Full Judgment Text
REPORTABLE
2024 INSC 285
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1547 OF 2024
KHENGARBHAI LAKHABHAI DAMBHALA …APPELLANT(S)
VERSUS
THE STATE OF GUJARAT …RESPONDENT(S)
J U D G M E N T
BELA M. TRIVEDI, J.
1. The appellant, claiming to be the owner of the vehicle being Eicher
10.80 (Blue) bearing no. GJ 05-BT-0899, seized as Muddamal Article
in connection with the FIR bearing Criminal
No.11200038231465/2023, for the offence Under Section 65-
(a)(e),81,98(2),116(2) of Gujarat Prohibition Act and U/s 465, 468,
471, 114 of IPC registered with the Pardi Police Station, District
Valasad, had filed the Special Criminal Application No.6465 of 2023
before the High Court of Gujarat at Ahmedabad seeking release of
the said vehicle. The said Application having been dismissed by the
Signature Not Verified
Digitally signed by
RAVI ARORA
Date: 2024.04.08
18:04:57 IST
Reason:
High Court vide the impugned order dated 08.06.2023, the present
Appeal has been filed.
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2. In the instant case, it appears that the police personnel when they
were on patrolling duty had intercepted the vehicle in question on the
basis of a secret information received by them. It was alleged that the
driver of the said vehicle was carrying English Liquor (1240.200 litres)
worth of rupees 7 lakhs in the said vehicle without any pass or permit.
The said vehicle along with the liquor was seized and the aforestated
FIR was registered against the accused Lakhabhai Khengarbhai (the
son of the present appellant), and others on 29.04.2023 at the Police
Station Pardi, Valasad.
3. The respondent – State of Gujarat by filing the counter-affidavit has
contented inter alia that Section 98 (2) of the Gujarat Prohibition Act
1949 (hereinafter referred to as the said ‘Act’) forbids the release of
such vehicle till the final judgment of the Court, where the quantity of
seized liquor is exceeding the quantity prescribed by the Rules. In the
instant case, the seized quantity of liquor was 1240 litres as against
the prescribed quantity of 20 litres as per the Notification dated
02.07.2019, and hence the said vehicle was liable for the confiscation
and could not be released on bond or surety till the final judgment of
the court.
4. At the outset, it may be noted that Chapter XXXIV of
Cr.P.C deals with the disposal of the property. Section 451 thereof
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pertains to the order to be passed by the Criminal Court for custody
and disposal of the property produced before the court pending an
inquiry or trial, whereas Section 452 pertains to the order to be
passed for the disposal or confiscation of the property at the
conclusion of the trial. Section 451 reads as under: -
“ 451. Order for custody and disposal of property pending trial
in certain cases. —
When any property is produced before any Criminal Court during
any inquiry or trial, the Court may make such order as it thinks fit
for the proper custody of such property pending the conclusion of
the inquiry or trial, and, if the property is subject to speedy and
natural decay, or if it is otherwise expedient so to do, the Court may,
after recording such evidence as it thinks necessary, order it to be
sold or otherwise disposed of.
Explanation. —For the purposes of this section, “property”
includes—
(a) property of any kind or document which is produced before the
Court or which is in its custody;
(b) any property regarding which an offence appears to have been
committed or which appears to have been used for the commission
of any offence.”
5. From the bare reading of the aforesaid provision, it clearly transpires
that when any property is produced before any criminal court during
the course of inquiry or trial, the Court is required to make such order
as it thinks fit for the proper custody of such property pending the
conclusion of the inquiry or the trial. If the property is subject to
speedy and natural decay, or if it is otherwise expedient so to do,
the Court may after recording such evidence as it thinks necessary,
order it to be sold or otherwise disposed of. Thus, it is the criminal
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court, before whom the property in question is sought to be
produced, would have the jurisdiction and the power to pass
appropriate orders for the proper custody of such property or for
selling or disposing of such property, having regard to the nature of
the property in question, after recording the evidence in that regard.
6. In the instant case, the appellant without approaching the concerned
court under Section 451, Cr.P.C, directly approached the High Court
by filing Special Criminal Application under Article 226/227 of the
Constitution of India, which could not be said to be the proper course
of action for getting the custody of the property i.e. the vehicle in
question in this case. When there is a specific statutory provision
contained in the Cr.P.C. empowering the criminal court to pass
appropriate order for the proper custody and disposal of the property
pending the inquiry or trial, the appellant could not have invoked the
extraordinary jurisdiction of the High Court under Article 226 of the
Constitution of India seeking release of his vehicle.
