Gujarat High Court

Mohammadirfan Mohammadsaid ... vs State Of Gujarat on 9 March, 2023

Bench: Samir J. Dave

     R/SCR.A/7225/2022                               ORDER DATED: 09/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 7225 of 2022

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               MOHAMMADIRFAN MOHAMMADSAID MITHABHAI
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR. ALTAF Y CHARKHA(7271) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 09/03/2023
                               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 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 409 TEMPO

bearing RTO Registration No.GJ-3-X-1630 in

connection with the FIR being CR.No.II-23 of 2019

registered with Kathamba Police Station, District-

Mahisagar for the offence punishable under Sections

11(d)(e)(f)(h) of the Prevention of Animal Cruelty

R/SCR.A/7225/2022 ORDER DATED: 09/03/2023

Act and section 3 of the Cattle Tresspass Act and

under sections 5, 6, 8, 6(A) and 6(B) of the Animal

Preservation Act.

3. Heard learned 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

R/SCR.A/7225/2022 ORDER DATED: 09/03/2023

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

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

R/SCR.A/7225/2022 ORDER DATED: 09/03/2023

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.

6957 of 2019.

(b) In case of Saramanbhai Devsibhai Barad

vs. State of Gujarat order dated 10.06.2020