Gujarat High Court
Rayjibhai Laxmanbhai Parmar vs State Of Gujarat on 2 September, 2021
Bench: Ashokkumar C. Joshi
R/SCR.A/501/2021 JUDGMENT DATED: 02/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 501 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
==========================================================
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 ?
==========================================================
RAYJIBHAI LAXMANBHAI PARMAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR NIRAL R MEHTA(3001) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 02/09/2021
ORAL JUDGMENT
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 vehicles (1) Hyundai Hydraulic Excavator R220LC-7-
MAGIQ (2) JS205 Tracked Excelator 0.9 Cum HD BKT and (3) JCB205
LC Track 0.9 Cum HD BKT in connection with the FIR being CR. No.
R/SCR.A/501/2021 JUDGMENT DATED: 02/09/2021
11207078200394 of 2020 registered with Kankanpur Police Station,
District- Panchmahal for the offences punishable under Sections 379, 114
and 120(B) of the Indian Penal Code and under Sections 3, 21 and 22(a)
of the Gujarat Minerals (Prevention of Illegal Mining Storage and
Transportation) Rules, 2017 and under Sections 4(1)A, 21(1), 21(4) and
21(4A) of the Mines and Minerals (Regulation and Development) Act,
1957.
2. Heard learned advocate Mr. Niral R. Mehta for the petitioner and
Ms. Jirga Jhaveri learned APP for the respondent State.
2.1 Rule returnable forthwith. Learned APP Ms. Jirga Jhaveri waives
service of rule for the respondent- State.
3. The petitioner has prayed for following main reliefs, which are as
under:
"(B) Be pleased to issue a Writ of Certiorari and/or a Writ in the
nature of Certiorari by quashing and setting aside the order dated
05/10/2020 passed by the Ld. 3rd Addl. Chief Judicial Magistrate,
Godhra as well as order dated 01/12/2020 passed in Criminal
Revision 402020 passed by the Ld. 4th Addl. Sessions Judge,
Panchmahals at Godhara by further directing the concerned
authorities to release the following vehicles:
No. Serial No. Catalogue Engine No.
Description
1 N602D01816 Hyundai Hyudrulic
Excavator R220LC-
7- MAGIQ
2 2752292 JS205 Tracked 84834320
Excelator 0.9 Cum
HD BKT
3 2853189 JCB205 LC Track 84889286
0.9 Cum HD BKT
4. The facts nutshell of the case are that the petitioner moved
R/SCR.A/501/2021 JUDGMENT DATED: 02/09/2021
one muddamal application under Section 451 of the Criminal
Procedure Code before the learned 3 rd Additional Chief Judicial
Magistrate, Godhra for the release of the said vehicles. The
learned 3rd Additional Chief Judicial Magistrate was pleased to
disallow the said application by order dated 05.10.2020.
Therefore, the petitioner has preferred the Criminal Revision
Application No. 40 of 2020 before the 4th Additional Sessions
Judge, Panchmahals at Godhra, the said criminal Revision
Application, which came to be dismissed by order dated
01.12.2020.
5. Learned advocate for the petitioner has submitted that on
10.01.2020 vehicles in questioned were seized along with other
vehicles by the department of Mines and Minerals without
following due procedure of law. He further submitted that later on
Muddamal Pavti No. 79 of 2020 dated 14.08.2020 after
registering the aforesaid FIR has been issued. 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 vehicles in question are the only means of livelihood of
the petitioner and his family.
6. 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
R/SCR.A/501/2021 JUDGMENT DATED: 02/09/2021
mudamal has been released.
7. Learned advocate for the petitioner heavily placed reliance
upon the judgments of 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
R/SCR.A/501/2021 JUDGMENT DATED: 02/09/2021
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.
(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.
8. Having heard the arguments advanced by both the sides and
looking to the facts and circumstances of the case, this Court is inclined
to exercise powers vested under Articles 226 and 227 of the Constitution
of India. This Court has also assistance of judgments and orders passed
by the Co-ordinate Bench of this Court, which are as under:
(k) 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.
(l) In case of Saramanbhai Devsibhai Barad vs. State of Gujarat
order dated 10.06.2020 passed in Special Criminal Application
No. 8601 of 2019.
(m) In case of Mahesh Mansukhbhai Dholaria vs. State of
Gujarat order dated 19.08.2019 passed in Special Criminal
Application No. 7806 of 2019.
(n) In case of Anirrudhsinh Pravinsinh Jadeja vs. State of
R/SCR.A/501/2021 JUDGMENT DATED: 02/09/2021
Gujarat order dated 10.08.2018 passed in Special Criminal
Application No. 6039 of 2018.
(o) 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.
(p) In case of Smitaben Kalpeshbhai Chaudhary vs. State of
Gujarat order dated 20.07.2020 passed in Special Criminal
Application No. 2851 of 2020.
(q) 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.
(r) In case of Devabhai Ranchhodbhai Ahir vs. State of Gujarat
order dated 20.07.2020 passed in Special Criminal Application
No. 2853 of 2020.
(s) 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.
(t) 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.
9. This Court notices that the said vehicle were meant for excavation of
minerals 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
R/SCR.A/501/2021 JUDGMENT DATED: 02/09/2021
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
vehicles, with conditions. Therefore, when the Co-ordinate Bench
passed many orders in similar set of circumstances and released vehicles/
machinery, this Court is inclined to allow the present petition, with
condition to furnish Bank Guarantee of the amount equivalent of the
value mentioned in the seizure memo of each vehicle.
10. Resultantly, in-fleri this petition is allowed, and the order dated
05.10.2020 passed by the learned 3rd Additional Chief Judicial
Magistrate, Godhra and the order dated 01.12.2020 passed by the learned
4th Additional Sessions Judge, Panchmahals at Godhra are set aside. The
authority concerned is directed to release three vehicles of petitioner viz.
(1) Hyundai Hydraulic Excavator R220LC-7- MAGIQ (2) JS205
Tracked Excelator 0.9 Cum HD BKT and (3) JCB205 LC Track 0.9
Cum HD BKT in the terms and conditions that the petitioner:
1. Shall furnish Bank Guarantee of the amount
mentioned in the seizure memo of the all three
vehicles,
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 vehicles
as an when directed by the trial Court;
R/SCR.A/501/2021 JUDGMENT DATED: 02/09/2021
4. If the I.O. finds use of vehicles in such anti-social,
illegal activity by the present petitioner then this order
shall stand cancel and the vehicles will be seized.
5. The trial Court shall verify the ownership of the
vehicles before relesaing the same;
11. 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.
12. 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.
13. This petition is allowed. Rule is made absolute. Direct
service is permitted. The Registry is directed to communicate this
order by Fax / by E-mail to the concerned Court and Police Station.
(A. C. JOSHI,J)
prk
