* Author
[2024] 4 S.C.R. 606 : 2024 INSC 285
Khengarbhai Lakhabhai Dambhala
v.
The State of Gujarat
(Criminal Appeal No. 1547 of 2024)
08 April 2024
[Bela M. Trivedi* and Pankaj Mithal, JJ.]
Issue for Consideration
Appellant’s vehicle was seized under the Gujarat Prohibition
Act, 1949 as the driver of the vehicle was found carrying liquor
beyond permissible limit. Appellant approached the High Court by
filing Special Criminal Application under Articles 226/227 of the
Constitution seeking release of the seized vehicle, without first
approaching concerned court under Section 451 CrPC. Whether
High Court was justified in dismissing the Special Criminal
Application filed by the Appellant under Article 226/227 of the
Constitution of India.
Headnotes
Directly invoking writ jurisdiction of High Court for release of
seized property – Propriety of:
Held: The criminal 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 – 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 – 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
[2024] 4 S.C.R. 607
Khengarbhai Lakhabhai Dambhala v. The State of Gujarat
seeking release of his vehicle – 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 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. [Paras 5,6,15 and 16]
Use of conjunction “but” in a provision – Implication of:
Held: 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. [Para 9]
“Confiscation” and “seizure” – Meaning of:
Held: As per the Black’s Law Dictionary in the 11th 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. [Para 10]
Sections 98 and 132 of the Gujarat Prohibition Act, 1949 and
Section 451 of CrPC operate in different fields:
Held: On the conjoint reading of the provisions contained in
Section 98 and 132 of the Gujarat Prohibition Act, 1949 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
608 [2024] 4 S.C.R.
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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.
[Paras 9 and 14]
Case Law Cited
Sunderbhai Ambalal Desai v. State of Gujarat [2002]
Supp. 3 SCR 39 : (2002) 10 SCC 283 – referred to.
List of Acts
Constitution of India; Code of Criminal Procedure,1973; Gujarat
Prohibition Act, 1949, Indian Penal Code, 1860.
List of Keywords
Articles 226/227 of Constitution of India; Section 451 of Cr.P.C;
Gujarat Prohibition Act, 1949; Specific statutory provision; Seizure
and confiscation of property; Mudammal article; Implication of the
word “but”; Harmonious construction.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1547
of 2024
From the Judgment and Order dated 08.06.2023 of the High Court
of Gujarat at Ahmedabad in SCRA No. 6465 of 2023
Appearances for Parties
Ms. Disha Singh, Shivendu Gaur, Mrs. Nidhi Sharma, Mohit,
Madhusudan Singh, Advs. for the Appellant.
Parshant Bhagwati, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Ms.
Neha Singh, Advs. for the Respondent.
[2024] 4 S.C.R. 609
Khengarbhai Lakhabhai Dambhala v. The State of Gujarat
Judgment / Order of the Supreme Court
Judgment
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
High Court vide the impugned order dated 08.06.2023, the present
Appeal has been filed.
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 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
610 [2024] 4 S.C.R.
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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
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
[2024] 4 S.C.R. 611
Khengarbhai Lakhabhai Dambhala v. The State of Gujarat
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: -
“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,
612 [2024] 4 S.C.R.
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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 likewise 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
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
[2024] 4 S.C.R. 613
Khengarbhai Lakhabhai Dambhala v. The State of Gujarat
the second part thereof. It is difficult to comprehend 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 Dictionary in the 11th 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,
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 incharge 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
614 [2024] 4 S.C.R.
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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
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
[2024] 4 S.C.R. 615
Khengarbhai Lakhabhai Dambhala v. The State of Gujarat
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 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
Sunderbhai Ambalal Desai vs. State of Gujarat1
, 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.
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.
Headnotes prepared by: Result of the case:
Adeeba Mujahid, Hony. Associate Editor Appeal dismissed.
(Verified by: Shadan Farasat, Adv.)
1 [2002] Supp. 3 SCR 39 : (2002) 10 SCC 283
