Gujarat High Court
Shaikh Agafur Shamsherkhan vs State Of Gujarat on 3 October, 2023
Bench: Sandeep N. Bhatt
NEUTRAL CITATION
R/SCR.A/9146/2021 ORDER DATED: 03/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 9146 of 2021
==========================================================
SHAIKH AGAFUR SHAMSHERKHAN
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR SS SAIYED(3690) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/10/2023
ORAL ORDER
1. The petitioner has filed this petition to invoke inherent
jurisdiction vested under Articles 226 and 227 of the
Constitution of India and read with Sections 451 and 482 of
the Code of Criminal Procedure to release the muddamal
vehicle being TATA Truck bearing RTO Registration No.RJ-
04-GA-0488 in connection with the FIR being
CR.No.11192008200074 of 2020 registered with Bavla Town
Police Station, Ahmedabad (Rural) for the offence punishable
under the provisions of the Gujarat Animal Preservation Act,
Prevention of Cruelty to Animal Act, 1960 and under the
provisions of the Motor Vehicles Act.
2. Heard learned advocates for the parties.
NEUTRAL CITATION
R/SCR.A/9146/2021 ORDER DATED: 03/10/2023
undefined
3. 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 Constitution of India on suitable terms and
conditions.
4. 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.
5. 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
NEUTRAL CITATION
R/SCR.A/9146/2021 ORDER DATED: 03/10/2023
undefined
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.
6. Having heard the arguments advanced by both 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.
7. 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.
NEUTRAL CITATION
R/SCR.A/9146/2021 ORDER DATED: 03/10/2023
undefined
(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 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.
NEUTRAL CITATION
R/SCR.A/9146/2021 ORDER DATED: 03/10/2023
undefined
(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
8. This Court notices that the petitioner is the owner of
the muddmal vehicle and 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 due to seizure of the captioned
muddamal vehicle the 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.
NEUTRAL CITATION
R/SCR.A/9146/2021 ORDER DATED: 03/10/2023
undefined
9. Resultantly, this petition is allowed, and the
orders dated 11.09.2020 passed by the learned Magistrate,
and 10.12.2020 passed by the learned 6
th
Additional Sessions
Judge, Ahmedabad (Rural) in Criminal Revision Application
No.127 of 2020 are set aside. The authority concerned is
directed to release the vehicle of petitioner, being TATA
Truck bearing RTO Registration No.RJ-04-GA-0488 on 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 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.
NEUTRAL CITATION
R/SCR.A/9146/2021 ORDER DATED: 03/10/2023
undefined
5. The trial Court shall verify the ownership of the
vehicle before releasing the same.
10. 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.
11. 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.
Direct Service is permitted.
(SANDEEP N. BHATT,J)
R.S. MALEK
