Gujarat High Court
Prajitbhai Gopalbhai Birari vs State Of Gujarat on 1 March, 2023
Bench: Samir J. Dave
R/SCR.A/12164/2021 ORDER DATED: 01/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12164 of 2021
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PRAJITBHAI GOPALBHAI BIRARI
Versus
STATE OF GUJARAT
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Appearance:
K T BELADIYA(9101) for the Applicant(s) No. 1
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 01/03/2023
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 seeking
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.
Mahindra Bolero Pick up Bearing RTO Registration
No. GJ-23-Y-1056 in connection with the FIR being
CR. No.11822009210003 of 2021 registered with
Chikhli Police Station, District- Navsari for the
R/SCR.A/12164/2021 ORDER DATED: 01/03/2023
offence punishable under Sections 11(D),(E) of the
Prevention of Animal Cruelty Act, 1960 and under
section 6(A)(1) of the Animal Preservation Act,
2011 and under sections 6(A)(4)(8)(4) of the
Gujarat Animal Preservation (Amendment) Act, 2017.
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 even
in instances under section 98(2) of the amended Act
and hence, the Court may consider the case of the
R/SCR.A/12164/2021 ORDER DATED: 01/03/2023
petitioner since this may fall under section 99 of
the Act. 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
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
R/SCR.A/12164/2021 ORDER DATED: 01/03/2023
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 Mines
Act and also 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 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.
R/SCR.A/12164/2021 ORDER DATED: 01/03/2023
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.
(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.
R/SCR.A/12164/2021 ORDER DATED: 01/03/2023
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 muddamal
vehicle was meant for transfer of goods 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 petitioner
is suffering from many months, therefore, bearing
in mind all such facts and circumstances, the
R/SCR.A/12164/2021 ORDER DATED: 01/03/2023
petitioner has to be given back his muddamal
vehicle with few conditions.
10. Resultantly, this petition is allowed, and the
order dated 13.08.2021 passed by the learned
Sessions Court, Navsari is set aside. The authority
concerned is directed to release the vehicle of
petitioner i.e. Mahindra Bolero Pick Up bearing RTO
Registration No.GJ-23-Y-1056 in the terms and
conditions that the petitioner:
1. Shall furnish a Bank Guarantee of
Rs.10,00,000/- (Rupees ten Lakhs Only) or
bank guarantee of the amount mentioned in the
seizure memo of the vehicle, whichever is
less;
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
R/SCR.A/12164/2021 ORDER DATED: 01/03/2023
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
