petitioner and learned APP for the respondents. 5. Learned Advocate for the petitioner has urged that this Court has wide powers under Article 226 of the Constitution. It can also take into account the ratio laid down in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in AIR 2003 SC 638, wherein, the Hon’ble Apex Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police station premises. 6. Learned APP for the respondents has objected the submissions made by learned advocate for the petitioner and urged that of course, powers of this Court under Article 226 of the Constitution to order release of the vehicle can be exercised at any time, whenever the Court deems it appropriate but this is not a fit case to exercise the jurisdiction and hence, requested to dismiss the petition. 7. Keeping in mind the law laid down by the Hon’ble Supreme Court in the case of Khengarbhai Lakhabhai Dambhala vs. The State of Gujarat reported in 2024 INSC 285 as well as the provision of section 98(2) of the Prohibition Act (amended on 31.07.2024), the respondent – authority failed to show or point out that after the amendment under Section 98(2) of the Prohibition Act, confiscation of the seized vehicle being done and auction proceedings have been initiated or for the said procedure, authority has approached the learned Magistrate. Further, though as per the regulation, the prohibited goods transported in the muddamal vehicle is more than the permissible limit i.e. exceeding 20 liters, due to this reason the vehicle is liable to be confiscated by the government, both the Courts below have not committed any error in passing the order of denying the interim custody of the vehicle to the petitioner however, till date no confiscation proceedings R/SCR.A/3907/2025 ORDER DATED: 24/06/2025 being initiated and vehicle remained in the police station as it is. In absence of any such material or initiation of confiscation of vehicle, it is expedient to avoid situation of vehicle getting deteriorated pending the trial and hence, keeping in mind the aforesaid peculiar fact and keeping in mind the law laid down by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002)10 SCC 283, with certain stringent conditions, present petition deserves consideration in exercise of powers under Article 226 of the Constitution of India. 8. Resultantly, this petition is allowed. 9. The learned Trial Court / authority concerned is directed to release the vehicle of the petitioner being Hyundai Alcazar Car bearing RTO registration No.UP-81-CX-6525 on the terms and conditions that the petitioner: (i) shall furnish a solvent surety of the amount equivalent to the price of the vehicle in question stated in the FIR / panchnama. (ii) shall file undertaking before the learned Trial Court that he shall not transfer / change the identity, color etc. of the vehicle till final disposal of the trial. (iii) shall produce the vehicle as and when directed by the learned Trial Court. (iv) if in future, any confiscation / auction proceedings under Section 98(2) of the Prohibition Act is initiated by the authority, in that event, the petitioner shall have to hand over / return the possession of the vehicle to the respondent authority and the petitioner shall file an undertaking to the said effect before the learned Magistrate; (v) in the event of any subsequent offence, the vehicle shall stand confiscated; R/SCR.A/3907/2025 ORDER DATED: 24/06/2025 (vi) present order does not preclude the learned Magistrate / Authority from passing any order under Section 98(2) of the Prohibition Act to initiate confiscation proceeding or auction order of vehicle. 10. Before release of the vehicle, concerned police authority shall take photographs / identity of the vehicle from all sides at the cost of the petitioner and shall draw necessary panchanama to that effect. Said panchanama and photographs shall be part of charge sheet papers for the purpose of trial. 11. The petitioner is a finance company and if any auction proceeding is initiated pursuant to the vehicle by the petitioner, the auction amount shall have to be deposited before the learned Magistrate, and the learned Magistrate has to pass the final order in this regard. 11.1 A copy of this order be send to concerned RTO, where the vehicle is registered, for necessary entry in the Register and to take notice that this Court has restrained transfer of vehicle till final disposal of the trial. Such transfer or return of the auctioned amount to the petitioner-company shall be subject to any order that may be passed by the learned Trial Court permitting transfer of vehicle. 12. Rule is made absolute accordingly. Direct service is permitted. (HASMUKH D. SUTHAR, J.) Ajay Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 24/06/2025 18:03:09