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2020 DIGILAW 624 (GUJ)

Khalpa Mohsin Nisarbhai v. State of Gujarat

2020-07-23

ASHUTOSH J.SHASTRI

body2020
ORDER : 1. The present petition has been filed under Articles 226 and 227 of the Constitution of India read with Section 451 of the Cr.P.C. for the purpose of seeking following reliefs : “A. That this Hon’ble Court may be pleased to admit and allow this petition. B. This Hon’ble Court may be pleased to call for the record and proceedings of the offence registered as II-CR No.31 of 2019 with Godhra-B Division Police Station, Dist.-Panchmahals and also the record from the Court of Ld. 3rd Additional Chief Judicial Magistrate, at Godhra, Panchmahals and Criminal Revision Application No.33 of 2019 from the court of Ld. 7th Additional District Judge, Panchmahals at Godhra, along with the order passed thereon, and after persuing the same, be pleased to quash and set aside the impugned judgment and order dated 17.12.2019 and 24.1.2020 respectively and further be pleased to release interim custody of muddamal vehicle bearing registration No.GJ-02-X-2441, in favour of the petitioner, upon such appropriate terms and conditions as are deemed fit proper in the interest of justice. C. This Hon’ble Court may be pleased to order that pending admission and/or final disposal of this petition, the muddamal vehicle bearing registration No.GJ-02-X-2441 may be released in favour of the petitioner upon such terms and conditions as are deemed fit proper in the interest of justice. D. This Hon’ble Court may be pleased to grant such other and further relief as may be deemed proper in the facts of the case.” 2. The case of the petitioner is that the petitioner is the registered owner of muddamal vehicle – Mahindra Maxx Pick up Truck which came to be seized in connection with an offence registered on 8.3.2019 being II-CR No.31 of 2019 lodged before Godhra B Division Police Station, Dist.-Panchmahals for the offences punishable under Sections 6(a)(4)(3) and 8(2) of the Gujarat Animal Prevervation Amendment Act, 2017. 3. For the purpose of release of vehicle in favour of the petitioner by way of interim custody, an application was submitted before the 3rd Additional Chief Judicial Magistrate, Godhra which came to be rejected on 17.12.2019. Feeling aggrieved by the said decision, the petitioner preferred Criminal Revision Application No.33 of 2019 which too came to be rejected vide order dated 24.1.2020 by the learned 7th Additional District Judge, Panchmahals at Godhara. Feeling aggrieved by the said decision, the petitioner preferred Criminal Revision Application No.33 of 2019 which too came to be rejected vide order dated 24.1.2020 by the learned 7th Additional District Judge, Panchmahals at Godhara. It is against this orders passed by the courts below, by invoking extraordinary jurisdiction of this Court, a request is made to release the vehicle in question. 4. Mr.S.S.Saiyed, learned advocate appearing on behalf of the petitioner, has submitted that the petitioner is the registered owner of the vehicle in question and is doing the business of transpiration in his goods carriage and when the alleged offence is said to have been committed, he was not present in the State of Gujarat and was at mercy of his man, who might have committed an offence, for which there is no specific knowledge with the petitioner. It has also been submitted that if the vehicle in question is not released, it would remain idle without any income and the condition would also be deteriorated and as such, a request ought to have been considered for release by way of interim measure, upon suitable terms and conditions, upon which the petitioner is ready and willing to abide by. It has further been contended that whatever objectionable muddamal said to have been contained in the vehicle in question, the same has already been recovered by the Investigating Agency and as such, there is no purpose of continuing seizure of vehicle in any form, more particularly when he is ready and willing to maintain the condition and as and when required, he would oblige to present himself before the Court and as such, keeping in view the several decisions delivered by the Apex Court as well as by the Coordinate Benches of this Court, a request is made to release the vehicle even by exercising extraordinary jurisdiction of this Court. To strengthen the submission, learned advocate has relied upon the decisions reported in (2002) SCC (Cri.) 1034, 2003 (2) GLR 1337 . To strengthen the submission, learned advocate has relied upon the decisions reported in (2002) SCC (Cri.) 1034, 2003 (2) GLR 1337 . Additionally, learned advocate has also brought to the notice of this Court the recent decisions which have been delivered by the Coordinate Benches of this Court rendered in SCR.A No.10769 