Bhikha Taiyabbhai Abdulmajid vs State Of Gujarat
2023 Latest Caselaw 2340 Guj

Citation : 2023 Latest Caselaw 2340 Guj
Judgement Date : 17 March, 2023

Gujarat High Court

Bhikha Taiyabbhai Abdulmajid vs State Of Gujarat on 17 March, 2023

Bench: Samir J. Dave

     R/SCR.A/3404/2023                                 ORDER DATED: 17/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 3404 of 2023
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                         BHIKHA TAIYABBHAI ABDULMAJID
                                     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 M. H. BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 17/03/2023

                                 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 Tempo

bearing RTO Registration No.GJ-18-T-1901 in

connection with the FIR being CR.No.11187005200137

of 2020 registered with Kothamba Police Station,

District- Mahisagar for the offence punishable

R/SCR.A/3404/2023 ORDER DATED: 17/03/2023

under Sections 3, 11(1)(d), 11(1)(e), 11(1)(a),

11(1)(h), 11(1)(k) of the Prevention of Cruelty to

the Animals Act and sections 5, 6, 8, 6(A), 6(B)

of Animal Preservation 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

R/SCR.A/3404/2023 ORDER DATED: 17/03/2023

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

R/SCR.A/3404/2023 ORDER DATED: 17/03/2023

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