Gujarat High Court
Ajaygiri Popatgiri Goswami vs State Of Gujarat on 2 March, 2023
Bench: Samir J. Dave
R/SCR.A/2793/2023 ORDER DATED: 02/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2793 of 2023
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AJAYGIRI POPATGIRI GOSWAMI
Versus
STATE OF GUJARAT
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Appearance:
JAY R SHAH(8428) for the Applicant(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 02/03/2023
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.
Chhota Hathi bearing RTO Registration No.GJ-04-W-
3705 in connection with the FIR being C.R.No.
11215029210286 of 2021 registered with TARAPUR
Police Station, District- Anand for the offence
punishable under Sections 117 OF THE Motor Vehicle
R/SCR.A/2793/2023 ORDER DATED: 02/03/2023
Act and under sections 3, 11(1)(d), 11(1)(e), 11(1)
(f) of the Prevention of Cruelty to animals Act and
under sections 5(1), 6(a)(1), 8 of the Gujarat
Prevention Act.
3. Heard learned learned advocates for the
parties
4. Learned advocate for the petitioner has
submitted that offence under the Prevention of
Cruelty to Animals Act, so it is a compoundable
offence. He has further contended that the muddamal
vehilce is the only means of livelihood of the
petitioner and his family.
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 muddamal has been released.
R/SCR.A/2793/2023 ORDER DATED: 02/03/2023
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.
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
R/SCR.A/2793/2023 ORDER DATED: 02/03/2023
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.
R/SCR.A/2793/2023 ORDER DATED: 02/03/2023
(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 muddamal
vehicle was meant for transfer of material from
legal mines 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
R/SCR.A/2793/2023 ORDER DATED: 02/03/2023
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 08.12.2022 passed by the learned
Judicial Magistrate First Class, Tarapur and the
order dated 16.01.2023 passed by the learned 6th
Additional Sessions Judge, Khambhat, District Anand
are set aside. The authority concerned is directed
to release the vehicle of petitioner Chhota Hathi
bearing RTO Registration No.GJ-04-W-3705 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
R/SCR.A/2793/2023 ORDER DATED: 02/03/2023
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
