Gujarat High Court
Mohammed Asik Najiroodeen Malek vs State Of Gujarat on 12 February, 2021
Bench: Ashokkumar C. Joshi
R/SCR.A/169/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 169 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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MOHAMMED ASIK NAJIROODEEN MALEK
Versus
STATE OF GUJARAT
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Appearance:
MR.MINHAJ M SHAIKH(6847) for the Applicant(s) No. 1
MS. MAITHILI MEHTA, APP, for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 12/02/2021
ORAL JUDGMENT
1. The petitioner has filed this petition seeking to invoke extra
ordinary jurisdiction of this Court under Articles 226 and 227 of
the Constitution of India, particularly supervisory jurisdiction and
under the provisions of Sections 451, read with Section 482 of the
Criminal Procedure Code, 1973, to release the muddamal vehicle
- Bajaj Auto, bearing RTO registration No. GJ-23-AU-2020 in
connection with the FIR being II-C.R. No. of 115 of 2019,
R/SCR.A/169/2021 JUDGMENT
registered before the Fatehganj, Police Station, District-
Vadodara(City) for the offence punishable under Sections 6B(3)
(2), 8(2), 8(4), 6A(4)(3) of the Animal Preservation Act and
under Sections 429 and 114 of the IPC.
2. Heard learned advocate Mr. Minhaj Shaikh for the petitioner
and learned APP Ms. Maithili Mehta on behalf of the respondent -
State video conference.
Factual Matrix of the case:
3. It is the case of the petitioner that he is the owner of the
muddamal Vehicle in question. It is further the case of the
petitioner that if the muddamal vehicle would lie at the police
station for more time, there will be physical damage to it and
therefore, interference of this Hon'ble Court is required in the
interest of justice as there is no prima facie case against the
petitioner.
3.1 It is contended that the muddamal Vehicle in question was
seized by the police authorities as at the relevant time, mutton
approximately 746 Kg was found from the said vehicle and
hence, the offence, as aforesaid, came to be registered.
3.2 It is also contended that the petitioner has purchased the
muddamal Vehicle in question with aforesaid registration
number. That, at present the said vehicle is lying at the police
station in abandoned condition, therefore, also prayed for
releasing the aforesaid muddamal vehicle.
3.3 Learned advocate for the petitioner time and again
vehemently submitted that the Coordinate Bench passed the
order in favour of the petitioner in identical cases. Further
learned advocate for the petitioner has placed reliance upon the
R/SCR.A/169/2021 JUDGMENT
judgment of Coordinate Bench (1) in case of Anash Hasan
Suthiya Vs. State of Gujarat in Special Criminal Application
No. 8728 of 2018 dated 12.02.2019 and also placed reliance
upon the judgment delivered by the Hon'ble Apex Court in case
of Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003
SC 638.
4. Per contra, learned APP Ms. Maithili Mehta for the State has
vehemently opposed the petition. Further argued that in the
present case, if the said muddamal vehicle is released, in that
case there are all chances of committing the same offence in
future. Learned APP has also placed reliance upon the judgment
passed by this Court in case of Anilkumar Ramlal @ Ramanlaji
Mehta Vs. State of Gujarat in Special Criminal Application No.
2185 of 2018 dated 05.04.2018. It is also contended that learned
Courts below have rightly disallowed the muddamal applications
by invoking Section 6A of the Gujarat Animal Prevention
(Amendment) Act, 2017 and the Courts below have no
jurisdiction to pass order for interim release of muddamal vehicle
when trial is pending.
5. Having heard the arguments advanced by both the sides, it
appears that this Court, in the case of Anilkumar Ramlal @
Ramanlaji Mehta Vs. State of Gujarat (supra) in Special
Criminal Application No. 2185 of 2018, by order dated
05.04.2018, has also released the muddamal vehicle under
Articles 226 and 227 of the Constitution by exercising its powers
even at initial stage.
