Hydersha Abdullasha Pir vs State Of Gujarat
2021 Latest Caselaw 2127 Guj

      R/SCR.A/4181/2020                                              ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

  R/SPECIAL CRIMINAL APPLICATION NO.                        4181 of 2020

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               HYDERSHA ABDULLASHA PIR
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR NISARG H VYAS(9431) for the Applicant(s) No. 1
MS MAITHILI D. MEHTA ADDITIONAL PUBLIC PROSECUTOR (2)
for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3,4
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                          Date : 12/02/2021

                              ORAL ORDER

1. Heard learned Advocate Mr. Nisarg H. Vyas on behalf of the applicant and learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of the respondent­State.

2. By way of this application, the applicant prays for release of vehicle being truck/dumper bearing registration No.GJ­12­BX­9254, which was seized on account of carrying goods without any pass or permit in connection with the Criminal complaint/FIR being II­C.R.No.11205043201764 of 2020 dated 12.05.2020 registered with Bhuj City B­Division Police Station, Kutchh for the offences punishable under Section 379 and 114 of the Indian Penal Code read with Section 4(1),

R/SCR.A/4181/2020 ORDER

4(1)(A) of the Mines and Minerals (Development and Regulation) Act, 1957 and Section 3 of the Gujarat Minerals (Prevention of Illegal Mining Transportation and Storage) Rules, 2017.

3. The applicant submits that vide order dated 6.1.2021 he has been permitted to deposit an amount of Rs.2,43,875/­ before the concerned office at Bhuj Kutchh, learned Advocate Mr. Nisarg H. Vyas has submitted that the said amount is deposited and whereas by way of an order dated 11.01.2021 of the office of the Commissioner of Geology and Mining, the said amount is stated to have been accepted by the said authorities.

4. Considering the same, issue Rule. learned Additional Public Prosecutor waives service of rule on behalf of the respondent-State of Gujarat.

5. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order or direction for release of vehicle being truck/dumper bearing registration No.GJ­12­BX­9254, seized as muddamal in connection with FIR being II­ C.R.No.11205043201764 of 2020 dated 12.05.2020 registered with Bhuj City B­Division Police Station, Kutchh for the offences punishable under Section 379 and 114 of the Indian Penal Code read with Section 4(1), 4(1)(A) of the

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Mines and Minerals (Development and Regulation) Act, 1957 and Section 3 of the Gujarat Minerals (Prevention of Illegal Mining Transportation and Storage) Rules, 2017.

6. Heard learned Advocate for the petitioner and learned APP for the respondent­State through video conference.

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

"(a) This Hon'ble Court may be pleased to admit and allow this petition;

(b) This Hon'ble Court may be pleased to quash and set­aside the impugned order dated 23.06.2020 passed by the learned Chief Judicial Magistrate, Bhuj­Kutchh and be further pleased to issue appropriate writ, order or direction against the respondents herein for releasing the vehicle i.e. dumper/Truck bearing No.GJ­12­BX­ 9254 of the ownership of the petitioner which is seized by the respondent No.4, on such terms and conditions as this Hon'ble Court may deem think fit.

(c) Pending admission final hearing and disposal of this petition, direct the respondent No.4 for Interim release of the vehicle.

(d) Grant such other and further relief as through fit in the interest of justice."

8. The fact in nutsell is that the petitioner herein is the owner of Truck/Dumper bearing Registration No.GJ­12­BX­9254. It is alleged that the Police had detained the said muddamal as it is involved in illegal mining and

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transportation of mineral sand and therefore name of many other accused person along with the present petitioner were arraigned in the FIR and the present complaint was lodged and the FIR as aforesaid came to be registered with for the offences under the Indian Penal Code and the Mines and Minerals (Development and Regulation) Act, 1957 and the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules 2017.

9. The applicant submits that vide order dated 6.1.2021 he has been permitted to deposit an amount of Rs.2,43,875/­ before the concerned office at Bhuj Kutchh, learned Advocate Mr. Nisarg H. Vyas has submitted that the said amount is deposited and whereas by way of an order dated 11.01.2021 of the office of the Commissioner of Geology and Mining, the said amount is stated to have been accepted by the said authorities.

10. 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 muddamal has been released.

11. It is also urged that petitioner has only the captioned muddamal for livelihood and source

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of income, further other strict conditions have been imposed and the said condition having been found to be too harsh, the petitioner is left with no other alternate but to challenge by way of present petition. Therefore, to that extent conditions may be modified.

12. Per contra, learned APP has heavily opposed and placed reliance upon the judgment dated 18.12.2017 passed by Co­ordinate Bench of this Court in case of Jhala Ghanshyamsingh Mobatsingh vs. State of Gujarat in Special Criminal Application No. 9745 of 2017 and taken this Court at relevant Para Nos. 10 and 15 and contended that Bank Guarantee to the tune of 1.5 time of value of vehicle is just and proper, therefore, order of the trial Court is not required to be modified.

13. Having heard the arguments advanced by both the sides, while determining the other issues raised by the learned APP with reference to Mines Act and also with reference to judgments of this Court and judgment dated 18.12.2017 in case of Jhala Ghanshyamsingh Mobatsingh vs. State of Gujarat and other provisions of the said Act and referring to that and the issues to be determined in future in appropriate proceedings being contentious issue, this Court is not inclined to enter into that arena in the present matter and instead exercised powers vested under Articles 226 and 227 of the

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Constitution of India.

14. This Court notices that the said muddamal 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 truck with few conditions since conditions imposed by trial Court appear too harsh. Therefore, when the Co­ ordinate Bench passed many orders in similar set of circumstances and released vehicles/ machinery, this Court is also inclined to modify the conditions, considering the fact that the petitioner is ready to compound the offence by depositing the fine amount and bank guarantee.

15. Resultantly, this petition is allowed, the authority concerned is directed to release the vehicle of petitioner truck/dumper bearing registration No.GJ­12­BX­9254 in the terms and conditions that the petitioner:

(1) Shall file an undertaking before the trial Court that prior to alienation or transfer in

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any mode or manner, prior permission of the concerned Court shall be taken till conclusion of the trial,

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

(3) Shall appear before the I.O. as and when called for and shall cooperate with the Investigating Agency.

(4) Shall appear before the I.O. as and when called for and shall cooperate with the Investigating Agency.

(5) 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.

16. Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and a detailed Panchnama with regard to owner etc., if not already drawn, shall also be drawn for the purpose of trial.

17. 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.

18. This petition is allowed. Rule is made absolute. The Registry is directed to communicate this order by Fax / by E­mail to the concerned Court and Police Station.

(NIKHIL S. KARIEL,J) Pallavi