Gujarat High Court
Salim Ismail Nalbandh vs State Of Gujarat on 5 January, 2024
NEUTRAL CITATION
R/SCR.A/6809/2021 ORDER DATED: 05/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 6809 of 2021
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SALIM ISMAIL NALBANDH
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR N M SHAIKH(6124) for the Applicant(s) No. 1
MR PARVEZ A PATHAN(10862) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/01/2024
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor
waives service of notice of Rule for respondents.
2. The petitioner has preferred this petition,
seeking to invoke extraordinary jurisdiction of this Court
under Article 226 and supervisory jurisdiction under
Article 227 of the Constitution of India for the release
of the muddamal vehicle bearing Registration No.GJ-06-
V-5307 and to quash and set aside the impugned orders
dated 01.02.2021 passed by the learned 4
th
Additional
Chief Judicial Magistrate, Bharuch below application for
release of Muddamal and dated 31.03.2021 passed by
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R/SCR.A/6809/2021 ORDER DATED: 05/01/2024
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the learned Sessions Judge, Bharuch in Criminal
Revision Application No.9 of 2021, whereby refusing to
release the muddamal vehicle.
3. Learned advocate for the petitioner submitted
that on registration of the FIR being C.R.-II No.57 of
2019 registered with Bharuch City 'A' Division Police
Station, Bharuch for the offences punishable under
Sections 11(1)(D), 11(1)(H), 11(1)(E) of the Animal
Cruelty Act and Sections 5, 7, 1, 2 and 3 of the
Animal Preservation Act, Section 114 of the Indian
Penal Code and Section 192 of the Motor Vehicles Act,
the vehicle of the petitioner has been seized as
muddamal in connection with the aforesaid offence,
however, the said vehicle is duly registered with the
transport department of the Government and in support
of it, RC Book is placed on record.
4. Learned advocate for the petitioner submitted that
for the release of the vehicle in question, the petitioner had
approached the concerned Magistrate Court, however, the said
application came to be rejected by an order dated 01.02.2021
and, hence, the petitioner had approached the concerned
Sessions Court against the said order, which also came to be
rejected by an order dated 31.03.2021 and, therefore, the
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present petition is filed for the release of the vehicle in
question. He further, under the instructions, submitted that
the petitioner is the registered owner of the vehicle in
question and till date, the vehicle in question is not involved
in any other case and even no one has claimed for the
interim custody of the muddamal vehicle and if the interim
custody of the said vehicle is handed over to the petitioner,
he will abide by the conditions that may be imposed by this
Court while handing over the vehicle. He, therefore, urged
that this petition may be allowed on suitable conditions.
5. Learned advocate for the petitioner has urged that
this Court has wide powers, while exercising such powers
under Article 226 of the Constitution. It can also take into
account the ratio laid down in the case of ' SUNDERBHAI
AMBALAL DESAI VS. STATE OF GUJARAT', reported in
AIR 2003 SC 638, wherein, the Apex Court lamented the
scenario of number of vehicles having been kept unattended
and becoming junk within the police station premises.
Learned advocate has also placed reliance upon the orders
passed by the Coordinate Bench of this Court.
6. Learned APP for the respondent-State has strongly
objected the submissions made by learned advocate for the
petitioner and submitted that the vehicle in question was
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used for transporting animals illegally by the accused and if
this motor vehicle would be released, it may be used for
transporting the same by the petitioner. However after
referring to the documents produced on record with regard to
registration of certification and Identity Card, it is submitted
that the petitioner is the owner of the vehicle.
7. On thus hearing both the sides, this Court is of
the opinion to exercise the powers under Articles 226 and
227 of the Constitution in favour of the applicant at this
stage.
8. Further, from the submissions canvassed by
learned advocate for the petitioner, it is revealed that if the
vehicle in question is not released, ultimately it would reduce
to scrape and further the land / space of the campuses of
police stations are also reduced to scrapyards. As against
this, continuing the vehicle in police custody as muddamal,
for various reasons, hardly turns out to be a factor for
furtherance of dispensation of justice, on conclusion of the
trial, as and when that stage is reached.
9. The Co-ordinate Benches of this Court in number
of cases, some of which are noted above, have released the
vehicles. This Court has taken into consideration those
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decisions and the judgments / orders referred in those
decisions. Having considered the same, taking any different
view would not be proper.
10. Resultantly, this application is allowed. The
impugned orders dated 01.02.2021 passed by the learned 4
th
Additional Chief Judicial Magistrate, Bharuch below
application for release of Muddamal and dated 31.03.2021
passed by the learned Sessions Judge, Bharuch in Criminal
Revision Application No.9 of 2021 are hereby quashed and
set aside. The authority concerned is directed to release the
vehicle of the petitioner, muddamal vehicle i.e. bearing
Registration No.GJ-06-V-5307, on the terms and conditions
that the petitioner shall :
(i) 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;
(ii) 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;
(iii) shall also file an undertaking to produce the
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vehicle as and when directed by the trial
Court;
(iv) in the event of any subsequent offence, the
vehicle shall stand confiscated .
(v) shall not use this vehicle in transporting
liquor in future.
(vi) 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.
(vii) If, the IO finds it necessary, videography of
the vehicle also shall be done. Expenses
towards the photographs and the videography
shall be borne by the petitioner.
11. Rule is made absolute to the aforesaid
extent. Direct service is permitted. Registry to
communicate this order to the concerned Court/
authority forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
