Dahyabhai Jesingbhai Patel vs State Of Gujarat
2023 Latest Caselaw 2210 Guj

     R/SCR.A/1860/2023                                   ORDER DATED: 13/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 1860 of 2023

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                         DAHYABHAI JESINGBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR ADIL R MIRZA(2488) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 13/03/2023
                                 ORAL ORDER

1. RULE. Learned Additional Public Prosecutor waives service on behalf of the respondent State.

2. By way of this petition, the petitioner has prayed to quash and set aside order dated 09/01/2023 passed by learned In-charge Principal Sessions Judge, Navsari in Criminal Revision Application No.67 of 2022 as well as order dated 20/09/2022 passed by learned Additional Chief Judicial Magistrate, Gandevi in Gandevi Part-B-C.R.No.1334 of 2022 and further be pleased to direct the concerned respondent to release the vehicle being Tata ACE Tempo bearing registration no.GJ-15-AT-2656 which has been seized in connection with the FIR being Part-B-

C.R.No.11822012221334 of 2022 registered with Gandevi Police Station, District Navsari for the offences punishable under Sections 6A(1)(3)(4), 8(4) and 10 of the Gujarat Animal

R/SCR.A/1860/2023 ORDER DATED: 13/03/2023

Preservation (Amendment) Act, 1954 and of Gujarat Animal Preservation (Amendment) Act, 2011 and of Gujarat Animal Preservation (Amendment) Act, 2017 read with Section 11(1)

(d)(e)(f)(g) of the Prevention of Animal From Cruelty Act, 1960 as well as Section 192 of the Gujarat Motor Vehicles Act.

3. The facts in brief of the case are that the vehicle of the petitioner is used for transporting animal being one cow without pass and permit and, therefore, the vehicle in question also came to be seized in connection with the offence alleged.

4. Learned advocate for the petitioner submitted that pursuant to the registration of the complaint, the aforesaid muddamal vehicle was transporting animal without pass and permit and thereby the same also came to be seized. It is also submitted that the petitioner is the registered owner of the aforesaid muddamal vehicle which was never being used for any illegal purpose.

4.1. Learned advocate for the petitioner submitted that the petitioner is the owner of the vehicle in question and he has also been named in the complaint. The copy of the certificate of registration has been produced on record to prove the aspect of ownership.

5. Learned Additional Public Prosecutor, submitted that any vehicle would stand forfeited with the Government if it is found to be carrying cattle for any illegal purpose and herein

R/SCR.A/1860/2023 ORDER DATED: 13/03/2023

the present case, the petitioner was found transporting animal being one cow at the relevant point of time and therefore, the courts below were justified in rejecting the application filed by the petitioner. It is, therefore, prayed that the present petition deserves to be rejected.

6. Heard learned advocates on both the sides and perused the documents on record. Considering the facts of the case, a reference to the provisions of Section 451 Cr.P.C. would be apposite:

"451. Order for custody and disposal of property pending trial in certain cases:

When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation--For the purposes of this section, "property" includes-- (a) property of any kind or document which is produced before the Court or which is in its custody.

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."

7. Section 451 of the Cr.P.C. mandates that when any property is produced before any criminal court during the trial, the Court may make order for the proper custody of such property pending the conclusion of the trial. The object of Section 451 Cr.P.C. is well defined by the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, 2003(1) G.L.H. 307, wherein the Hon'ble Apex Court have extracted Para - 4 of the judgment delivered in the

R/SCR.A/1860/2023 ORDER DATED: 13/03/2023

case of Smt. Basava Kom Dyamangouda Patil vs. State of Mysore and Another [(1977) 4 SCC 358] , as under:

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject- matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place, it may be returned during any inquire or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance. The court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the state or its officers had taken due care and caution to protect the property, the magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest."

8. In the present case, it appears that the vehicle seized is not used for any illegal activity but the vehicle in which the animal was to be transported was not having pass or permit for transportation of the animal. This Court finds no reasons to disbelieve the say of the petitioner for release of the vehicle in question.

9. It is an admitted position that the vehicle in question stands registered in the name of the petitioner herein and the petitioner is also named in the FIR.

R/SCR.A/1860/2023 ORDER DATED: 13/03/2023

10. Considering the facts and circumstances of the case and in view of the principle laid down by the Apex Court in Sunderbhai Ambalal Desai's case, this Court is of the opinion to exercise description in favour of the petitioner for releasing the vehicle in question.

11. In the result, the petition is allowed. Order dated 09/01/2023 passed by learned In-charge Principal Sessions Judge, Navsari in Criminal Revision Application No.67 of 2022 as well as order dated 20/09/2022 passed by learned Additional Chief Judicial Magistrate, Gandevi in Gandevi Part- B-C.R.No.1334 of 2022 are quashed and set aside. The concerned respondent authority is directed to forthwith release the muddamal vehicle being Tata ACE Tempo bearing registration no.GJ-15-AT-2656 which has been seized in connection with the FIR being Part-B-

C.R.No.11822012221334 of 2022 registered with Gandevi Police Station, District Navsari, in favour of the petitioner, on the terms and conditions that the petitioner:

(a) shall furnish a solvent surety equivalent to the present value of the muddamal vehicle in question as per the the value disclosed in the seizure memo or panchnama to the satisfaction of the trial court concerned.

(b) shall not sell, transfer or alienate the vehicle in question in any manner pending the trial.

R/SCR.A/1860/2023 ORDER DATED: 13/03/2023

(c) shall produce the vehicle as and when directed by the trial court.

(d) if the I. O. finds use of vehicle in such anti-social, illegal activity by the present petitioner then this order shall stand cancelled and the vehicle in question shall be seized.

(e) the trial Court shall verify the ownership of the vehicle before releasing the same.

12. Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and detailed panchnama in that regard, if not already drawn, shall be drawn for the purpose of trial. If the Investigating Officer finds it necessary, videography / photography of the vehicle shall also be done and the expenses thereof shall be borne by the petitioner.

13. Present petition stands disposed of. Rule is made absolute to the above extent.

Direct service is permitted.

(SAMIR J. DAVE,J) ILA