By way of this petition under Article 226 of the Constitution of India, the petitioner has, inter alia, prayed for the following main reliefs:
(a) YOUR LORDSHIPS may be pleased to set aside condition No.3(a) of the order dated 23.11.2012 of the learned Additional Sessions Judge, Panchmahals @ Godhra in Criminal Revision Application No.114 of 2012 as well as the order dated 4.12.2012 passed by the learned Additional Sessions Judge, Panchmahals @ Godhra in Criminal Misc. Application No.954 of 2012;
(b) During the pendency and final disposal of this application, YOUR LORDSHIPS may be pleased to order release of the Muddamal on any other appropriate terms and conditions as may be deemed fit by this Hon ble Court in the facts and circumstances of the case;
(c) xxx xxx xxx
(d) xxx xxx xxx The facts arising out of the present petition are as under:
The petitioner is engaged in the business of import of foreign liquor and his place of business is at Mumbai. It is a matter of fact that when the foreign liquor is imported into India and the same is transported to other places in India, necessary Export Pass has to be obtained from the Excise Department as well as necessary pass for the import of duty paid imported foreign liquor has also to be obtained. It is the case of the petitioner that the petitioner wanted to transport imported foreign liquor from New Delhi to Mumbai. That the import was for the benefit of certain hotels in Mumbai, for which the petitioner has obtained Export Pass from the Excise Department, describing the brand and quantity of the foreign liquor to be transported in the hotels, for whose benefit such imported liquor has been transported. That the petitioner had also obtained necessary pass for the import of the duty paid imported foreign liquor from the authorities in Mumbai under the provisions of the Bombay Prohibition Act, 1949 (the Act). That the petitioner has also raised necessary tax invoice for the quantity of the brand of liquor prescribed in the import pass. That the entire consignment described in the import and export pass as well as the invoices were handed over to Dixit Cargo Movers, New Delhi for delivery at Mumbai, for which the petitioner relies upon the consignment note issued by the said transporter (at Annexure-C to the petition). That the said transporter did not obtain any necessary pass required for transportation through the State of Gujarat and when the truck was passing through the territory of Gujarat, the authorities of the State of Gujarat found that, there is breach of Rule 10 of the Gujarat Through Transportation Rules, 1966 (the Rules) and, therefore, a complaint came to be registered under Section 65(a), (e) and 116B and Section 81 of the Act and an F.I.R. came to be lodged being C.R. No.III-240 of 2012 at Godhra Town B Division Police Station for the aforesaid offences. That in light of the aforesaid F.I.R. the goods i.e. the foreign liquor came to be seized as muddamal. As per the prosecution, the value of the goods comes to Rs.10,43,937.92/- being 7095 bottles of foreign liquor and beer.
The petitioner thereafter filed an application under Section 451 of the Code of Criminal Procedure, 1973 (the Code) for release/return of the aforesaid foreign liquor, which came to be seized as muddamal in the aforesaid proceedings. The said application came to be rejected by Chief Judicial Magistrate, Panchmahals @ Godhra vide order dated 01.11.2012. Against the said order, the petitioner preferred Criminal Revision Application No.114 of 2012 before Sessions Court at Godhra under Section 397 of the Code, which came to be allowed vide order dated 23.11.2012, wherein it has been observed at Paragraph No.9 as under:
9. Thus, going through the guidelines laid down in the above judgment, it transpires that the panchnama has been prepared and samples have also be taken and sent to the Chemical Analyzer, as such no purpose is served by storing of the muddamal at the police station and on the contrary the applicant shall suffer huge loss if the same is not handed over to them or even if the same gets damaged due to lack of storage facility at the police station. However, it appears that the Ld. Chief Judicial Magistrate, Godhra has committed error of law by rejecting the application, hence the impugned order is liable to be quashed and set aside. It is however pertinent to note that the applicant herein has neither claimed for the seized vehicle, nor has proved ownership of the said vehicle, hence no order is passed in terms of the seized vehicle, Eicher Tempo. As there is no dispute regarding the ownership of the muddamal claimed by the applicant being 7095 bottles of beer, wine and whisky, only the said muddamal has to be handed over to the applicant, subject to certain conditions. Under the circumstances, the revision deserves to be allowed and the following order is passed ORDER
1. The present revision application is allowed
2. The impugned order dated 01.11.2012, passed by the Ld. Chief Judicial Magistrate, Panchmahals, at Godhra is hereby quashed and set aside.
3. The applicant shall be handed over the possession of the muddamal being 7095 bottles of beer, wine & whisky only, seized under the offence registered before the Godhra Town B Division Police Station vide III C.R. No.240/12, on the following terms and conditions:
a) The applicant shall furnish bank guarantee of Rs.10,50,000/- (Rupees Ten Lacs Fifty Thousand only) before the Trial Court.
b) The applicant shall be handed over the possession of the above mentioned muddamal articles, only after obtaining excise escort pass from the concerned department, to cross the territory of Gujarat State.
c) The applicant shall file undertaking before the trial court to the effect that the muddamal articles shall not be stored, sold or used within the territory of the State of Gujarat and shall be immediately transmitted to its destination.
d) The applicant shall execute a bond for Rs.10,50,000/- (Rupees Ten Lacs Fifty Thousand only) and shall furnish a security to the satisfaction of the trial Court for the like amount to fulfill a condition that value of the said muddamal article shall be produced before the court, as and when required and called upon to produce.
e) The applicant shall furnish his present residence address proof before the trial Court and intimate the court as and when he changes residence.
