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Gujarat High Court · body

2020 DIGILAW 674 (GUJ)

Bilal Ismailbhai Patel v. State Of Gujarat

2020-08-10

SANGEETA K.VISHEN

body2020
ORDER : 1. On the facts and in the circumstances of the case and with the consent of the learned advocates for the respective parties, the petition is taken up for final disposal. 2. Rule. Ms. Nisha Thakor, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent – State. 3. This petition is filed under Articles 226 and 227 of the Constitution of India, inter alia, praying for quashing and setting aside the order dated 5.4.2019 passed by the learned Judicial Magistrate First Class, Garbada as well as the judgment dated 17.7.2019 passed by the learned Additional Sessions Judge, Dahod whereby, the application preferred by the petitioner under the provisions of Section 451 of the Code of Criminal Procedure, 1973 came to be rejected. 4. Tersely stated are the facts: 4.1 The petitioner is the registered owner of the muddamal vehicle – Tata Pick Up bearing registration No.GJ-09-Z-3944 (hereinafter referred to as the 'vehicle in question'). 4.2 On 1.10.2018, First Information Report being C.R.No.II-68 of 2018 came to be registered with Garbada Police Station, District Dahod for the offences under Sections 11(1)(d)(e)(f) of the The Prevention of Cruelty to Animals Act, 1960 and for the offence under Sections 5(1), 6A(3),(4) and Section 8(4) of the Gujarat Animal Preservation (Amendment) Act, 2011. 4.3 It is the case of the petitioner that the petitioner is the registered owner of the vehicle in question and is engaged in the business of transportation. It is stated that at the relevant point of time, when the vehicle in question was intercepted, the vehicle was towed by another vehicle, that is, Mahindra Bolero Pick Up bearing registration No.GJ-20- V-7271. It is further the case of the petitioner that in the said vehicle, that is, Mahindra Bolero Pick Up bearing registration No.GJ-20-V-7271, it was found that cattle were being transported in a cruel manner, without any facility. Accordingly, the aforesaid First Information Report came to be lodged against the unknown accused persons. Apropos the registration of the First Information Report, the vehicle, that is, Mahindra Bolero Pick up bearing registration No.GJ-20-V-7271 as well as the vehicle in question came to be seized by the police personnel and since the date of the seizure, the vehicle in question is lying at Garbada Police Station, District Dahod. 4.3 The aforesaid seizure led to filing of an application being Criminal Misc. 4.3 The aforesaid seizure led to filing of an application being Criminal Misc. Application, Exh.10 in Criminal Case No.147 of 2019 seeking interim custody before the learned Judicial Magistrate First Class, Garbada. However, vide order dated 5.4.2019, the said application Exh.10 came to be rejected. The said order dated 5.4.2019 was unsuccessfully challenged before the court of learned Additional Sessions Judge, Dahod. 4.4 Being aggrieved and dissatisfied, the petitioner has preferred the captioned writ petition with the aforementioned prayers. 5. Mr. S.S. Saiyed, learned advocate for the petitioner, submitted that, undisputedly, the petitioner is the registered owner of the vehicle in question and is engaged in the business of transportation and for which purpose, the vehicle in question is being used. It is submitted that the petitioner was not travelling in the vehicle in question and no offence whatsoever, has been committed by the petitioner. It is submitted that the vehicle in question was being towed by another vehicle, as the same was not in working condition that is, Mahindra Bolero Pick Up bearing registration No.GJ-20-V-7271 wherein, at the time of the commission of the offence cattle were found. However, so far as the vehicle in question is concerned, as is discernible from the First Information Report, nothing incriminating was found from the vehicle in question. It is submitted that the trial is likely to take its own time and vehicle in question, if it is allowed to be kept in the place open to sky, the condition of the vehicle is likely to be deteriorated. It is submitted that the vehicle in question is in custody of the Garbada Police Station since last almost two years, which is likely to cause big loss to the petitioner. It is thus, urged that the muddamal vehicle in question may be released by imposing suitable conditions. 5.1 It is submitted that so far as the other vehicle, that is, Mahindra Bolero Pick Up bearing registration No.GJ-20-V-7271 is concerned and which has been alleged to have been involved in the commission of the offence under the provisions of the Gujarat Animal Preservation (Amendment) Act, 2011, has been released by the co-ordinate Bench vide order dated 28.7.2020 passed in Special Criminal Application No.7611 of 2019. 5.2 It is thus, urged that so far as the vehicle in question is concerned, the same was not even involved in the commission of the offence as is clear from the contents of the First Information Report. In view of the submissions made, it is urged that the present petition may be allowed, releasing the vehicle in question by imposing suitable conditions. It is declared before this court that the petitioner will not misuse the liberty granted by this court. 6. Learned advocate, upon instructions, states before this Court that the petitioner will not misuse the liberty granted by this court and produce the muddamal, i.e. the vehicles in question as and when required during the course of the trial. It is also stated that the muddamal, i.e. the vehicle in question shall not be transferred, alienated or part with. Under the circumstances, it is prayed that the muddamal, i.e. the vehicle in question be released by imposing suitable conditions. 7. On the other hand, Ms. Nisha Thakor, learned Additional Public Prosecutor for the respondent – State has submitted that the vehicle in question was involved in the alleged offence and at this stage, permission for releasing the vehicle in question to the petitioner may not be granted inasmuch as, the courts below have rightly not exercised the powers, releasing the vehicle in question. Ms. Thakor, submitted that in view of the language contained in sub-section (4) of section 6A, when the vehicle or conveyance so seized under sub-section (3), the same shall stand forfeited to the Government in the manner as may be prescribed. However, in view of the special provisions of confiscation, this court, may not exercise the extraordinary jurisdiction releasing the vehicle in question. 