Arjanbhai Rameshbhai Vanzara vs State Of Gujarat
2022 Latest Caselaw 9832 Guj

     R/SCR.A/12749/2022                              ORDER DATED: 07/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 12749 of 2022

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                          ARJANBHAI RAMESHBHAI VANZARA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Applicant(s) No. 1
MR DHAVAN JAISWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                 Date : 07/12/2022

                                  ORAL ORDER

1. Rule. Learned APP waives service of notice of rule for and on behalf of respondent - State.

2. 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 i.e. JCB Machine bearing RTO Registration No. GJ-35-S-0935 in connection with the FIR being CR. No. 11187006220503 of 2022 registered with Lunavada Police Station, District- Mahisagar for the offence punishable under Sections 186, 506 (2) and 114 of Indian Penal Code, 1860 and under Sections 3 and 21 of the Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2017.

3. Heard learned learned advocates for the parties

4. Learned advocate for the petitioner has submitted 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

R/SCR.A/12749/2022 ORDER DATED: 07/12/2022

and Minerals Department, as per Rule 12 and Section 22 of the said Act. He has further contended that the muddamal vehilce is the only means of livelihood of the petitioner and his family.

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 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. 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. Learned APP further contended that the order passed by the learned trial Court is just and proper.

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

8. 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

R/SCR.A/12749/2022 ORDER DATED: 07/12/2022

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.

(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

R/SCR.A/12749/2022 ORDER DATED: 07/12/2022

9. This Court notices that the said muddmal vehicle 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 muddamal vehicle with few conditions.

10. Resultantly, this petition is allowed, and the order dated 19.11.2022 passed by Additional Sessions Judge and Special (GMMRD), Mahisagar, is set aside. The authority concerned is directed to release the vehicle of petitioner JCB Machine bearing RTO Registration No. GJ-35-S-0935 in the terms and conditions that the petitioner:

(i) shall furnish, by way of security, bond of Rs.1,00,000/- (Rupees one Ten Lakh only) and solvent surety equivalent to the amount;

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.

R/SCR.A/12749/2022 ORDER DATED: 07/12/2022

5. The trial Court shall verify the ownership of the vehicle before releasing 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. Rule is made absolute. Direct Service is permitted.

(ILESH J. VORA,J)

SUCHIT