SCR.A/2406/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2406 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 ? ====================================== == STATE OF GUJARAT Versus ANUP VITTHALBHAI SHAH ====================================== == Appearance : MR IM PANDYA APP for the Applicant MR BS PATEL for the Respondent ====================================== == CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 07/02/2008 SCR.A/2406/2007 2/8 JUDGMENT ORAL JUDGMENT 1. Rule. Mr. B.S. Patel, learned advocate waives service of notice of rule on behalf of respondent No.2. 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner, State of Gujarat has challenged the judgment and order dated 3rd December, 2007 passed by the learned Presiding Officer and Fast Track Court No.12, Vadodara in Criminal Revision Application No.271 of 2007, whereby the learned Judge has allowed the revision application filed by the respondent herein by setting aside the order dated 12th October, 2007 passed by the learned Judicial Magistrate First Class, Vadodara and has directed that the custody of the muddamal jaggery be handed over to the respondent herein and has further granted him permission to dispose it of as may be deemed proper. 3. The facts stated briefly are that pursuant to a raid carried out in the godown of the respondent herein, jaggery stated to be rotten jaggery was seized and the First Information Report being Panigate Police Station, III – Crime Register No.657/07 came to be registered against the respondent and other persons. 4. Subsequently, the respondent moved an application under section 451 of the Code of Criminal Procedure, 1973 (the Code) before the learned Judicial Magistrate First Class, Vadodara seeking custody of the muddamal in question. By an order dated 12th October, 2007, the SCR.A/2406/2007 3/8 JUDGMENT learned Judicial Magistrate rejected the application and directed the Investigating Officer to preserve a sample of the rotten jaggery and destroy the remaining stock of jaggery. Being aggrieved, the respondent herein filed a revision application under the provisions of section 397 of the Code, which came to be allowed by the impugned order dated 3rd December, 2007 as noted hereinabove. 5. Heard Mr. I.M. Pandya, learned Additional Public Prosecutor appearing for the petitioner-State and Mr. B.S. Patel, learned advocate for the respondent. 6. Mr. I.M. Pandya, learned Additional Public Prosecutor has assailed the impugned order passed by the learned Fast Track Judge. It is submitted that the FSL report in relation to the muddamal in question very categorically mentions that the jaggery is rotten and therefore, the same cannot be said to be an edible substance. It is further submitted that rotten jaggery is a prohibited substance and therefore, in view of the provisions of the Bombay Prohibition Act (the Act), the same could not have been lawfully possessed by anybody. It was submitted that in the circumstances, the muddamal in question being a prohibited substance, the learned Judicial Magistrate had rightly directed that the said muddamal be destroyed to avoid any further misuse of the same and that the learned Fast Track Judge had erred in permitting the respondent to dispose of the same. 7. On the other hand, Mr. B.S. Patel, learned advocate for the respondent has defended the impugned order passed SCR.A/2406/2007 4/8 JUDGMENT by the Fast Track Court. The learned advocate has submitted that if at all the jaggery is found to be rotten and is certified as not fit for human consumption, the petitioner would sell it with specific instructions that the same is for cattle feed. It is further submitted that a detailed list shall be maintained which will be submitted to the police authority and if the police authority finds anyone connected with bootlegging activity, the respondent will not sell the jaggery to the said party. It is submitted that in any event, the jaggery, which is lying in the godown, is required to be released and the petitioner is required to be permitted to dispose of the same. 8. It is the specific case of the petitioner that the muddamal in question falls within the purview of the definition of “Prohibited Substance” as envisaged under section 2(39) (a) of the Act. In these circumstances, this Court is of the view that the respondent cannot be permitted to have custody of the muddamal goods and sell the same within the territory of the State of Gujarat. 9. At this stage, the learned advocate for the respondent has submitted that if the Court is not inclined to permit the respondent to dispose of the jaggery by way of cattle feed within the territory of the State of Gujarat, the respondent may be permitted to export the goods outside the territory of the State of Gujarat where the sale of the muddamal goods is not prohibited. Reliance is placed upon various decisions of this Court in the case of Kamal Traders, Pro. Riyazbhai Gulamkadar Vora V. State of Gujarat, Criminal Revision Application No.502 of 1998 SCR.A/2406/2007 5/8 JUDGMENT rendered on 30th September, 1998, in the case of 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 in the case of 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. 10.Considering the submissions advanced by the learned advocates for the parties and in the background of the facts noted hereinabove, it is an undisputed position that the respondent is the owner of the subject goods. It is also not disputed that the nature of the said 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-State as well as for the respondent. 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 respondent, 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 SCR.A/2406/2007 6/8 JUDGMENT 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. 11.In the instant case, the learned advocate for the respondent has made a statement to the effect that the respondent is ready and willing to take the custody of the muddamal jaggery outside the territory of the State of Gujarat to either of the following addresses:- 1. Nagraj Mallikarjun Birajdar Latur (Maharashtra) 2. Mahavir Trading Company Natepute (Maharashtra) 3. C.M.K. Trading Company Erode (Tamilnadu) 12.For the foregoing reasons, this Court is of the view that it would be just and proper to allow the respondent to take custody of the muddamal jaggery on appropriate terms and conditions so as to prevent financial loss to the respondent and at the same time, protect the interest of the petitioner State. 13.In the result, the petition partly succeeds. The impugned order dated 3rd December, 2007 passed by the learned Presiding Officer and Fast Track Court No.12, Vadodara in Criminal Revision Application No.271 of 2007 is quashed SCR.A/2406/2007 7/8 JUDGMENT and set aside to the extent the same allows the respondent to dispose of the rotten jaggery in any manner as he deems fit. The Court of the JMFC, Vadodara is directed to deliver the custody of the muddamal jaggery to the respondent on the following terms and conditions; (a)The respondent shall file an undertaking before the trial Court that he shall also 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 either of the addresses stated hereunder. 1. Nagraj Mallikarjun Birajdar Latur (Maharashtra) 2. Mahavir Trading Company Natepute (Maharashtra) 3. C.M.K. Trading Company Erode (Tamilnadu) (b)The respondent shall execute a Bond for Rs.1,50,000/- (rupees one lac fifty thousand) and shall furnish a 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 respondent shall not take objection during the trial arising from the First Information Report being Panigate Police Station, III – Crime Register No.657/07 that the muddamal article is not produced before the Court. (d)The respondent 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 SCR.A/2406/2007 8/8 JUDGMENT the same for lawful purposes. (e)The custody of the muddamal jaggery shall be handed over to the respondent on the abovestated conditions after taking necessary sample in appropriate condition. 14.The trial Court shall hand over the custody of the muddamal jaggery to the respondent 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. 15.The respondent is permitted to take direct service. (H.N.DEVANI, J.) shekhar/-