8. Heard Mr. S.S. Saiyed, learned advocate for the petitioner and Ms. Nisha Thakor, learned Additional Public Prosecutor for the respondent State through video conference. 9. Pertinently, the petitioner is the registered owner of the vehicle in question, which is clear from the certificate of registration issued by the Transport Department. As is discernible from the contents of the First Information Report, the vehicle in question was towed by another vehicle, that is, Mahindra Bolero Pick Up bearing registration No.GJ-20-V-7271. 9. Pertinently, the petitioner is the registered owner of the vehicle in question, which is clear from the certificate of registration issued by the Transport Department. As is discernible from the contents of the First Information Report, the vehicle in question was towed by another vehicle, that is, Mahindra Bolero Pick Up bearing registration No.GJ-20-V-7271. It is also clear from the contents of the First Information Report that upon inspection, nothing was found from the vehicle in question except the fact that it was being towed by another vehicle. Thus, prima facie, vehicle in question does not appear to have been involved in the commission of the offence under the Gujarat Animal Preservation (Amendment) Act, 2011. However, the vehicle in question is lying idle at Garbada Police Station in the place open to sky since last more than two years. 10. Pertinently, as contemplated under the provisions of Section 451 of the Code, when any property is produced before any criminal court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. 11. The Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2002) 10 SCC 283, has observed and held that to keep such seized vehicles at the police stations for a long period should be avoided and 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. Relevant paragraph 17 reads thus: “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. 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.” The Apex Court, while dealing with the aspect of seized vehicles, has observed that it is of no use to keep such seized vehicles at the police station for a long period. 12. In the subsequent judgment in the case of General Insurance Council and others vs. State of A.P., reported in 2010 AIR SCW 2967, the Apex Court has observed in paragraphs 14 and 15 as under: “14. In our considered opinion, the aforesaid information is required to be utilised and followed scrupulously and has to be given positively as and when asked for by the Insurer. We also feel, it is necessary that in addition to the directions issued by this Court in Sunderbhai Ambalal Desai (Supra) considering the mandate of Section 451 read with Section 457 of the Code, the following further directions with regard to seized vehicles are required to be given. “(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary photographs may be taken duly authenticated and certified, and a detailed panchamama may be prepared before such release. (B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with. (C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer 15. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer 15. It is a matter of common knowledge that as and when vehicles are seized and kept in various police stations, not only they occupy substantial space of the police stations but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. To avoid all this, apart from the aforesaid directions issued hereinabove, we direct that all the State Governments/ Union Territories/Director Generals of Police shall ensure macro implementation of the statutory provisions and further direct that the activities of each and every police stations, especially with regard to disposal of the seized vehicles be taken care of by the Inspector General of Police of the concerned Division/Commissioner of Police of the concerned cities/Superintendent of Police of the concerned district.” 13. The Apex Court has observed that it is a matter of common knowledge that as and when the vehicles are seized and kept in the various police stations, not only they occupy substantial space of the police station, but upon being kept in open are also prone to fast natural decay on account of weather conditions and even a good maintained vehicle loses its road worthiness if it is kept stationary in the police station for more than 15 days. 14. The coordinate bench in the case of Anilkumar Ramlal Ramanlalji Mehta vs. State of Gujarat, rendered in Special Criminal Application No.2185 of 2018, while applying the principles laid down by the Apex Court in the case of Hema Mishra vs. State of Uttar Pradesh, reported in (2014) 4 SCC 453 , exercised the writ powers under Article 226 of the Constitution of India and released the vehicle pending the trial. 15. 15. As discussed herein above, apropos the lodging of the First Information Report, the vehicle in question was seized by the police personnel in connection with the offences registered with Garbada Police Station under the provisions of The Prevention of Cruelty to Animals Act, 1960 and the Gujarat Animal Preservation (Amendment) Act, 2011. Since the seizure, the vehicle in question is kept idle at the police station in the place open to sky, which is likely to reduce the vehicle in question to junk. Thus, applying the aforesaid principles of law to the facts of the present case as well as the declaration recorded of the petitioner through learned advocate in the preceding paragraph, this court is inclined to exercise the powers under Article 226 of the Constitution of India and order the release of the muddamal, that is, Tata Pick Up bearing registration No.GJ-09-Z-3944 on the following conditions that the petitioner shall – (i) furnish a solvent surety of the amount equivalent to the value of the vehicles in question as per the value disclosed in the seizure memo or panchnama; (ii) file an undertaking on oath before the trial court that the petitioner shall not transfer, alienate, part with the possession of the vehicles in question or create any charge over the vehicles in question, till the conclusion of the trial; (iii) produce the vehicles in question as and when the authority or the court concerned directs him to do so. 16. It is clarified that in the event of commission of subsequent repetition of such offence by the petitioner, the vehicles in question shall stand confiscated. 17. With the aforesaid directions and observations, the petition is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.