Gujarat High Court

Ripubhai Nathubhai Baraiya vs State Of Gujarat on 28 March, 2023

Bench: Samir J. Dave

     R/SCR.A/10613/2022                                 ORDER DATED: 28/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 10613 of 2022

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                          RIPUBHAI NATHUBHAI BARAIYA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR DWIJEN S PANDYA(10887) for the Applicant(s) No. 1
MR HARDIK H DAVE(6295) for the Applicant(s) No. 1
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 28/03/2023

                                 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. MAHINDRA SUPRO

MINI TRUCK bearing RTO Registration No.GJ-20-X-0921

in connection with the FIR being

CR.No.11207079220138 of 2022 registered with Halol

Rural Police Station, District- Panchmahal for the

R/SCR.A/10613/2022 ORDER DATED: 28/03/2023

offence punishable under Sections 11(1)(a), 11(1)

(d), 11(1)(e), 11(1)(h), 11(1)(k) of the Prevention

of Cruelty to Animals Act and under sections 5(1),

5(1)(1A), 6A(1), 6A(3), 6A(4), 8(4) of the Gujarat

animal Preservation Act and under sections 96 and

98 of the Transportation of Animals Rules.

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

R/SCR.A/10613/2022 ORDER DATED: 28/03/2023

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

trial Court is just and proper.

7. Having heard the arguments advanced by both

R/SCR.A/10613/2022 ORDER DATED: 28/03/2023

the sides, while determining the other issues

raised by the learned APP 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

R/SCR.A/10613/2022 ORDER DATED: 28/03/2023

vs. State of Gujarat order dated 10.06.2020