Bhikhubhai Ramjibhai Madhad vs State Of Gujarat
2021 Latest Caselaw 16775 Guj

      R/SCR.A/3544/2021                                 ORDER DATED: 26/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 3544 of 2021

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                          BHIKHUBHAI RAMJIBHAI MADHAD
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
MS.KRINA CALLA APP(2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                  Date : 26/10/2021

                                   ORAL ORDER

[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- Dumper bearing RTO Registration No. GJ-02-Y-6846 in connection with the FIR being I-CR. No. 107 of 2019 registered with Amreli Rural Police Station, District- Amreli for the offence punishable under Sections 114, 186, 188 and 379 of the Indian Penal Code and under Section 21 of the Mines and Minerals (Regulation and Development) Act and under Rule 3 and 5 of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2017.

[2] Heard learned learned advocates for the parties.

[3] The facts nutshell of the case are that the petitioner moved one muddamal application No. 228 of 2020 before the learned Chief Judicial Magistrate, Amreli for the release of the

R/SCR.A/3544/2021 ORDER DATED: 26/10/2021

said vehicle- dumper on 14.10.2020. The learned Chief Judicial Magistrate was pleased to allow the said application upon certain terms and conditions including the condition of providing 1.5 times unconstitutional nationalized bank guarantee of the value of the vehicle. Being aggrieved and dissatisfied by the condition of giving 1.5 times unconditional nationalized bank guarantee of the value of the vehicle, on 29.10.2020, the petitioner had moved a Criminal Revision Application No. 46 of 2020 before the Principal Sessions Judge, Amreli.

[4] Learned advocate for the petitioner has submitted that the petitioner is mere a transporter and he in normal course, asks the driver of the dumper 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 dumper. Learned advocate for the petitioner urged that offence under the MMDR Act, so it is a compoundable offence and the petitioner is ready to pay any penalty laid down by the Mines and Minerals Department, as per Rule 12 and Section 22 of the said Act. He has further contended that the muddamal dumper is the only means of livelihood of the petitioner and his family. It is further urged that because of imposing strict condition of furnishing unconditional bank guarantee to the tune of 1.5 times of the value of the muddamal dumper would be extremely higher and almost impossible for the petitioner to pay.

[5] 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

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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.

[6] It is also urged that petitioner has only the captioned muddamal dumper for livelihood and source 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.

[7] Per contra, learned APP has heavily opposed and placed reliance upon the judgment dated 18.12.2017 passed by Co-ordinate 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.

[8] 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

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exercised powers vested under Articles 226 and 227 of the Constitution of India.

[9] This Court has also assistance of judgments and orders passed by the 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 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.

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(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.

[10] This Court notices that the said dumper 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 dumper 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, the petitioner is permitted to furnish Bank Guarantee of the amount of Rs.2,00,000/- or bank guarantee of the amount mentioned in the seizure memo of the vehicle, whichever is less.

[11] Resultantly, this petition is allowed, and the order dated 22.10.2020 passed by the learned 2nd Additional Chief Judicial Magistrate, Amreli and the order dated 17.12.2020 passed by the learned Sessions Judge, Amreli are set aside. The authority concerned is directed to release the vehicle of petitioner Ashok Leyland Dumper bearing RTO Registration No. GJ-02-Y-6846 in the terms and conditions that the petitioner:

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1. Shall furnish a Bank Guarantee of Rs.1,00,000/- (Rupees One Lakh Only) or bank guarantee of the amount 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 anti-social, 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.

[12] 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.

[13] 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. Rule is made absolute.

(ILESH J. VORA,J) Manoj