Gujarat High Court
Yakubbhai Amirhussain Kureshi vs State Of Gujarat on 20 January, 2023
Bench: Ilesh J. Vora
R/SCR.A/10513/2022 ORDER DATED: 20/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10513 of 2022
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YAKUBBHAI AMIRHUSSAIN KURESHI
Versus
STATE OF GUJARAT
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Appearance:
MR MK VAKHARIA(1483) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 20/01/2023
ORAL ORDER
Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of respondent-State.
1. This petition has been preferred under Articles 226 and 227 of
the Constitution of India essentially seeking relief to release the
muddamal weapon i.e. 12 Bore Gun Single Barrel Bich Load Nal 30
Inch Bordi 11 Inch Kundho 12 Inch having license
no.LNI12265F7A12217/MAHUVA/PAK/425 which was seized in
pursuant to the FIR bearing C.R.No.11198035220086 of 2022
registered with Mahuva Police Station, District: Bhavnagar for the
offence punishable under Sections 269, 188 and 144 of the Indian
Penal Code and Section 51(b) of Disaster Management Act and
Section 3 of the Epidemic Disease Act and Sections 25(a), 29(b) and
30 of the Arms Act and also prays to quash and set aside the
judgment and order dated 24.06.2022 passed by learned 6 th
Additional Sessions Judge, Bhavnagar at Mahuva in Criminal
Revision Application No.9 of 2022 confirming the order dated
R/SCR.A/10513/2022 ORDER DATED: 20/01/2023
22.03.2022 passed by learned Additional Chief Judicial Magistrate,
Mahuva rejecting the application of the petitioner for interim
custody of the said muddamal.
2. It is the case of the petitioner that petitioner is the owner of
the aforesaid weapon and it is duly registered with the concerned
department of the Government. He is, therefore, before this Court.
3. The case of the prosecution is that PSI of Mahuva Police Station
received one application dated 22.01.2022 from one Shaileshbhai
Joliya stating that, on 21.01.2022 there was an election for the post
of Up-Sarpanch in Naip Village, Taluka: Mahuva and in the noon one
Vijaysinh Makwana was declared to be elected as Up-Sarpanch and
therefore, the present applicant and others have taken out
procession in public with open fire arms without any permission and
photographs thereof were produced by the applicant i.e.
Shaileshbhai Joliya on 22.01.2022. That on perusal of it as well as
media reports, since the Government has declared the Covid-19
Pandemic as worldwide pandemic and with a view to curb the
spread of Corona Virus, the Government through District Magistrate
issued guideline dated 12.01.2022 and therefore, all the above
persons without permission have taken out procession in violation of
above guidelines and have committed breach of it and therefore,
the complainant has lodged the FIR in question.
4. Heard learned advocate for the petitioner and learned APP for
the respondent State.
5. Learned Advocate for the petitioner submitted that, the
muddamal weapon cannot be kept at the police station for more
time, otherwise, there will be physical damage to it and its parts
may get damaged for want of service and proper care and
R/SCR.A/10513/2022 ORDER DATED: 20/01/2023
maintenance and therefore, interference of this Court is required. It
is submitted that investigation is over and the investigating officer
has filed report under Section 173 of Cr.P.C. before the concerned
trial Court and since investigation is over and criminal case is
pending trial, the muddamal weapon is require to be released in the
interest of justice. It is submitted that, from perusal of FIR as well as
application dated 29.01.2022, as well as report under Section 173 of
Cr.P.C., nowhere it is mentioned that any firing took place from the
said weapon. It is submitted that only with malafide intention and
ulterior motive, weapon of the petitioner got seized and therefore,
also, appropriate orders are require to be passed to release the
muddamal weapon.
6. Learned APP for the respondent-State has objected the
submissions made by learned advocate for the petitioner and
further, urged that, of course, powers of this Court under Article 226
of the Constitution to order release of the vehicle can be exercised
at any time, whenever the Court deems it appropriate.
7. Resultantly, this application is allowed. The order dated
24.06.2022 passed by learned 6th Additional Sessions Judge,
Bhavnagar at Mahuva in Criminal Revision Application No.9 of 2022
as well as the order dated 22.03.2022 passed by learned Additional
Chief Judicial Magistrate, Mahuva, are hereby quashed and set
aside. The authority concerned is directed to release the muddamal
weapon i.e. 12 Bore Gun Single Barrel Bich Load Nal 30 Inch Bordi
11 Inch Kundho 12 Inch having license
no.LNI12265F7A12217/MAHUVA/PAK/425, on the terms and
conditions that the petitioner:
(i) shall furnish a solvent surety of the amount equivalent to the value of
the muddamal in question as per the value disclosed in the seizure
memo or panchnama.
R/SCR.A/10513/2022 ORDER DATED: 20/01/2023
(iii) shall also file an undertaking to produce the muddamal as and when
directed by the trial Court;
(iv) in the event of any subsequent offence, the muddamal weapon shall
stand CONFISCATED.
(v) Before handing over the possession of the muddamal weapon 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.
8. Rule is made absolute, accordingly. Direct service permitted.
(ILESH J. VORA,J)
TAUSIF SAIYED