6. It would be worthwhile to refer profitably at this stage to
the observations made by the Hon'ble Apex Court that within a
period of six months from the date of production of the vehicle
before concerned Court, needful be done. Further, the Hon'ble
R/SCR.A/169/2021 JUDGMENT
Apex Court also went to the extent of directing that where the
vehicle is not claimed by the accused, owner, or the Insurance
Company or by third person, then such vehicle may be ordered to
be auctioned by the Court. If the said vehicle is insured with the
insurance company then Insurance Company be informed by the
Court to take possession of the vehicle which is not claimed by
the owner or a third person. If the Insurance company fails to
take possession, the vehicle may be sold as per the direction of
the Court. The Court would pass such order within a period of six
months from the date of production of such vehicle before the
Court. It is also directed that before handing over possession of
such vehicle, appropriate photographs of the said vehicle should
be taken and a detailed panchnama should also be prepared. The
Hon'ble Apex Court also held and specifically directed that the
concerned Magistrate would take immediate action for seeing
that powers under Section 451 of the Code are properly and
promptly exercised and articles are not kept for long time at the
police station, in any case, for not more than fifteen days to one
month. It, therefore, directed that this object can also be
achieved if there is proper supervision by the Registry of the
concerned High Court in seeing that the Rules framed by the High
Court with regard to such articles are implemented properly.
6.1 Further, it is nobody's case that same vehicle is used in all
earlier offences, therefore, it cannot deny the interim possession
of vehicle to the petitioner and on the basis of the judgment of
Hon'ble Supreme Court in case of Sunderbhai Ambalal Desai
Vs. State of Gujarat (Supra), this Court is inclined to exercise
extraordinary powers under Articles 226 and 227 of the
Constitution. It is observed by the Hon'ble Apex Court in case of
Sunderbhai Ambalal Desai Vs. State of Gujarat (Supra), as
R/SCR.A/169/2021 JUDGMENT
under:
"15. Learned Senior Counsel Mr. Dholakia, appearing for
the State of Gujarat further submitted that at present in the
Police Station premises, number of vehicles are kept
unattended and vehicles become junk day by day. It is his
contention that appropriate directions should be given to
the Magistrates who are dealing with such questions to
hand over such vehicles to its owner or to the person from
whom the said vehicles are seized by taking appropriate
bond and the guarantee for the return of the said vehicles
if required by the Court at any point of time.
16. However, the learned counsel appearing for the
petitioners submitted that this question of handing over
vehicles to the person from whom it is seized or to its true
owner is always a matter of litigation and a lot of
arguments are advanced by the concerned persons.
17. In our view, whatever be the situation, it is of no use
to keep such -seized vehicles at the police stations for a
long period. It is for the Magistrate to pass appropriate
orders immediately by taking appropriate bond and
guarantee as well as security for return of the said
vehicles, if required at any point of time. This can be done
pending hearing of applications for return of such
vehicles."
6.2 This Court has assistance of orders passed by the
Coordinate Bench in case of Anash Hasan Suthiya Vs. State
of Gujarat in Special Criminal Application No. 8728 of 2018
dated 12.02.2019 and also placed reliance upon the judgment
delivered by the Hon'ble Apex Court in case of Sunderbhai
Ambalal Desai Vs. State of Gujarat, AIR 2003 SC 638,
wherein, muddamal vehicle was released by this Court at many
occasions.
7. Resultantly, in-fleri the petition succeeds and is allowed.
The authority concerned is directed to release the vehicle of
petitioner being Bajaj Auto, bearing RTO registration No. GJ-23-
AU-2020 on the terms and conditions that the petitioner:
R/SCR.A/169/2021 JUDGMENT
a) shall furnish, by way of security, bond as per valued
cited in Panchnama or seizure memo and solvent surety of
the equivalent amount;
b) 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;
c) shall also file an undertaking to produce the vehicle
as an when directed by the trial Court;
d) If the IO finds re-use of vehicle in any anti-social,
illegal activity by the present petitioner then this order shall
stand cancelled and the vehicle will be seized.
e) the trial court shall verify the ownership of the vehicle
before releasing the same.
7.1 Before handing over the possession of the vehicle to the
petitioner, necessary photographs shall be taken and a detailed
Panchnama in that regard, if not already drawn, shall also be
drawn for the purpose of trial.
7.2 If, the IO finds it necessary, VIDEOGRAPHY of the vehicle
also shall be done. Expenses towards the photographs and the
videography shall be BORNE by the petitioner.
8. Rule is made absolute accordingly. The Registry is
directed to communicate this order by fax / e-mail to the
concerned Court and police station.
(A. C. JOSHI,J)
prk