7. The respondent State has also raised the contention that Section
98(2) of the said Act puts an embargo against release of the vehicle
till the final judgment of the court if the quantity of seized liquor is
more than the prescribed quantity. Since, such contention is often
raised, we deem it necessary to deal with the provisions contained in
Section 98 of the Act also. Section 98 reads as under: -
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“ 98. Things liable to confiscation- (1) Whenever any offence
punishable under this Act has been committed,
(a) any intoxicant, hemp, mhowra flowers, molasses, materials,
still, utensil, implement or apparatus in respect of which the offence
has been committed,
(b) where, in the case of an offence involving illegal possession, the
offender has in his lawful possession any intoxicant, hemp, mhowra
flowers or molasses other than those in respect of which an offence
under this Act has been committed, the entire stock of such
intoxicant, hemp, mhowra flowers, or molasses,
(c) where, in the case of an offence of illegal import, export or
transport, the offender has attempted to import, export or transport
any intoxicant, hemp, mhowra flowers or molasses, in
contravention of the provisions of this Act, rule, regulation or order
or in breach of a condition of a licence, permit, pass or
authorization, the whole quantity of such intoxicant, hemp, mhowra
flowers or molasses which he has attempted to import, export or
transport,
(d) where, in the case of an offence of illegal sale, the offender has
in his lawful possession any intoxicant, hemp, mhowra flowers or
molasses other than that in respect of which an offence has been
committed, the whole of such other intoxicant, hemp, mhowra
flowers or molasses, shall be confiscated by the order of the Court.
(2) Any receptacle, package or covering in which any of the articles
liable to confiscation under sub-section (1) is found and the other
contents of such receptacle, package or covering and the animals,
carts, vessels or other conveyances used in, carrying any such
article shall like-wise be liable to confiscation by the order of the
Court. [ but it shall not be released on bond or surety till the final
judgement of the Court where the quantity of the seized liquor is
exceeding the quantity as may be prescribed by the rules.]”
8. Sub-section (1) of Section 98 deals with the articles liable to
confiscation, whenever any offence punishable under the Act has
been committed. However, sub-section (2) of Section 98 is in two
parts. The first part upto the conjunctive word “but”, states about the
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confiscation of the articles like receptacle, package or covering and
about the confiscation of the animals, carts, vessels or any other
conveyances used in carrying any such article, and the second part
starting with the conjunctive word “but” is perceived to be an embargo
against release of the conveyance used for carrying the article liable
to be confiscated if the quantity of the seized liquor carried in such
conveyance is more than the prescribed quantity, till the final
judgment of the court. It may be noted that the second part of sub-
section (2) of Section 98 was incorporated by the Gujarat Act 29 of
2011. However, in our opinion, this incorporation of the second part
by amendment in 2011 is not very happily worded, and therefore, it
is seen as an embargo.
9. When the conjunction “but” is used in a provision, after the
punctuation mark “comma”, it is deemed that such conjunction is
used to carve out an exception or proviso to the main provision.
Meaning thereby, when the entire provision is divided into two parts
by using the punctuation mark “comma” followed by the conjunctive
word “but”, the second part is required to be construed as an
exception or proviso to the first part. However, so far as sub-section
(2) of Section 98 is concerned though it is in two parts connected with
the conjunctive word “but”, there is hardly any co-relation between
the first part and the second part thereof. It is difficult to comprehend
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the second part of sub-section (2) as an exception or proviso to the
first part thereof. Since it is not happily worded, applying the doctrine
of harmonious construction, we will have to harmonise the provisions
contained therein with the other provisions of the Act and with the
provisions contained in the Cr.P.C.
10. It is pertinent to note that the words “confiscation” or “seizure” are not
defined either in the said Act or in the Cr.P.C. As per the Black’s Law
th
Dictionary in the 11 Edition, the word “confiscation” means seizure
of property for the public treasury or seizure of property by actual or
supposed authority, and the word “seizure” means an act or an
instance of taking possession of a person or property by legal right or
process. Having regard to the said meanings, it is clear that “seizure”
would be a preliminary step that would lead to confiscation of an
article seized. The power to seize an article may be exercised by the
statutory authorities like police personnel, prohibition officers,
revenue authorities etc. in accordance with the concerned Statutes,
whereas the power of confiscation is normally exercised by the
jurisdictional Courts in accordance with the provisions of the
concerned Statutes.
