Gujarat High Court
Prabhubhai Bhimajibhai ... vs State Of Gujarat on 12 April, 2023
Bench: Samir J. Dave
R/SCR.A/3879/2023 ORDER DATED: 12/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3879 of 2023
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PRABHUBHAI BHIMAJIBHAI RAJKOTIYA
Versus
STATE OF GUJARAT
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1
MS M. H. BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 12/04/2023
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 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. Tata MOTORS
TANKER bearing RTO Registration No.GJ-03-W-9082 in
connection with the FIR being CR.No.11189006210706
of 2021 registered with Tankara Police Station,
District- Morbi for the offence punishable under
Sections 278, 284, 285, 114 of the IPC and under
sections 3 and 7 of the Essential Commodities Act.
3. Heard learned advocates for the parties
R/SCR.A/3879/2023 ORDER DATED: 12/04/2023
4. Learned advocate for the petitioner has
submitted that the muddamal vehicle has been
detained by the investigating officer and that if
the interim custody of the vehicle is not given,
serious prejudice would be caused to the petitioner
as the muddamal vehicle would get substantially
damaged by the time trial gets concluded and
probably by that time the value of the muddamal
vehicle may also become 'Nil' as the vehicle is
lying under the open sky in different climatic
conditions. It was further submitted that this
Court has ordered release of muddamal vehicles. It
was accordingly urged that this Court may direct
release of the muddamal vehicle in exercise of the
extraordinary jurisdiction under Article 226 of the
Constitution of India on suitable terms and
conditions.
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
R/SCR.A/3879/2023 ORDER DATED: 12/04/2023
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
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.
10. Resultantly, this petition is allowed, and the
order dated 02.07.2022 passed by the learned JMFC,
Tankara and the order dated 30.08.2022 passed by
the learned Sessions Judge, Morbi are set aside.
The authority concerned is directed to release the
vehicle of petitioner, Tata MOTORS TANKER bearing
RTO Registration No.GJ-03-W-9082 in the terms and
conditions that the petitioner:
R/SCR.A/3879/2023 ORDER DATED: 12/04/2023
1. shall furnish a solvent surety of the amount
equivalent to the value of the vehicle in
question as per the value disclosed in the
seizure memo or panchnama.
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.
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.
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
