Confiscation of Vehicles (Section 98)

Few provisions of the Gujarat Prohibition Act, 1949 bite the ordinary citizen as sharply as Section 98. A car or truck used to ferry contraband liquor is not merely a piece of evidence; it is property the State may permanently take away. Section 98 is the engine of that power, listing what is "liable to confiscation" and, after the 2024 amendment, even permitting confiscated vehicles to be auctioned before the criminal trial ends. This note maps the architecture of vehicle confiscation: what the section catches, who orders it, the bond embargo on release, the new auction regime, and the crucial gap that the Code of Criminal Procedure fills through Section 451. The owner of an innocent vehicle, and the lawyer advising one, must read Section 98 alongside the case law, because the statute alone tells only half the story.

What Section 98 makes liable to confiscation

Section 98 of the Act sets out an exhaustive catalogue of property that becomes "liable to confiscation" whenever an offence under the Act has been committed. The enumeration moves outward in concentric rings: first the contraband itself, the intoxicant, hemp, mhowra flowers, molasses or materials; then the still, utensils, implements and apparatus used in manufacture; then the receptacle, package or covering in which any of these is found; and finally, the ring most litigated, any animal, cart, vessel or other conveyance used in carrying the same. The phrase "other conveyance" is deliberately wide and captures cars, trucks, tankers, motorcycles, autorickshaws and boats. The unifying thread is a nexus between the article and the offence: the vehicle must have been used in carrying the prohibited goods, not merely have been present at the scene. This offence-linked trigger distinguishes confiscation from mere seizure, and it is the foundation on which every later question rests. A useful test in practice is to ask whether the conveyance was an instrument of the transport of contraband or merely incidental to it; only the former is caught. A passenger bus in which a single passenger happens to carry a hip-flask is not thereby "used in carrying" contraband in the offence sense, whereas a tanker fitted with a concealed cavity to ferry liquor plainly is. The wider the role the vehicle plays in the commission of the offence, the stronger the case for confiscation, and the harder it becomes for the owner to characterise the seizure as arbitrary.

Seizure is not confiscation

The single most important conceptual point is that seizure and confiscation are different stages. A Prohibition Officer or Police Officer who finds liquor in a vehicle seizes the vehicle on the spot; that is a preliminary, protective step taken under the search-and-seizure powers of the Act. Confiscation, by contrast, is the final divesting of title in favour of the State, and it follows only after the statutory machinery is set in motion. The Supreme Court underlined this very distinction in Khengarbhai Lakhabhai Dambhala v. State of Gujarat, 2024 SCC OnLine SC 512, holding that "seizure" is a step preceding confiscation under the Act. The practical consequence is large: while a vehicle is merely seized and the case is pending, its custody is governed by ordinary criminal procedure, whereas once confiscation is adjudged the property vests in the State. Confusing the two stages is the most common error in vehicle-release litigation. The distinction also explains why an order of seizure carries no finding of guilt: a vehicle may be seized on reasonable suspicion that contraband is being carried, but it cannot be confiscated unless the offence is ultimately established and the statutory authority so directs. For the owner, this means the seizure stage is the moment to act, because the longer the matter drifts the more the vehicle deteriorates and the harder restitution becomes. Treating seizure as a final loss surrenders rights that the law in fact preserves until the confiscation question is formally decided.

Who adjudges confiscation

Confiscation under the Act is not a power exercised casually by the seizing officer. Section 98 must be read with the adjudicatory and disposal provisions of the statute, under which the question of confiscation falls to the Court trying the offence, or to the competent authority designated for that purpose. Property that is seized but not required as evidence is, in the ordinary course, forwarded to the Collector for confiscation proceedings, the Collector being the executive officer to whom seized articles liable to confiscation are sent. Where the matter is tried as a criminal offence, however, the trial Magistrate decides the fate of the vehicle along with the verdict. This dual track, executive confiscation of unclaimed contraband and judicial confiscation as part of the trial, means the owner of a seized vehicle must identify which forum is seized of the matter before crafting any application for release.

The bond embargo under Section 98(2)

The provision that historically froze owners out of their vehicles was the proviso to Section 98(2). Before the 2024 amendment, sub-section (2) commanded that a confiscated conveyance "shall not be released on bond or surety till the final judgment of the Court where the quantity of the seized liquor is exceeding the quantity as may be prescribed by the rules". The embargo is quantity-driven: only where the liquor carried crosses the prescribed threshold does the absolute bar on release operate. Below the threshold, ordinary release on bond remains available. The policy rationale is plain, large-scale bootlegging using dedicated vehicles should not be made cheap by allowing the offender to recover the fleet on a token surety. But the embargo had a perverse side effect, addressed by the legislature in 2024 and discussed below.

The 2024 amendment: auction before judgment

The Gujarat Prohibition (Amendment) Act, 2024, deemed to have come into force on 31 July 2024, rewrote the tail of Section 98(2). The old words barring release until final judgment were substituted by a clause stating that "the vehicle so confiscated may be auctioned before the final judgment in the manner as may be prescribed, with the permission of the Court where the quantity of the seized liquor exceeds such quantity as may be prescribed; and in such cases the Deputy Superintendent of Police shall be the competent authority for such auction". The Statement of Objects and Reasons is candid: vehicles that could not be returned to owners "remain unused in the police station or in the court compound till the final judgment" and deteriorate into scrap. Auctioning the vehicle preserves its value, which can later be released or forfeited depending on the outcome. The amendment thus introduces three controls, court permission, the prescribed quantity threshold, and a named competent authority, the Deputy Superintendent of Police.

