Gujarat HC Releases Owner’s Burgman In Liquor Case, Applying SC Ruling That Section 98(2) Is No Absolute Bar To Interim Release

The petitioner sought interim release of his Suzuki Burgman Street motorcycle, seized in connection with an FIR registered at Garbada Police Station for offences under Sections 65(e), 98(2) and 116-B of the Gujarat Prohibition Act, 1949.

His application for release was rejected by the JMFC, and his revision against that order was dismissed by the Sessions Court.

The petitioner contended that continued retention would cause the vehicle to deteriorate and produced a communication showing that the vehicle’s loan account with HDFC Bank had been closed.

He then invoked Articles 21 and 226 of the Constitution and Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Section 497 of the Bharatiya Nagarik Suraksha Sanhita, 2023, concerning interim custody of property, was invoked by the petitioner; the Court also referred to the corresponding power under Section 451 of the Code of Criminal Procedure, 1973.

In Sunderbhai Ambalal Desai v. State of Gujarat, the Supreme Court held that seized vehicles should not be left to deteriorate in police custody and that courts may release them on suitable bonds, guarantees and security, while ensuring their return if required.

The Court further relied on M/s ABC Express v. State of Gujarat, which it described as holding that Section 98(2) of the Gujarat Prohibition Act does not impose an absolute bar on interim release of a seized vehicle pending trial.

It also noted the coordinate Bench decision in Musa Khan Jat v. State of Gujarat, in which a vehicle was released under Articles 226 and 227 of the Constitution.

The petitioner was the registered owner of the seized motorcycle, and the Court considered the risk that continued retention would cause it to deteriorate.

Applying the principles in Sunderbhai Ambalal Desai and the stated holding in M/s ABC Express, the Court concluded that the confiscation provisions did not prevent interim release subject to appropriate safeguards.

It therefore ordered release on conditions requiring a solvent surety equivalent to the vehicle’s price stated in the FIR, an undertaking not to transfer the vehicle pending trial, and production of the vehicle when directed.

Before release, the police must photograph the vehicle from all sides and prepare a panchnama, with both included in the charge-sheet papers.

The order must also be sent to the concerned RTO to record the restraint on transfer pending trial, subject to any later order of the Trial Court permitting transfer.