Aggrieved by condition No.3-a) of the aforesaid order dated 23.11.2012, the petitioner filed Misc. Criminal Application No.954 of 2012 before District & Sessions Court, Panchmahals @ Godhra, which came to be rejected vide order dated 04.12.2012. Hence, the present petition mainly with the aforesaid prayers.
Heard Mr.R.S.Sanjanwala, learned Senior Counsel, with Mr.Dilip L. Kanojiya, learned advocate for the petitioner, and Ms.Moxa Thakkar, learned Assistant Public Prosecutor for the respondent-State.
Mr.R.S.Sanjanwala, learned Senior Counsel for the petitioner, has specifically invited attention of this Court to the fact that the foreign liquor, which is seized as muddamal, belongs to the petitioner and the same has been seized only because of technical error committed by Dixit Cargo Movers, New Delhi, which did not obtain import pass under Rule 10 of the Rules. It is further submitted that the condition to furnish bank guarantee imposed upon the petitioner is too harsh, who has acted bona fidely and who is not an accused of any offence. It is further pointed out that in fact the truck has been released but the goods belonging to the petitioner are ordered to be released on such stringent condition. It is further submitted that it is not the case of the prosecution at all that the seized goods were found to be transported and/or admitted to be used within the territory of the State of Gujarat but the documents on record clearly establish the fact that the goods were to be transported from New Delhi to Mumbai.
An affidavit of the petitioner dated 16.03.2013 is tendered before this Court, which is taken on record.
This Court (Coram: K.M.Thaker, J) vide order dated 28.02.2013 while admitting the matter has recorded a statement made by the learned Senior Counsel appearing for the petitioner to the effect that instead of bank guarantee the petitioner is ready and willing to offer security of immovable property. On the basis of the aforesaid affidavit dated 16.03.2012 of the petitioner, it is submitted that the petitioner owns Flat No.1701, Tower J, 17th Floor, In Ferrous Infrastructure residential tower at Faridabad, NCR, which, as per the valuation report of a government approved valuer annexed with the aforesaid affidavit, is amounting to Rs.52,95,000/- with a super area of being 1412 sq.ft. Attention was also invited to the statement made in the aforesaid affidavit whereby Gurinder Pal Singh Dhall, Director of Dhall Foods & Beverages Private Limited, has declared before this Court that the said property is not mortgaged or charged or encumbered in any manner whatsoever.
In view of the aforesaid fact and on the basis of the documents on record, it transpires that the foreign liquor, which is seized as muddamal, was to be transported from New Delhi to Mumbai.
Considering the provisions of Section 451 of the Code, the revisional court, relying upon the judgment of the Apex Court in the case of Sundarbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 SCC 283, has also recorded the fact that it appears from the transport bill of Dixit Cargo Movers, New Delhi that the consignment was to be transported from New Delhi to Mumbai. It is also recorded that the petitioner firm is a registered firm and possesses import licence as well as export pass obtained from the relevant Government Departments. However, it is a matter of fact that they have committed technical error by not obtaining the escort pass for transition of such prohibited articles through the territory of the State of Gujarat and considering such vital aspect, while allowing the revision application, the court has imposed the aforementioned conditions.
Cumulatively, considering the aforesaid fact therefore the petitioner is correct to the extent that condition No.3-a) of furnishing bank guarantee of Rs.10,50,000/- would be harsh upon the petitioner. Considering the aforesaid affidavit dated 16.03.2013 and the declaration made before this Court that the value of the aforesaid flat is being Rs.52,95,000/-, if the aforesaid condition No.3-a) is substituted by directing the petitioner to furnish security of immovable property of the aforesaid flat, the same would secure the ends of justice.
It is further clarified that while executing the order, as per the substituted condition No.3-a), as aforesaid, the petitioner shall adhere to all other conditions that are imposed by the revisional Court vide order dated 23.11.2012 i.e. condition Nos.3-b) to 3-e) as the same are not disturbed and/or modified in any manner.
In addition to the above, it is further clarified that before the muddamal is released the petitioner shall furnish the security in the form of an affidavit before the trial Court and the trial Court shall carry out panchnama of the goods so released. The petitioner shall furnish a certificate of authorities in Mumbai under the provisions of the Act about arrival of the goods in question, as it is provided in Form B (at Page 23 of the paper-book) before the trial Court, within a period of two weeks of their arrival at Mumbai.
In view of the above, the petition is allowed to the aforesaid extent. Condition No.3-a) imposed vide order dated 23.11.2012 by Additional Sessions Judge, Panchmahals @ Godhra in Criminal Revision Application No.114 of 2012 is hereby substituted to the effect that the petitioner shall furnish security of immovable property being Flat No.1701, Tower J, 17th Floor, In Ferrous Infrastructure residential tower at Faridabad, NCR, on a condition that the petitioner shall not mortgage or sell or change the status of the said flat in any manner whatsoever till the trial is over, without prior permission of the trial Court.
Rule is made to the aforesaid extent. Direct service permission.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 10 of 10 DIV>