Gujarat High Court
Balubhai Ramubhai Choudhary vs State Of Gujarat on 24 January, 2024
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R/SCR.A/13778/2023 ORDER DATED: 24/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 13778 of 2023
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BALUBHAI RAMUBHAI CHOUDHARY
Versus
STATE OF GUJARAT
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Appearance:
MS DIPSIKHA P MISHRA for MR KT BELADIYA(9101) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR RONAK RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 24/01/2024
ORAL ORDER
RULE. Learned APP waives notice of rule for and on behalf
of the respondents.
[1.0] 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 so also inherent powers of this Court under Section 482 of
the Code of Criminal Procedure, 1973 with a prayer to release
Muddamal Vehicle i.e TATA Tempo bearing RTO registration
No.GJ-30-T-0810.
[2.0] The case of the prosecution is that while the police
personnel were on patrolling, they received a secret information
of the vehicle in question carrying animals and when police
authorities intercepted the same, on carrying out the search of
the said vehicle, its driver was found carrying animals without any
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pass or permit. Therefore, an FIR being C.R. No.11822004210532
of 2021 came to be registered with Khergam Police Station,
District Navsari for the offence punishable under the
Prevention of Cruelty to Animals Act, 1960, the Animal
Protection Act and the Motor Vehicles Act.
[3.0] Heard learned advocate for the petitioner and learned APP
for the respondents.
[4.0] Learned Advocate for the petitioner has urged that this
Court has wide 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 Hon'ble Apex Court lamented the
scenario of number of vehicles having been kept unattended and
becoming junk within the police station premises.
[5.0] Learned APP for the respondents has objected the
submissions made by learned advocate for the petitioner and
urged that of course, powers of this Court under Article 226 of
the Constitution to order release of the vehicle can be exercised
at any time, whenever the Court deems it appropriate but this is
not a fit case to exercise the jurisdiction and hence, requested to
dismiss the petition.
[6.0] It appears that in the present case, Section 6(A) of the
Prevention of Cruelty to Animals Act, 1960, is also involved.
There is no presumption that the vehicle has been used for
slaughtering purposes. It further appears that the Co-ordinate
Bench of this Court, as well as this Court itself, has time and again
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directed the police authority to verify whether proceedings of
confiscation have commenced or not. The Court also warned the
Investigating Officer that non-observance of this order shall be
viewed seriously. Today, when the matter is taken up for hearing,
laerned APP under the instructions states that no confiscation
proceedings are initiated till date. Therefore, the Court has no
option but to release the vehicle.
[7.0] Prima-facie, there is nothing to show that the cow proginy
were being transported for the purpose of slaughter. The mere
bald assertion on the part of the police in that regard would not
be sufficient to attract the provision of Section 6A of the Act
which imposes a bar for release of the vehicle for a period of six
months from the date of the seizure.
[8.0] This Court has relied on judgment passed by the coordinate
Bench of this Court in the case of Arvindkumar Babulal
Khandelval v. State of Gujarat, reported in ABC 2015 (II0 363
GUJ wherein it is observed as under:
"8. The moot question is whether the provisions of
section 6(A) clause (4) applies in the facts and
circumstances of the case. Section 6(A) clause (1)
reads as under:
(1) No person shall transport or offer for transport
or cause to be transported any animal specified in
subsection (1A) of section 5 from any place within the
State to any another place within the State for the
purpose of its slaughter in contravention of
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the provisions of this Act or with the knowledge that
it will be or is likely to be so slaughtered: Provided
that a person shall be deemed to be transporting such
animal for the purpose of slaughter unless contrary is
proved thereto to the satisfaction of the
concerned authority or officer by such person or he
has obtained a permit under subsection (2) for
transporting animal for bona fide agricultural or
animal husbandry purpose from such authority or
officer as the State Government may appoint in this
behalf."
A restriction under the Prevention of Cruelty to Animals Act
to release the vehicle would apply only in a case where the
animals are being transported for the purpose of slaughter.
Herein, no such case of prosecution. Even, till date no
proceedings for confiscation of the vehicle being initiated. In
view of above, there is no bar to invoke the powers under Section
451 of the CrPC also.
[9.0] In the result, this petition is allowed. The impugned orders
passed by the courts below are hereby quashed and set aside.
It is ordered that the vehicle in question i.e. TATA Tempo
bearing RTO registration No.GJ-30-T-0810 shall be released
subject to the following terms and conditions;
(i) The petitioner shall execute a bond within a period of one
week from today for the production of the vehicle
so released, if and when required before the Court
having jurisdiction to try the offence on account of such
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seizure;
(ii) The petitioner shall not indulge in any such illegal activity
of transportation of the animals;
(iii) The petitioner shall not sell, transfer or alienate
the vehicle in any manner till the final conclusion of
the trial pending in the court of the Judicial Magistrate.
[10.0] Before release of the vehicle, concerned police
authority shall take photographs / identity of the vehicle from all
sides at the cost of the petitioner and shall draw necessary
panchanama to that effect. Said panchanama and photographs
shall be part of charge sheet papers for the purpose of trial.
[11.0] Copy of this order be send to concerned RTO, where
the vehicle is registered, for necessary entry in the Register and
to take notice that this Court has restrained transfer of vehicle
till final disposal of the trial. Such transfer shall be subject to any
order that may be passed by the learned Trial Court permitting
transfer of vehicle.
[12.0] Rule is made absolute accordingly. Direct service is
permitted.
(HASMUKH D. SUTHAR, J.)
Ajay
