Jayeshbhai Mepabhai Dhrangiya vs State Of Gujarat
2021 Latest Caselaw 559 Guj

        R/SCR.A/188/2021                                       JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 188 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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                    JAYESHBHAI MEPABHAI DHRANGIYA
                                Versus
                          STATE OF GUJARAT
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Appearance:
MAZHARKHAN M PATHAN(8135) 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 : 18/01/2021

                             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

R/SCR.A/188/2021 JUDGMENT

Section 482 of the Criminal Procedure Code, 1973 seeking to

quash and set aside the order dated 8.10.2020 passed by the

learned JMFC, Kheda, which is confirmed by order dated

21.10.2020 passed by the learned Principal District and Sessions

Judge, Nadiad in Criminal Revision Application No. 90/2020 and to

release the muddamal vehicle - Loading Ashok Leyland Truck,

bearing RTO registration No. MH 20 EG 9640 in connection with

the FIR No. 11204025200048 / 2020, registered before the Kheda

Town Police Station, Dist. Kheda for the offence punishable under

Sections 5, 6(1), 8, 11(1)(D) of the Prevention of Cruelty to

Animals Act, 1960.

2. Heard learned advocate Mr. M.M.Pathan 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 Truck in question. It is further the case of the

petitioner that the learned Courts below have rejected the

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 as there is no prima

facie case against the petitioner.

R/SCR.A/188/2021 JUDGMENT

3.1 It is contended that the muddamal Truck in question was

seized by the police authorities as at the relevant time, 8 cows

and 2 calves were being transported in the said Truck 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 Truck 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,

Kheda had rejected the muddamal application and thereafter, the

learned Principal Sessions Judge, Kheda 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 Mr. Pathan 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

R/SCR.A/188/2021 JUDGMENT

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 argued that if the said muddamal vehicle is released,

in that case there are all chances of committing the same offence

in future. Learned APP has placed on record the report of the I.O.

Which is taken on record. Therefore, learned Courts below have

rightly disallowed the muddamal application. 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. This court has perused the report of the I.O.

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

R/SCR.A/188/2021 JUDGMENT

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

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

R/SCR.A/188/2021 JUDGMENT

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, learned APP has heavily placed reliance upon the

earlier few offences registered against the petitioner for

that this Court has taken note of the same but it is nobody's

case that same vehicle is used in all earlier offences and

therefore, merely antecedents of few offences upon the

petitioner 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 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.

R/SCR.A/188/2021 JUDGMENT

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 order dated 8.10.2020 passed by the learned JMFC, Kheda in

Muddamal Application and the order dated 21.10.2020 passed by

the learned Principal Sessions Judge, Kheda at Nadiad in Criminal

Revision Application No. 90/2020, are hereby set aside. The

authority concerned is directed to release the vehicle of

petitioner being Loading Ashok Leyland Truck, bearing RTO

R/SCR.A/188/2021 JUDGMENT

registration No. Mh 20 EG 9640 on the terms and conditions that

the petitioner:

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 use of vehicle in any illegal activity by the present petitioner then this order shall stand cancelled and the vehicle will be seized.

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.

(DR. ASHOKKUMAR C. JOSHI,J) J.N. W