SCR.A/2465/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2465 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================== VINODKUMAR SUNDERLAL BHOJANI - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================= Appearance : MR MAHENDRA K PATEL for Applicant(s) : 1, MR. IM PANDYA, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================== CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 15/02/2008 ORAL JUDGMENT 1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 14th December, 2007 passed by the learned Additional Sessions Judge, Fast Track Court, Patan in SCR.A/2465/2007 2/8 JUDGMENT Criminal Revision Application No.88 of 2007, whereby the learned Judge has rejected the Revision Application filed by the petitioner challenging the order dated 30th November, 2007 passed by the learned Judicial Magistrate First Class, Siddhpur, rejecting the petitioner's application under Section 451 of the Code of Criminal Procedure (the Code). 2. The facts of the case stated briefly are that the petitioner is carrying on the business of selling food grains and jaggery etc. on wholesale basis. Pursuant to the raid carried on the business premises of the petitioner, a First Information Report being Siddhpur Police Station Prohibition C.R. No.235/2007 came to be registered against the petitioner for the offences under Sections 70A of the Bombay Prohibition Act, 1949 (the Prohibition Act). Pursuant to the said raid, the godown of the petitioner was sealed along with the muddamal jaggery. As the petitioner was unable to carry on his business in view of the seal applied by the concerned police, the petitioner moved an application being Miscellaneous Criminal Application No.185 of 2007 before the learned Judicial Magistrate First Class, Siddhpur under the provisions of Section 451 of the Code for release of the muddamal being 2,222 kilos jaggery which was lying in the godown sealed by the police. By the impugned order dated 30th October, 2007, the learned Judicial Magistrate rejected the petitioner's application. The petitioner carried the matter in revision before the learned Additional Sessions Judge, Patan by way of Criminal Revision Application No.88 of 2007, who by the impugned order dated 4th SCR.A/2465/2007 3/8 JUDGMENT December, 2007, rejected the revision application and confirmed the order passed by the learned Judicial Magistrate. Being aggrieved, the petitioner has filed the present petition challenging the said orders. 3. Heard Mr.Mahendra K.Patel, learned advocate for the petitioner and Mr.I.M.Pandya, learned Additional Public Prosecutor on behalf of respondent – State of Gujarat. 4. Learned advocate for the petitioner has submitted that the Courts below have erred in coming to the conclusion that the petitioner is likely to use the stock of jaggery for manufacture of liquor. It is submitted that the stock of jaggery was edible and was in fact meant for sale to persons involved in animal husbandry. It is further submitted that the Courts below have failed to appreciate that, as the stock of jaggery is lying in the godown, due to lapse of time, there are all chances that the muddamal will get deteriorated causing immense loss to the petitioner. It is submitted the Supreme Court has, in similar cases, directed release of muddamal on suitable terms and conditions. It is, accordingly, prayed that the muddamal be released by imposing suitable conditions as may be deemed fit. 5. The learned advocate for the petitioner has also drawn the attention of the Court to the fact that, in a number of cases, this Court has directed that the custody of the muddamal jaggery be handed over on condition that the same shall not be stored or used within the territory of the State of Gujarat and shall be taken to its destination SCR.A/2465/2007 4/8 JUDGMENT outside the limits of the State of Gujarat. It is, accordingly, submitted that the petitioner is ready and willing to take the muddamal goods outside the State of Gujarat and dispose of the same outside the limits of the State of Gujarat, where sale of the muddamal jaggery is not prohibited. 6. On the other hand, Mr.I.M.Pandya, learned Additional Public Prosecutor has vehemently opposed the grant of any relief in favour of the petitioner. It is submitted that the muddamal in question falls within the purview of the definition of “prohibited substance” as envisaged under Section 2(39)(a) of the Prohibition Act. In the circumstances, the petitioner cannot be permitted to have custody of the muddamal goods and sell the same within the territory of the State of Gujarat. 7. This Court has considered the submissions advanced by the learned advocates for the parties and has perused the record of the case. This Court is of the view that, considering the fact that it is the specific case of the prosecution that the muddamal jaggery falls within the definition of prohibition substance as envisaged under Section 2(39)(a) of the Prohibition Act, the petitioner cannot be permitted to have the custody of the muddamal goods and sell the same within the territory of the State of Gujarat. However, insofar as the petitioner seeks release of the custody of the muddamal jaggery on condition to take the same outside the limits of the State of Gujarat, this Court is of the view that, in the light of the decisions of this Court upon which reliance has been SCR.A/2465/2007 5/8 JUDGMENT placed by the learned advocate for the petitioner, the grant of such relief can certainly be considered. 