of 2019 decided on 18.6.2020 as well as a decision dated 12.6.2020 rendered in SCR.A No.8727 of 2019 and has requested that since there is a consistent view of release of vehicle, upon some suitable condition to which the petitioner is ready and willing to abide by. Accordingly, a request is made to grant the releif as prayed for. 5. As against this, Mr.J.K.Shah, learned APP, has submitted that this vehicle in question has been intercepted in commission of serious offence, for which the Statute has come out with an amendment as well and, therefore, no lenient view may be taken. However, the learned APP could not withstand to the decisions which have been delivered by the Coordinate Benches of this Court in respect of very same kind of incident and has left it to the discretion of the Court. 6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, prima facie, it appears that the vehicle in question is intercepted in commission of crime and the ownership of the vehicle is not in question at all and further, in similar kind of circumstance, after considering the series of decisions, the Coordinate Benches of this Court have also released the vehicle and there is no other distinguishable material pointed outed by learned APP to deviate from such decisions. Accordingly, a case is made out by the petitioner for release of vehicle by way of interim custody. 7. Additionally, since the Court is relying upon the decision delivered by the Coordinate Bench, some of the observations relevant to the issue, the Court deems it proper to quote hereinafter from a decision dated 18.6.2020 rendered in SCR.A No.10769 of 2019: “8. Heard learned advocate for the applicant and learned APP appearing for the State and perused the material placed on record. Heard learned advocate for the applicant and learned APP appearing for the State and perused the material placed on record. Without determining the other issues raised by the petitioner, in reference to Sections 98 and 99 and other provisions of the said Act and reserving that to be determined in future, in an appropriate proceedings being a contentious issue, this Court choses not to enter into that arena in the present matter and instead exercise the powers under Articles 226 and 227 of the Constitution. 9. This Court (Coram: J.B. Pardiwala, J.) however in the decision relied upon by learnd advocate for the applicant in the case of in ‘ANILKUMAR RAMLAL @ RAMANLALJI MEHTA VS. STATE OF GUJARAT’ (Supra) in Special Criminal Application No. 2185 of 2018, Dated: 05.04.2018, has also returned the vehicle recently under Articles 226 and 227 of the Constitution, exercising its powers to do that even at an initial stage. 9.1 It would be worthwhile to refer profitably at this stage to the observations made by the Apex Court in ‘SUNDERBHAI AMBALAL DESAI VS. STATE OF GUJARAT’ (Supra), which read as under: “15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time. 16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons. 17. In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. 17. In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.” 9.2 In the aforesaid case, the Apex Court has, thus, directed that within a period of six months from the date of production of the vehicle before the Court concerned, needful be done. It even went to the extent of directing that where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. It also directed that before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and a detailed panchnama should also be prepared. The Apex Court also held and specifically directed that concerned Magistrate would take immediate action for seeing that powers under Section 451 of the Code are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. It, therefore, directed that this object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly.” 8. Resultantly, this petition is ALLOWED. It, therefore, directed that this object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly.” 8. Resultantly, this petition is ALLOWED. The authority concerned is directed to RELEASE the vehicle of the petitioner, being Mahindra Maxx Pick up Truck bearing registration No.GJ-02-X-2441, on the terms and conditions that the petitioner: (i) shall furnish, by way of security, bond of Rs.6,00,000/- (Rupee Six Lakh Only) and solvent surety of the equivalent amount; (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 vehicle as and when directed by the trial Court; (iv) in the event of any subsequent offence, the vehicle shall stand CONFISCATED. 9. 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. 10. If, the Investigating Officer 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, accordingly. 12. The applicant is permitted to serve a copy of this order upon the concerned authority through fax, e-mail and/or any other suitable electronic mode.