Gujarat High Court
Gopalji Banarasi Kesari vs State Of Gujaratg on 17 April, 2023
Bench: Samir J. Dave
R/SCR.A/4634/2023 ORDER DATED: 17/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4634 of 2023
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GOPALJI BANARASI KESARI
Versus
STATE OF GUJARATG
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Appearance:
ZAINAB I BHARMAL(9298) for the Applicant(s) No. 1
Mr. J.K. Shah, App for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 17/04/2023
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.
Suzuki Motorcycle bearing RTO Registration No.GJ-19-
BF-4146 in connection with the FIR being
CR.No.11214023220675 of 2022 registered with
Kadodara GIDC Police Station, District- Surat for the
offence punishable under Sections 8 (c), 20(b), 29 of NDPS
Act.
R/SCR.A/4634/2023 ORDER DATED: 17/04/2023
3. Heard learned advocates for the parties
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,
R/SCR.A/4634/2023 ORDER DATED: 17/04/2023
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 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
R/SCR.A/4634/2023 ORDER DATED: 17/04/2023
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.
R/SCR.A/4634/2023 ORDER DATED: 17/04/2023
(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
9. This Court notices that the said muddmal vehicle was
meant for transfer 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
R/SCR.A/4634/2023 ORDER DATED: 17/04/2023
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 24.11.2022 passed by the learned 5th Additional
Sessions Judge, Surat is set aside. The authority
concerned is directed to release the vehicle of petitioner,
Suzuki Motorcycle bearing RTO Registration No.GJ-19-
BF-4146 in the terms and conditions that the petitioner:
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,
R/SCR.A/4634/2023 ORDER DATED: 17/04/2023
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)
MANISH MISHRA