8. The learned advocate for the petitioner has placed reliance upon the following decisions of this Court : [1] Kamal Traders, Pro. Riyazbhai Gulamkadar Vora V. State of Gujarat, Criminal Revision Application No.502 of 1998 rendered on 30th September, 1998; [2] Rameshkumar Kimatray Sukhvani P.O.A. Holder of Pramodkumar V. State of Gujarat, Special Criminal Application No.410 of 2004 rendered on 7th May, 2004; and [3] Pavankumar Shivkumar Through His Power of Attorney V. State of Gujarat and another, Special Criminal Application No.850 of 2005 rendered on 22nd August, 2005; wherein this Court had permitted the custody of rotten jaggery to be handed over to the accused, subject to the condition that the same would be exported outside the territory of the State of Gujarat with an undertaking that the petitioner would not store or use or consume the said muddamal within the territory of the State of Gujarat. 9. In the facts of the present case, it is an undisputed position that the petitioner is the owner of the muddamal goods. It is also not disputed that the nature of the said SCR.A/2465/2007 6/8 JUDGMENT muddamal jaggery is such that by passage of time, it would continue to deteriorate and become useless. Pending the trial, if the goods are not sold or disposed of, the same would be rendered useless, both for the petitioner as well as for the respondent - State. This Court is therefore, of the view that it would be in the interest of justice if appropriate orders are passed so as to minimize the loss to the petitioner, subject to the provisions of the Bombay Prohibition Act. This Court in the decisions cited hereinabove, has expressed the view that under such circumstances, the party can be permitted to transport the subject goods outside the territory of the State of Gujarat subject to the condition that the party shall execute a Bond and give security to the satisfaction of the Court that the party shall produce the value of goods as and when called upon and shall not raise any contention during the trial that the muddamal is not before the Court. 10.In the instant case, the learned advocate for the petitioner has made a statement to the effect that the petitioner is ready and willing to take the custody of the muddamal jaggery outside the territory of the State of Gujarat to the following address:- “Messrs Agrawal Trading Co. Char Rasta, Main Bazar Muru Dungar Dist.Baswada Rajasthan” SCR.A/2465/2007 7/8 JUDGMENT 11.For the foregoing reasons, this Court is of the view that it would be just and proper to allow the petitioner to take custody of the muddamal jaggery on appropriate terms and conditions so as to prevent financial loss to the petitioner and at the same time, protect the interest of the respondent – State. 12.In the result, the petition partly succeeds. The impugned order dated 14th December, 2007 passed by the learned Additional Sessions Judge, Fast Track Court, Patan in Criminal Revision Application No.88 of 2007, is quashed and set aside to the extent the same allows the petitioner to dispose of the rotten jaggery in any manner as he deems fit. The Court of the JMFC, Siddhpur is directed to deliver the custody of the muddamal jaggery to the petitioner on the following terms and conditions; (a)The petitioner shall file an undertaking before the trial Court that he shall not store or permit the use of the same within the territory of the State of Gujarat and shall immediately arrange to transmit the same at the address stated hereunder. “Messrs Agrawal Trading Co. Char Rasta, Main Bazar Muru Dungar Dist.Baswada Rajasthan” (b)The petitioner shall execute a Bond for Rs.1,50,000/- (rupees one lac fifty thousand) and shall furnish a SCR.A/2465/2007 8/8 JUDGMENT security for the like amount to the satisfaction of the trial Court to fulfill the condition that value of the said muddamal article shall be produced before the Court as and when required and called upon to do so. (c)The petitioner shall not take objection during the trial arising from the First Information Report being Siddhpur Police Station, II – Crime Register No.235/2007 that the muddamal article is not produced before the Court. (d)The petitioner shall not use or permit the use of the muddamal goods for human consumption within the territory of the State of Gujarat and shall at all times use the same for lawful purposes. (e)The custody of the muddamal jaggery shall be handed over to the petitioner on the abovestated conditions after taking necessary sample in appropriate condition. 13.The trial Court shall hand over the custody of the muddamal jaggery to the petitioner subject to the above stated conditions within a period of one week from the receipt of a writ of this order. Rule is made absolute to the aforesaid extent. [HARSHA DEVANI, J.] parmar*