Babubhai Chhaganbhai Dafada vs State Of Gujarat
2021 Latest Caselaw 2046 Guj

       R/SCR.A/311/2021                                        JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CRIMINAL APPLICATION NO. 311 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1    Whether Reporters of Local Papers may be allowed                    No
     to see the judgment ?

2    To be referred to the Reporter or not ?                             No

3    Whether their Lordships wish to see the fair copy                   No
     of the judgment ?

4    Whether this case involves a substantial question                   No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                     BABUBHAI CHHAGANBHAI DAFADA
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR. ARMANKHAN A GHASURA(8376) for the Applicant(s) No. 1
MR MAHAMMISUFI YAN M SINDHI(10216) for the Applicant(s) No. 1
MS. MAITHILI MEHTA, APP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                            Date : 11/02/2021
                            ORAL JUDGMENT

1. The petitioner has filed this petition seeking to invoke inherent jurisdiction vested under Articles 226 and 227 of the Constitution of India and read with Section 482 of the Code of Criminal Procedure to release the muddamal vehicle- Mahindra and Mahindra Tractor bearing RTO Temporary Registration No. GJ-14-TC-06 (Chassis No. MBNAAADBPKRB00536 and Engine No. RKB2PBN3885) in

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connection with the FIR being CR. No. 11193004201065 of 2020 registered with Amreli (Rural) Police Station District- Amreli for the offences punishable under Sections 379 and 114 of the Indian Penal Code and under Section 21 of the Mines and Minerals (Development and Regulation) Act.

2. Heard learned advocate Mr. Armankhan Ghasura for the petitioner and Ms. Maithili Mehta, learned APP for the respondent State through video conference.

3. The petitioner has prayed for following main reliefs, which are as under:

"(A) Your LORDSHIPS may be pleased to quash and set aside the order dated 29/10/2020 passed by the learned Sessions Judge, Amreli in Criminal Revision Application no. 43/2020 and order dated 17/09/2020 passed by the learned Second Add. Chief Judicial Magistrate, Amreli in muddamal application no. 186/2020, and thereby the vehicle in question may be releaed and handed over to the petitioner forthwith, in the interest of justice;

(B) Your LORDSHIP may be pleased to issue a writ, order or direction directing the Respondent to release /handover of the seized vehicle of the petitioner, the Mahindra and Mahindra tractor bearing temporary registration no. GJ-14-TC-06, Chasis No. MBNAAADBPKRB00536 and Engine No. RKB2PBN3885 to the applicant in connection to the First Information Report being Case No. 11193004201065/2020 registered with Amreli Police Station, Amreli for offences punishable under Sections 379 and 114 of the Indian Penal Code and under Section 21 of the Mines and minerals (development and regulation) act on appropriate conditions as deemed fit

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by this Hon'ble High Court."

Factual Matrix of the case:

4. The fact in nutshell is that the petitioner herein is the owner of the Mahindra and Mahindra tractor bearing temporary registration No. GJ- 14-TC-06. It is alleged that the Police had detained the said tractor as muddamal as it is involved in illegal mining of mineral sand. On 08.08.2020 at around 11.30 am the complainant officer was doing partrolling at Amreli Savarkundala by pass circle and he stopped the tractor which was driven by the driver and he asked the driver to show permit but at that time the driver had not shown the papers of permit, therefore, he called the punchas and seized the tractor from the driver. The respondent No. 2, the Geologist, Amreli issued the notice to the petitioner and ordered to pay fine under Section 21 of the Mines and Minerals Act, so the petitioner has paid the fine and got the order of the releasing the vehicle from respondent No. 2 - the Geologist, Amreli.

5. Learned advocate for the petitioner further submitted that the petitioner initially moved an application before the learned Additional 2nd Chief Judicial Magistrate, Amreli, which was rejected. Thereafter, petitioner has preferred Criminal Revision Application No. 43 of 2020, before the learned Sessions Judge, Amreli, which also came to be rejected.

6. It is further contended that the petitioner is mere a transporter and he in normal course, asks the driver to the tractor to load the sand mineral from legally valid lease area, therefore, he had no knowledge about the alleged incident of carrying sand illegally in the captioned muddamal tractor. He has further contended that the muddamal tractor is the only

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means of livelihood of the petitioner and his family. Moreover, the said tractor has been taken as muddamal, therefore, there is no earning source of income for the petitioner.

7. It is also contended that as per various judgments of this Court and Hon'ble Apex Court in case of Sundarbhai Ambalal Desai vs. State of Gujarat reported in AIR 2003 SC 638 and in case of Smt. Basava Kom Dyaman Gauda Patil Vs. State of Mysore reported in (1977) 4 SCC 358, wherein the captioned mudamal has been released.

8. Learned advocate for the petitioner heavily placed reliance upon the judgments of co- ordinate Bench of this Court, which are as under:

(a) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 15.06.2020 passed in Special Criminal Application No. 6957 of 2019.

(b) In case of Saramanbhai Devsibhai Barad vs. State of Gujarat order dated 10.06.2020 passed in Special Criminal Application No. 8601 of 2019.

(c) In case of Mahesh Mansukhbhai Dholaria vs. State of Gujarat order dated 19.08.2019 passed in Special Criminal Application No. 7806 of 2019.

(d) In case of Anirrudhsinh Pravinsinh Jadeja vs. State of Gujarat order dated 10.08.2018 passed in Special Criminal Application No. 6039 of 2018.

(e) In case of Dilipbhai Ramanbhai Chaudhari (Legal Heirs of Late Ramanbhai Chaudhari) vs. State of Gujarat order dated 14.08.2020 passed in Special Criminal Application No. 3387 of

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2020.