11. Coming back to the Gujarat Prohibition Act, provisions with regard to
the articles liable to be confiscated and the powers of the court to
confiscate such articles have been incorporated in Section 98,
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whereas the powers of the authorised Prohibition Officer or police
officer to arrest the offender and seize the contraband articles are
contained in Section 123, followed by other provisions with regard to
the procedure to be followed after the seizure of the articles as
contained in Section 132 of the said act.
12. Section 132 reads as under: -
“ 132. Article seized - [When anything has been seized, under the
provisions of this Act by a Prohibition Officer exercising powers
under section 129 or by an Officer in-charge of a Police Station], or
has been sent to him in accordance with the provisions of this Act,
such officer, after such inquiry as may be deemed necessary, —
(a) if it appears that such thing is required as evidence in the case
of any person arrested, shall forward it to the Magistrate to whom
such person is forwarded or for his appearance before whom bail
has been taken,
(b) if it appears that such thing is liable to confiscation but is not
required as evidence as aforesaid, shall send it with a full report of
the particulars of seizure to the Collector,
(c) if no offence appears to have been committed shall return it to
the person from whose possession it was taken.”
13. As could be seen from the bare reading of Section 132, the
authorised Prohibition Officer or the officer in charge of Police Station
may after such inquiry as may be necessary either (a) forward the
article seized to the jurisdictional Magistrate where the person
arrested is forwarded, if it appears to him that such seized article is
required as an evidence; or (b) send the seized article to the collector
with the full report, if it appears to him that such seized article is liable
to confiscation but is not required as an evidence; or (c) return such
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seized article to the person from whose possession it was taken, if no
offence appears to have been committed.
14. Thus, on the conjoint reading of the provisions contained in Section
98 and 132 of the said Act and of Section 451 Cr.PC, it is discernible
that all these provisions operate in different fields. Section 98 deals
with the Confiscation of the Articles whenever any offence punishable
under the Act has been committed. The second part of sub-section
(2) thereof would come into play when the Prohibition Officer or Police
Officer sends the seized article liable to be confiscated but not
required as an evidence, to the Collector as per Clause (b) of Section
132. However, Section 451 of the Cr.P.C. would come into play when
the article property seized during the course of inquiry or investigation
is produced before the jurisdictional Court as per Clause (a) of
Section 132 and the Court is called upon to pass appropriate orders
for the proper custody of such article/property pending the conclusion
of the inquiry or the trial.
15. So far as the facts of this case are concerned, the vehicle in question
appears to have been seized as it was allegedly carrying huge
quantity of liquor exceeding the prescribed quantity. However, there
is nothing on record to suggest as to whether the said vehicle was
sought to be produced before the concerned court so as to invoke
Section 451 of Cr.P.C or whether such vehicle was forwarded by the
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police officer to the concerned Magistrate as contemplated in Clause
(a) of Section 132 of the said Act. In absence of any such factual
material placed on record, it is difficult to release the vehicle in
question in favour of the appellant.
16. It is true that when the property/vehicle is seized during the course of
investigation and the same is produced before the concerned
Criminal Court, it is incumbent on the part of the concerned Court to
pass appropriate orders for keeping the vehicle in proper custody
pending the trial. It is also true that as held by this Court in case of
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Sunderbhai Ambalal Desai vs. State of Gujarat , it is of no use to
keep the seized vehicles at the police stations for a long period and
it is for the magistrate to pass appropriate orders for the proper
custody of the said such vehicles during the pendency of the trial.
However, as observed earlier, the appellant without approaching the
concerned criminal court under Section 451 of the Cr.P.C seeking
custody of the vehicle in question, directly approached the High Court
by filing Special Criminal Application under Article 226/227 of the
Constitution of India, which was not the proper course as adopted by
the appellant.
1
( 2002) 10 SCC 283
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17. In that view of the matter, the present Appeal deserves to be
dismissed and is hereby dismissed. It is however clarified that it shall
be open for the Appellant to approach the concerned Court where the
property/vehicle in question is sought to be produced during the
course of inquiry or trial.
18. The Appeal stands dismissed accordingly.
…………………………………J.
[BELA M. TRIVEDI]
…………..……………………. J.
[PANKAJ MITHAL]
NEW DELHI;
th
08 APRIL, 2024.
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