DIVYESH MALDE KANARA vs STATE OF GUJARAT

Court
Gujarat High Court

R/SCR.A/12864/2026 JUDGMENT DATED: 06/11/2026
(GJHC240659082026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF
MUDDAMAL) NO. 12864 of 2026
=====================================================
DIVYESH MALDE KANARA
Versus
STATE OF GUJARAT
=====================================================
Appearance:
MR VISHVARAJSINH D VAGHELA(13666) for Applicant(s) No. 1
MR UTKARSH SHARMA, APP for the Respondent(s) No. 1
=====================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 06/11/2026
JUDGMENT
1. 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 497 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to
release Muddamal Vehicle i.e Tata Ace BS2 bearing RTO
registration No. GJ-03-AV-8060.
2. It is a case where the vehicle was was kept idle in the
premises, has been seized by the Investigating Officer in a
Janvajog Entry related to keeping prohibited goods in the vehicle
in question.
3. Heard learned advocate for the petitioner and learned APP
for the respondent.
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R/SCR.A/12864/2026 JUDGMENT DATED: 06/11/2026
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4. Learned advocate for the petitioner has urged that this
Court has wide powers, while exercising such 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', AIR 2003 SC 638 , wherein, the
Apex Court lamented the scenario of number of vehicles having
been kept unattended and becoming junk within the police
station premises.
5. Learned APP for the respondent has objected the
submissions made by learned advocate for the petitioner in view
of the provisions of confiscation of the vehicle contained in the
Prohibition Act, however, did not dispute that 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.
6. The coordinate bench of this Court in the case of Musa
Khan Jat Vs. State of Gujarat (SCR.A/7190/2017) , in an
identical case, released the vehicle by exercising the power under
Articles 226 and 227 of the Constitution of India.
7. It would be worthwhile to refer profitably at this stage to
the observations made by the Apex Court in 'SUNDERBHAI
AMBALAL DESAI VS. STATE OF GUJARAT' (Supra) , which
read as under:
"15. Learned senior counsel Mr. Dholakia, appearing for the
State of Gujarat further submitted that at present in the
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R/SCR.A/12864/2026 JUDGMENT DATED: 06/11/2026
(GJHC240659082026)
police station premises, number of vehicles are kept
unattended and vehicles become junk day by day. It is his
contention that appropriate directions should be given to the
Magistrates who are dealing with such questions to hand
over such vehicles to its owner or to the person from whom
the said vehicles are seized by taking appropriate bond and
the guarantee for the return of the said vehicles if required
by the Court at any point of time.
16. However, the learned counsel appearing for the
petitioners submitted that this question of handing over
vehicles to the person from whom it is seized or to its true
owner is always a matter of litigation and a lot of arguments
are advanced by the concerned persons.
17. In our view, whatever be the situation, it is of no use to
keep such seized vehicles at the police stations for a long
period. It is for the Magistrate to pass appropriate orders
immediately by taking appropriate bond and guarantee as
well as security for return of the said vehicles, if required at
any point of time. This can be done pending hearing of
applications for return of such vehicles."
8. Recently, the Hon’ble Apex Court in case of M/s ABC
Express Vs. State of Gujarat, 2026 LiveLaw (SC) 885 noticed
interplay of section 451 of the Code of Criminal Procedure, 1973
(section 497 of BNSS) and section 98 of the Gujarat Prohibition
Act, 1949 and held that section 98(2) of the Gujarat Prohibition
Act, 1949 does not operate as an absolute embargo against the
release of a seized vehicle on interim custody pending trial. It is
further observed by the Hon’ble Apex Court that the Court is
competent to exercise powers u/s 451 of the Code to pass
appropriate order for its proper custody.
9. Resultantly, this petition is allowed.
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R/SCR.A/12864/2026 JUDGMENT DATED: 06/11/2026
(GJHC240659082026)
10. The learned Trial Court / authority concerned is directed
to release the vehicle of the petitioner being Tata Ace BS2
bearing RTO registration No. GJ-03-AV-8060 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.
(ii) shall file undertaking before the learned Trial Court that
he shall not transfer the vehicle till final disposal of the
trial.
(iii) shall produce the vehicle as and when directed by the
learned Trial Court.
(iv) in the event of any subsequent offence, the vehicle shall
stand confiscated.
11. Before release of the vehicle, concerned police authority
shall take photographs 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.
12. 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 shall be subject to any
order that may be passed by the learned Trial Court permitting
transfer of vehicle.
13. Rule is made absolute, accordingly.
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14. Considering the fact that the vehicle was idle at the time of
seizure, the vehicle is released, but the matter is kept for the
limited purpose of getting the Report from the concerned
Investigating Officer in regards to the Janvajog entry. Matter is
also placed for the notice of the concerned Dy.S.P.
Stand over to 07.12.2026 . Direct service is permitted.
(J.C. DOSHI, J.)
Raj
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