R/SCR.A/4964/2025 ORDER DATED: 01/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL) NO. 4964 of 2025 ========================================================== HIRANATH JAFARNATH MADARI Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR ABHISHEK A JOSHI(6768) for the Applicant(s) No. 1 NOTICE SERVED for the Respondent(s) No. 2 MS SHRUTI PATHAK, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 01/07/2025 ORAL ORDER RULE. Learned APP waives notice of rule for and on behalf of the respondents. [1.0] The petitioner 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 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) [section 482 of the Code of Criminal Procedure, 1973] with a prayer to release Muddamal cash of Rs.90,000/- which has been seized during the raid. [2.0] The case of the prosecution is that while the police personnel were on patrolling, they caught red handed the present petitioner who was in drunken condition and Rs.90,000/- were recovered from his person and on being asked as to from where the said cash was received, the petitioner was not in a position to reply. Therefore, an FIR being C.R. No.11188007240576 of 2024 came to be registered with Meghraj Police Station, District Aravalli for the oGence punishable under the Prohibition Act. Page 1 of 3 R/SCR.A/4964/2025 ORDER DATED: 01/07/2025 [3.0] Heard learned advocate for the petitioner and learned APP for the respondents. [4.0] 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. [5.0] 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 however, this is not a Ht case to exercise the jurisdiction and hence, requested to dismiss the petition. [6.0] Heard learned advocates appearing for the respective parties. [7.0] As per the allegations levelled in the complaint, muddamal cash of Rs.90,000/- was seized during physical search of the petitioner as he was in drunken condition. The petitioner approached the learned Magistrate as well as Revisional Court for release of the said muddamal and both the Courts below rejected the applications of the petitioner for release of muddamal cash and hence, present petition is Hled. [7.1] Perusing the record it appears that there is not an iota of evidence which suggests that the muddamal cash of Rs.90,000/- came to be seized in connection of alleged oGence under the Prohibition Act. It is not coming on record as to from where the said cash was received by the petitioner from illegal transaction of sale of contraband liquor prohibited under the Prohibition Act. Merely because the petitioner failed to give explanation about the said cash would not lead to presumption that the said muddamal cash has been received by selling the contraband liquor. Even otherwise, R/SCR.A/4964/2025 ORDER DATED: 01/07/2025 only allegation is that the petitioner was found in drunken condition. Hence, keeping in mind the law laid down by the Hon’ble Supreme 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. [8.0] Resultantly, this petition is allowed. [9.0] The learned Trial Court / authority concerned is directed to release / hand over the muddamal cash of Rs.90,000/- to the petitioner on condition that the petitioner shall furnish a solvent surety or Bank Guarantee of the like amount i.e. Rs.90,000/-; [10.0] With above direction, present petition is disposed of. 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 01/07/2025 18:48:55