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2020 DIGILAW 769 (GUJ)

Dhanjibhai Arjanbhai Makwana v. State of Gujarat

2020-09-16

ASHOKKUMAR C.JOSHI

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JUDGMENT : ASHOKKUMAR C. JOSHI, J. 1. The petitioner has filed this petition seeking 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-Tractor bearing RTO Registration No. GJ-14-AK-4366 in connection with the FIR being C.R. No. 11193004200623 of 2020 before the Amreli (Rural) Police Station, District-Amreli for the offences punishable under Section 379 of the Indiand Penal Code and under Section 21 of Mines and Minerals (Development and Regulation) Act. 2. Heard learned advocate Mr. Javed Qureshi for the petitioner and Mr. H.K. Patel, learned APP for the respondent State through video conference. 3. The petitioner has prayed for following reliefs, which are as under: “(b) Your Lordships be pleased to direct the Respondent No. 2 to released the vehicle of petitioner being GJ-14-AK-4366 by deleting/or modify the condition No. 3 which has been imposed in the order dated 19.06.2020 passed by JMFC, Amreli for depositing bank guaranty before concerned authority. (c) Your Lordships be pleased to direct the Respondent No. 2 to release the vehicle of the petitioner on any suitable terms and conditions as he is ready to abide suitable term which may be imposed on him. (d) Pending the hearing and final disposal of the petition direct the concerned authority to accept the bond from the petitioner and release the vehicle in question on appropriate condition.” Factual Matrix of the Case: 4. The fact in nutshell is that the petitioner herein is the owner of tractor bearing Registration No. GJ-14-AK-4366. It is a matter of record that a complaint under the IPC as well as under the Mines and Minerals Development Act registered against present petitioner and raid conducted by the Amreli Rural Police Station and ultimately resulting into FIR for the offences under Section 379 of the IPC as well as under Section 21 of the Mines and Minerals Act. It is further contended that after lodging the complaint and detaining the vehicle of the petitioner, the petitioner has approached JMFC, Amreli for releasing of his tractor and learned JMFC has allowed the application of the petitioner and has put one condition to put some bank guarantee and then vehicle of the petitioner will be released. It is further contended that after lodging the complaint and detaining the vehicle of the petitioner, the petitioner has approached JMFC, Amreli for releasing of his tractor and learned JMFC has allowed the application of the petitioner and has put one condition to put some bank guarantee and then vehicle of the petitioner will be released. Thereafter, the petitioner preferred Revision Application before learned Sessions Court, Amreli being Criminal Revision Application No. 19 of 2020 and the same was rejected by the learned Sessions Court. 5. Learned advocate for the petitioner has further contended that the muddamal Tractor is the only means of livelihood of the petitioner and his family. Moreover, since long, the said Tractor has been taken as muddamal, therefore, there is no earning source of income for the petitioner. It is further urged that because of imposing strict condition of furnishing unconditional bank guarantee to the tune of 1.5 times of the value of the muddamal Tractor would be extremely higher and almost impossible for the petitioner to pay. 6. 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, AIR 2003 SC 638 and Smt. Basava Kom Dyaman Gauda Patil vs. State of Mysore, (1977) 4 SCC 358 , wherein the captioned mudamal has been released. 7. Learned advocate for the petitioner heavily placed reliance upon the judgments of 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 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. (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 dated 20.07.2020 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 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. 8. It is also urged that petitioner has only the captioned muddamal Tractor for livelihood and source of income, further other strict conditions have been imposed and the said condition having been found to be too harsh, the petitioner is left with no other alternate but to challenge by way of present petition. Therefore, to that extent conditions may be modified. 9. Per contra, learned APP Mr. Patel has heavily opposed and placed 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 and taken this Court at relevant Para Nos. 10 and 15 and contended that Bank Guarantee to the tune of 1.5 time of value of vehicle is just and proper, therefore, order of the trial Court is not required to be modified. 10. 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 Others 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. 11. 11. This Court has also assistance of judgments and orders passed by the Co-ordinate Bench of this Court, which are as under: (k) 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. (l) In case of Saramanbhai Devsibhai Barad vs. State of Gujarat order dated 10.06.2020 passed in Special Criminal Application No. 8601 of 2019. (m) In case of Mahesh Mansukhbhai Dholaria vs. State of Gujarat order dated 19.08.2019 passed in Special Criminal Application No. 7806 of 2019. (n) In case of Anirrudhsinh Pravinsinh Jadeja vs. State of Gujarat order dated 10.08.2018 passed in Special Criminal Application No. 6039 of 2018. (o) 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. (p) In case of Smitaben Kalpeshbhai Chaudhary vs. State of Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2851 of 2020. (q) In case of Jignasha Kalpeshbhai Prajapati thro POA Kalpeshbhai Bhagwanbhai Prajapati vs. State of Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2896 of 2020. (r) In case of Devabhai Ranchhodbhai Ahir vs. State of Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2853 of 2020. (s) 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. (t) 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. 12. This Court notices that the said Tractor 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 Tractor with few conditions since conditions imposed by trial Court appear too harsh. Therefore, when the Co-ordinate Bench passed many orders in similar set of circumstances and released vehicles/ machinery, this Court is also inclined to modify the conditions, considering the fact that the petitioner is ready to compound the offence by depositing the fine amount. The petitioner is permitted to deposite an amount and bank guarantee as per value of vehicle shown in Panchnama or seizure memo, instead of 1.5 times value of seized vehicle. 13. Resultantly, in-fleri this petition is partly allowed, the authority concerned is directed to release the vehicle of petitioner Tractor bearing RTO Registration No. GJ-14-AK-4366 in the terms and conditions that the petitioner: 1. Shall furnish, bank guarantee as per Panchnama or seizure memo as well as personal bond and surety of like amount instead of furnishing the Bank Guarantee to the tune of 1.5 times of the value of the vehicle. 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 illegal activity by the present petitioner then this order shall stand cancel and the vehicle will be seized. 14. 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. 15. 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. 16. This petition is partly allowed. Rule is made absolute. The Registry is directed to communicate this order by Fax/by E-mail to the concerned Court and Police Station.