Interim custody and Section 451 CrPC

Where the bond embargo does not apply, or pending the confiscation decision, the custody of a seized vehicle is governed by Section 451 of the Code of Criminal Procedure, 1973, which empowers the trial court to make orders for the proper custody of property pending the conclusion of the inquiry or trial. The leading authority is Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283 (also reported AIR 2003 SC 638), where a two-Judge Bench of M.B. Shah and D.M. Dharmadhikari, JJ. deplored the practice of letting seized vehicles rot in police compounds. The Court directed that powers under Section 451 be exercised "expeditiously and judiciously", that a proper panchnama with photographs be prepared as a record of the vehicle's condition, and that the vehicle then be released to the rightful claimant on suitable bond and security rather than left to become junk. The judgment remains the touchstone for every superdari application in a prohibition case.

Khengarbhai: the correct door to knock

Owners frequently rush to the High Court under Articles 226 and 227 of the Constitution seeking release of an impounded vehicle, bypassing the Magistrate. The Supreme Court closed that shortcut in Khengarbhai Lakhabhai Dambhala v. State of Gujarat, 2024 SCC OnLine SC 512, decided by Bela M. Trivedi and Pankaj Mithal, JJ. The appellant's vehicle had been seized while carrying 1,240.200 litres of unlicensed liquor, well above any prescribed threshold. The Court held that approaching the High Court directly under Articles 226/227 "without approaching the Magistrate under Section 451 of the CrPC is not proper course of action". Because Section 451 specifically addresses interim custody, the extraordinary writ jurisdiction ought not to be invoked when an efficacious statutory remedy exists. The ruling harmonises Section 98 of the Act with Section 451 of the Code: seizure triggers the Code's custody machinery, and the trial court, not the writ court, is the first port of call.

Why the quantity threshold matters

The prescribed quantity of liquor is the hinge on which both the old embargo and the new auction power turn. Section 98(2) does not bar release of every seized conveyance; it does so only where the liquor carried exceeds the quantity prescribed by the rules. A vehicle caught with a small quantity falls outside the embargo and outside the auction regime, leaving the owner free to seek release on bond under Section 451 in the ordinary way, guided by Sunderbhai Ambalal Desai. The line drawn by the threshold therefore separates the casual carrier from the dedicated bootlegger, and it determines whether the Deputy Superintendent of Police can move to auction the vehicle before the trial concludes. Counsel must always plead the precise seized quantity and the currently prescribed figure, because everything from forum to remedy flows from which side of the line the case falls. It was precisely the enormous quantity, over 1,240 litres, that placed the vehicle in Khengarbhai squarely within the embargo and made the owner's attempt to bypass the Magistrate untenable. Conversely, a marginal or contested quantity opens the door to release on bond and shifts the battleground to the reliability of the panchnama and the chemical analysis. The threshold is not a mere technicality; it is the statutory dividing line between two completely different remedial regimes, and the failure to engage with it is a common reason vehicle-release petitions fail.

The position of the innocent owner

A recurring grievance is that of the financier, hirer or true owner whose vehicle was used by a driver or third party without the owner's knowledge or connivance. Confiscation statutes vary on whether such innocence is a defence. Under the scheme of the Act, confiscation flows from the use of the conveyance in carrying contraband, and the owner's remedy in practice lies through release applications and the disposal stage rather than an absolute statutory immunity written into Section 98. This is where the Sunderbhai Ambalal Desai guidelines acquire real value: by allowing release to the rightful claimant on bond pending trial, the Court ensured that an innocent owner is not made to suffer the destruction of a valuable asset merely because a wrongdoer misused it. The owner who can establish bona fides and lack of complicity is therefore better served by an early, well-documented Section 451 application than by waiting for the confiscation order. Banks and hire-purchase financiers, whose security interest in the vehicle survives the driver's wrongdoing, are particularly well placed to invoke the Sunderbhai directions, since the Court there expressly contemplated release to the owner, the insurer or a third party with a legitimate claim. The lesson for the innocent owner is one of diligence rather than despair: document title, prove want of knowledge, move quickly, and the asset can usually be preserved even where the statute provides no express immunity from confiscation.

Procedure in practice

The lifecycle of a vehicle under Section 98 runs as follows. First, seizure by the Prohibition or Police Officer on detecting liquor in transit, accompanied by a panchnama. Second, production of the vehicle and a report before the competent court, the trigger that Sunderbhai says must be acted on "expeditiously". Third, an interim custody decision under Section 451 CrPC, release on bond and security where the quantity is below threshold, or retention where the embargo applies. Fourth, where the quantity exceeds the prescribed limit, the post-2024 option of pre-judgment auction by the Deputy Superintendent of Police with the Court's permission, preserving value. Fifth, final adjudication of confiscation along with the verdict on the substantive offence. Reading Section 98 against this sequence, and against the definitions of conveyance and intoxicant, prevents the classic mistake of treating a seized vehicle as irretrievably lost the moment it is impounded.

Exam takeaways

For the judiciary and CLAT-PG aspirant, four propositions carry the topic. One, Section 98 makes animals, carts, vessels and other conveyances used in carrying contraband liable to confiscation, the offence-nexus being essential. Two, Section 98(2) historically barred release on bond until final judgment where the seized liquor exceeded the prescribed quantity; the 2024 amendment replaced that frozen state with court-permitted pre-judgment auction by the Deputy Superintendent of Police. Three, interim custody of a merely seized vehicle is governed by Section 451 CrPC and the Sunderbhai Ambalal Desai (2002) directions: panchnama, photographs, release on bond, auction of the unclaimed. Four, Khengarbhai Lakhabhai Dambhala (2024) confirms that the Magistrate under Section 451, not the High Court under Articles 226/227, is the correct first forum for release. Master the seizure-confiscation distinction and the quantity threshold, and the rest of the topic follows.