(f) In case of Smitaben Kalpeshbhai Chaudhary vs. State of Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2851 of 2020.

(g) In case of Jignasha Kalpeshbhai Prajapati thro POA Kalpeshbhai Bhagwanbhai Prajapati vs. State of Gujarat order dated20.07.2020 passed in Special Criminal Application No. 2896 of 2020.

(h) In case of Devabhai Ranchhodbhai Ahir vs. State of Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2853 of 2020.

(i) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 15.06.2020 passed in Special Criminal Application No. 6957 of 2019.

(j) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 22.07.2020 passed in Special Criminal Application No. 7143 of 2019.

9. It is also urged that petitioner has only the captioned muddamal tractor for livelihood and source of income, therefore, the petitioner is left with no other alternate but to challenge by way of present petition.

10. Per contra, learned APP Ms. Maithili Mehta has opposed the petition and submitted the report of Investigating Officer, which is taken on record. She further submitted that there is no antecedents upon the petitioner and his name is shown in the FIR.

11. This Court has assistance of judgments and orders passed by the

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Co-ordinate Bench of this Court, which are as under:

(a) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 15.06.2020 passed in Special Criminal Application No. 6957 of 2019.

(b) In case of Saramanbhai Devsibhai Barad vs. State of Gujarat order dated 10.06.2020 passed in Special Criminal Application No. 8601 of 2019.

(c) In case of Mahesh Mansukhbhai Dholaria vs. State of Gujarat order dated 19.08.2019 passed in Special Criminal Application No. 7806 of 2019.

(d) In case of Anirrudhsinh Pravinsinh Jadeja vs. State of Gujarat order dated 10.08.2018 passed in Special Criminal Application No. 6039 of 2018.

(e) In case of Dilipbhai Ramanbhai Chaudhari (Legal Heirs of Late Ramanbhai Chaudhari) vs. State of Gujarat order dated 14.08.2020 passed in Special Criminal Application No. 3387 of 2020.

(f) In case of Smitaben Kalpeshbhai Chaudhary vs. State of Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2851 of 2020.

(g) In case of Jignasha Kalpeshbhai Prajapati thro POA Kalpeshbhai Bhagwanbhai Prajapati vs. State of Gujarat order dated20.07.2020 passed in Special Criminal Application No. 2896 of 2020.

      (h)     In case of Devabhai Ranchhodbhai Ahir vs. State of




         R/SCR.A/311/2021                                     JUDGMENT

Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2853 of 2020.

(i) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 15.06.2020 passed in Special Criminal Application No. 6957 of 2019.

(j) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 22.07.2020 passed in Special Criminal Application No. 7143 of 2019.

12. This Court notices that there is no antecedents upon the present petitioner and his name is shown in the FIR. Further, the said tractor was meant for transfer of material from legal mines and further this offence was not as per instructions of present petitioner to the driver, considering the decision of Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), wherein Hon'ble Apex Court lamented scenario that vehicle having unattended and becoming junk within the premises of Police Station, further the captioned muddamal vehicle was used by employee of the petitioner and petitioner is suffering from many months, therefore, bearing in mind all such facts and circumstances, the petitioner has to be given back his tractor with few conditions.

13. Resultantly, in-fleri this petition is allowed and the order dated 17.09.2020 passed by the learned 2nd Additonal Chief Judicial Magistrate, Amreli and the order dated 29.10.2020 passed by the learned Sessions Judge, Amreli are hereby quashed and set aside. The authority concerned is directed to release the vehicle of petitioner - Mahindra and Mahindra Tractor bearing RTO Temporary Registration No. GJ-14-TC- 06 in the terms and conditions that the petitioner:

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(1) Shall furnish Bank Guarantee of the amount equivalent to Rs. 2,00,000/- or Bank Guarantee of the amount as mentioned in the seizure memo of the vehicle, whichever is less ;

(2) Shall file an undertaking before the trial Court that prior to alienation or transfer in any mode or manner, prior permission of the concerned Court shall be taken till conclusion of the trial,

(3) Shall also file an undertaking to produce the vehicle as an when directed by the trial Court;

(4) If the I.O. finds use of vehicle in such illegal activity by the present petitioner then this order shall stand cancel and the vehicle will be seized.

(5) The trial Court shall verify the ownership of the vehicle before releasing the same.

14. On perusing the record, this Court has found that the registration number of the vehicle i.e. Tractor-cum-trailer is mentioned as GJ-14-T-9570 in the order dated 17.09.2020 passed by the learned 2nd Additional Chief Judicial Magistrate, Amreli and whereas, in the order dated 29.10.2020 passed by the learned Sessions Judge, Amreli, the registration number of the vehicle i.e. Tractor is mentioned as GJ-09-B-6150 Chassis No.MBNAAADBPKRB00536 and Engine No. RKB2PBN3885). However, in the petition memo registration number of the vehicle- tractor is mentioned as RTO Temporary Registration No. GJ-14- TC-06.

14.1 Therefore, this Court is of the view that before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed Panchnama in that regard be made, if not already

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drawn with respect to the actual ownership of the vehicle and only thereafter vehicle may be handed over to the petitioner.

15. If, the I.O. finds it necessary, VIDEOGRAPHY of the vehicle also shall be done. Expenses towards the photographs and the videography shall be BORNE by the petitioner.

16. This petition is partly allowed. Rule is made absolute. The Registry is directed to communicate this order by Fax / by E-mail to the concerned Court and Police Station.

(A. C. JOSHI,J) prk