Govindbhai Keshabhai Raval vs State Of Gujarat
2023 Latest Caselaw 3066 Guj

     R/SCR.A/4919/2023                                   ORDER DATED: 20/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
           R/SPECIAL CRIMINAL APPLICATION NO. 4919 of 2023
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                         GOVINDBHAI KESHABHAI RAVAL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR VA MANSURI(2880) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. K.M. ANTANI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                               Date : 20/04/2023

                                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 ACE Truck bearing RTO Registration No.GJ-06-

AV-6572 in connection with the FIR being

CR.No.11188001210006 of 2021 registered with

Ambaliyara Police Station, District- Arvalli for the

offence punishable under Sections 5, 6, 6(A), 8 and 11(E) (L)

of the Animal Protection Act and Section 279 of the Indian

R/SCR.A/4919/2023 ORDER DATED: 20/04/2023

Penal Code and Sections 177, 184, and 192 of the Motor

Vehicle Act

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

R/SCR.A/4919/2023 ORDER DATED: 20/04/2023

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 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

R/SCR.A/4919/2023 ORDER DATED: 20/04/2023

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 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.

R/SCR.A/4919/2023 ORDER DATED: 20/04/2023

(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

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

R/SCR.A/4919/2023 ORDER DATED: 20/04/2023

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 22.02.2023 passed by the learned Sessions Judge,

Arvalli is set aside. The authority concerned is directed to

release the vehicle of petitioner i.e. TATA ACE Truck

bearing RTO Registration No.GJ-06-AV-6572 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

R/SCR.A/4919/2023 ORDER DATED: 20/04/2023

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) MANISH MISHRA