Gujarat High Court
Anwar Sajan Mokha vs The State Of Gujarat on 28 October, 2020
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/SCR.A/5576/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5576 of 2020
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ANWAR SAJAN MOKHA
Versus
THE STATE OF GUJARAT
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Appearance:
MR A A ZABUAWALA(6823) for the Applicant(s) No. 1
MS MAITHILI MEHTA APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE R.P.DHOLARIA
Date : 28/10/2020
ORAL ORDER
[1] Rule. Learned APP waives service of notice of rule for the respondent State.
[2] What is challenged in the present writ petition under Articles 226 & 227 of the Constitution of India is the order dated 04.09.2020 passed by learned 3rd Additional Sessions Judge, Bhuj- Kachchh as well as the order dated 09.07.2020 passed by learned Chief Judicial Magistrate, Bhuj-Kachchh rejecting the prayer of handing over the muddamal vehicle having its registration No. GJ-12-DR-1145 in connection with the FIR being C.R.No. 11205042200155 of 2020 registered with A Division Police Station, Kachchh for the offence under the provisions of Sections 295-A, 429, 114 of the Indian Penal Code, Sections 5(1), 6(B)(1), 8(2) of the Gujarat Animal Preservation Act and Section 11(1)(L) of the Animal Cruetly Act, 1960. Being aggrieved by the same, the petitioner has preferred the present petition under Article 227 of the Constitution of India.
[3] It is contended by learned advocate for the petitioner that learned trial Court as well as revisional Court have not handed over Page 1 of 3 Downloaded on : Thu Oct 29 12:44:24 IST 2020 R/SCR.A/5576/2020 ORDER interim custody of the vehicle in question in view of the provisions of Section 98 of the Act which provides embargo for handing over the custody of the vehicle used in the offence pending the trial. It is, therefore, requested that appropriate directions should be given to the concerned Magistrate/Trial Court who is dealing with such questions to hand over such vehicle to its owner or to the person from whom the said vehicle is seized by taking appropriate bond/guarantee/solvent surety for the return of the said vehicle if required by the Court at any point of time.
[4] On the other hand, learned APP vehemently submitted that there is embargo under Section 98 of the Act to release the muddamal vehicle used in the offence and while interpreting the provisions of law, the Co-ordinate Bench of this Court in the case of Pareshkumar Jaykarbhai Brahmbhatt Vs. State of Gujarat decided on 15.12.2017 held that in view of the embargo, the Magisterial Court as well as Revisional Court have no jurisdiction to handover custody of the vehicle used in the offence as per the provisions of Section 451 of the Code of Criminal Procedure, 1973. Lastly, he requested this Court to dismiss the present petition in limine.
[5] Considering the facts and circumstances of the present case and the arguments advanced by learned advocate for the parties, it can be seen that the present matter is squarely covered by the decision rendered by this Court in Special Criminal Application No. 7642 of 2018 (Hardikbhai Mukeshbhai Chauhan Vs. State of Gujarat) decided on 05.09.2018.
[6] In the result, this application is allowed. The learned trial Court concerned is directed to immediately release the vehicle in question bearing C.R.No. 11205042200155 of 2020 registered with A Page 2 of 3 Downloaded on : Thu Oct 29 12:44:24 IST 2020 R/SCR.A/5576/2020 ORDER Division Police Station, Kachchh after due verification as well as learned Magistrate shall inquire as regards entitlement as to whether he is the owner of vehicle or not and following the procedure as it thinks necessary as provided under section 451 of the Code of Criminal Procedure 1973 and on the petitioner fulfilling the following conditions:
(i) The petitioner shall 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) The petitioner shall file an undertaking on oath before the learned trial Court that he shall not transfer, alienate, part with the possession of the vehicle or create any charge over the vehicle till the conclusion of the trial;
(iii)The petitioner shall produce the vehicle as and when the Authority or the Court concerned directs him to do so.
[7] With the above, this petition is disposed of. Rule is made absolute to the aforesaid extent.
[8] Registry to communicate this order to the concerned Court/ authority through Fax and Email.
(R.P.DHOLARIA, J) cmk Page 3 of 3 Downloaded on : Thu Oct 29 12:44:24 IST 2020