Gujarat High Court
Shakil Shafi Kureshi vs State Of Gujarat on 2 September, 2023
Bench: Samir J. Dave
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R/SCR.A/11306/2023 ORDER DATED: 02/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11306 of 2023
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SHAKIL SHAFI KURESHI
Versus
STATE OF GUJARAT
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Appearance:
MR. SOEB R. BHOHARIA(2205) for the Applicant(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1 AND 2
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 02/09/2023
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule for and
on behalf of the respondents.
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. MAXY
BINDAAS CARGO M TEC OF CONTINENTAL ENGINES PRVT LTD
bearing RTO Registration No. GJ-27-TB-3736 in connection with
the FIR being CR.No.11191016230146 OF 2023 registered with
Paldi Police Station, District Ahmedabad City for the offence
punishable under Sections 5, 6(A), 8(1) of the Animal Protection
Act, Sections 11(A)(D)(E)(F)(H) of the Prevention of Cruelty to
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Animal Act and Sections 192 and 116 of the MV 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 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
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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 Mines Act and also 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 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.
(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
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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
9. This Court notices that the said muddmal vehicle was
meant for transfer of material from legal mines 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.
10. Resultantly, this petition is allowed, and the order dated
15.07.2023 passed by learned Addi. Chief Metropolitan
Magistrate, Court No. 12, Ahmedabad below application of
muddamal as well as order dated 9 th August 2023 passed by
learned In charge Additional Sessions Judge, Court No. 16, City
Civil and Sessions Court, Ahmedabad in Criminal Revision
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Application No. 275 of 2023 stand quashed. The authority
concerned is directed to release the vehicle of petitioner, MAXY
BINDAAS CARGO M TEC OF CONTINENTAL ENGINES PRVT LTD
bearing RTO Registration No. GJ-27-TB-3736 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.
5. The trial Court shall verify the ownership of the vehicle
before releasing the same.
11. Before handing over the possession of the vehicle to the
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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.
12. 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.
(SAMIR J. DAVE,J)
K. S. DARJI
