Gujarat High Court
Zahirkhaa @ Zahirkhan Ahemadkhan ... vs State Of Gujara on 26 June, 2023
Bench: Samir J. Dave
R/SCR.A/6931/2022 ORDER DATED: 26/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6931 of 2022
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ZAHIRKHAA @ ZAHIRKHAN AHEMADKHAN PATHAN
Versus
STATE OF GUJARA
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Appearance:
MR HARNISH M PATEL(9978) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 26/06/2023
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 GOLD BS IV (Chhota Hathi) bearing RTO
Registration No.GJ-23-AT-1307 in connection with the FIR
being C.R. No.11204021210057 of 2021 registered with
Dakor Police Station, District- Kheda for the offence
punishable under Sections 11(a), (d), (e), (f) and (h) of the
Prevention of Cruelty to Animal Act, 1960, Sections 5 and 8 of
R/SCR.A/6931/2022 ORDER DATED: 26/06/2023
Gujarat Animal Preservation Act, 2011 and Sections 177 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 SC 638 and
in case of Smt. Basava Kom Dyaman Gauda Patil Vs.
R/SCR.A/6931/2022 ORDER DATED: 26/06/2023
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 Constitution of India.
8. This Court has also assistance of judgments and orders
R/SCR.A/6931/2022 ORDER DATED: 26/06/2023
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/6931/2022 ORDER DATED: 26/06/2023
(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
muddamal vehicle was used by employee of the petitioner and
R/SCR.A/6931/2022 ORDER DATED: 26/06/2023
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
25.01.2022 passed by the learned Judicial Magistrate First
Class, Dakor and the order dated 08.04.2022 passed by the
Principal Sessions Judge, Kheda at Nadiad are set aside. The
authority concerned is directed to release the vehicle of
petitioner i.e. TATA ACE GOLD BS IV (Chhota Hathi)
bearing RTO Registration No.GJ-23-AT-1307 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,
3. Shall also file an undertaking to produce the vehicle
as an when directed by the trial Court
R/SCR.A/6931/2022 ORDER DATED: 26/06/2023
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)
KUMAR ALOK
