Gujarat High Court
Gopalbhai Bhagwanbhai Algotar vs State Of Gujarat on 18 October, 2023
Bench: Sandeep N. Bhatt
NEUTRAL CITATION
R/SCR.A/9962/2021 ORDER DATED: 18/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 9962 of 2021
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GOPALBHAI BHAGWANBHAI ALGOTAR
Versus
STATE OF GUJARAT
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Appearance:
MR S D MOGHARIYA(11273) for the Applicant(s) No. 1
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/10/2023
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 Section 482 of the Code
of Criminal Procedure to release the muddamal vehicle
bearing RTO Registration No.GJ-04-AW-5044 in connection
with the FIR being CR.No.11215029210273 of 2021 registered
with Tarapur Police Station, Anand 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.
3. Learned advocate for the petitioner has submitted that
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R/SCR.A/9962/2021 ORDER DATED: 18/10/2023
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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
Ghanshyamsingh Mobatsingh vs. State of Gujarat in Special
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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.
(b) In case of Saramanbhai Devsibhai Barad vs. State of
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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.
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(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 said muddmal vehicle was
meant for transfer and further this offence was not as per
instructions of present petitioner to the driver, 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 the captioned
muddamal vehicle was used by employee of the petitioner
and 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.
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9. Resultantly, this petition is allowed, and the
orders dated 30.7.2021 passed by the learned Addl. Chief
Judicial Magistrare, Tarapur and 27.8.2021 passed by the
learned Addl. Sessions Judge, Khambhat in Criminal Rivision
Application No.11 of 2021 are set aside. The authority
concerned is directed to release the vehicle of petitioner,
bearing registration number GJ-04-AW-5055 in 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.
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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. Rule
is made absolute. Direct Service is permitted.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
