Ibrahim Malukabhai Setha vs State Of Gujarat
2021 Latest Caselaw 2297 Guj

       R/SCR.A/198/2021                                    JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CRIMINAL APPLICATION NO. 198 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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                          IBRAHIM MALUKABHAI SETHA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MOHIT P PATHAK(7344) for the Applicant(s) No. 1
MR. BHAVIK P SHAH(6391) for the Applicant(s) No. 1
MS. MAITHILI MEHTA, APP for the Respondent(s) No. 1
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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 seeking to quash and set aside

R/SCR.A/198/2021 JUDGMENT

the order dated 23.7.2020 passed by the learned JMFC, Songadh

which is confirmed by order dated 19.09.2020 passed by the

learned Sessions Judge, Tapi at Vyara in Criminal Revision

Application No. 24/2020 and to release the muddamal vehicle -

Eicher Tempo, bearing RTO registration No. GJ-19-U-2199 in

connection with the FIR being II-C.R. No. 44 of 2017, registered

before the Songadh Police Station, District - Tapi for the offence

punishable under Sections 11(d)(e)(f)(h) of the Prevention of

Cruelty to Animals Act, 1960 and under Rule 46 to 56 of the

Transort of Animal Rules, 1978 and under Rule 96, 97, 98 of the

Transort of Animal Rules, 2001 as well as under Sections 3(1), 5,

7, 8, 9 and 10 of the Bombay Animal Preservation Act and under

Sections 4 and 9 of the Gujarat Essential Commodities and Cattle

(Control) Act, 2005 as well as under Section 2 of the Gujarat

State Control of Cattle Transport Rules, 1975 and under Rule

125(e) of the Central Motor Vehicle Rules, 2011 (11th

Amendment).

2. Heard learned advocate Mr. Mohit Pathak 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 Eicher Tempo in question. It is further the case of the petitioner that the learned Courts below have rejected the

R/SCR.A/198/2021 JUDGMENT

release of muddamal applications and 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.

3.1 It is contended that the muddamal Eicher Tempo in question was seized by the police authorities as at the relevant time, 9 buffalos were being transported in the said Eicher Tempo in cruel manner, without any facility and hence, the offence, as aforesaid, came to be registered.

3.2 It is also contended that the petitioner has purchased the muddamal Eicher Tempo in question with aforesaid registration number. That, at present the said vehicle is lying at the police station in abandoned condition. It is also contended that learned JMFC, had rejected the muddamal application and thereafter, the learned Sessions Judge, Tapi at Vyara also confirmed the said order and therefore, the present petition is filed with a prayer to set aside the orders passed by the learned Courts below and 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 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.

R/SCR.A/198/2021 JUDGMENT

4. Per contra, learned APP Ms. Maithili Mehta for the State has vehemently argued that if the said muddamal vehicle is released, in that case there are all chances of committing the same offence in future. Therefore, learned Courts below have rightly disallowed the muddamal application. Learned APP submitted that there is no antecedent upon the petitioner. Further, 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 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

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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 and 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 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

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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 observed that there is no antecedent upon the present petitioner. 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 order dated 23.7.2020 passed by the learned JMFC, Songadh and the order dated 19.09.2020 passed by the learned Sessions Judge, Tapi at Vyara in Criminal Revision Application No. 24/2020, are hereby set aside. The authority concerned is directed to release the vehicle of petitioner being Eicher Tempo, bearing RTO registration No. GJ-19-U-2199 on the terms and conditions that the petitioner:

        R/SCR.A/198/2021                                 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