KHENGARBHAI LAKHABHAI DAMBHALAversusTHE STATE OF GUJARAT

                 [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


* Author
[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
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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
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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 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
       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 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
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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