Gujarat High Court
Devabhai Aapabhai Tramta vs State Of Gujarat on 17 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 998
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
R/SCR.A/3848/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3848 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DEVABHAI AAPABHAI TRAMTA
Versus
STATE OF GUJARAT
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Appearance:
MR PAWAN A BAROT(6455) for the Applicant(s) No. 1
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 17/09/2020
ORAL JUDGMENT
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- Ashok Leyland Page 1 of 11 Downloaded on : Fri Sep 18 23:09:37 IST 2020 R/SCR.A/3848/2020 JUDGMENT Truck/Dumper bearing RTO Registration No. GJ-13-X-4141 in connection with the FIR being CR. No. 11193008200605 of 2020 registered with Babra Police Station District- Amreli for the offences punishable under Sections 379 and 114 of the Indian Penal Code and under Rule 21 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rule, 2017.
2. Heard learned advocate Mr. Pawan A Barot for the petitioner and learned APP for the respondent State through video conference.
3. The petitioner has prayed for following reliefs, which are as under:
"A.Your Lordships may kindly be pleased to Modify /Delete the conditions imposed in Para 22 of Order for release of muddamal vehicle dated 29.07.2020 passed by Ld. District & Sessions Judge Court Amreli at Amreli in Criminal Revision Application No. 17 of 2020. B. Your Lordships may please to issue a writ, order or direction directing the respondent No. 1 to release / handover the possession of muddamal i.e. ASHOK LEYLAND TRUCK/DUMPER bearing Registration No. GJ-13-X-4141 and Chassis No. MB1G3DYC0BENG4303 and Engine No. NBE1591632 to the applicant on appropriate conditions as deemed fit by this Honourable Court;
C. Pending admission and final hearing of this application Your Lordship may please to issue a writ, order or direction to respondent No. 1 to release /handover the possession of muddamal i.e. ASHOK LEYLAND TRUCK/DUMPER bearing Registration No. Page 2 of 11 Downloaded on : Fri Sep 18 23:09:37 IST 2020 R/SCR.A/3848/2020 JUDGMENT GJ-13-X-4141 and Chassis No. MB1G3DYC0BENG4303 and Engine No. NBE1591632 to the applicant on appropriate conditions as deemed fit by this Hon'ble Court."
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Factual Matrix of the case:
4. The fact in nutshell is that the alleged accused persons were involved in the illegal and mining activity and on looking to the raid, the accused persons eloped from the scene. Upon investigation the officers recovered one dumper and one Truck/Dumper, wherein the dumper having value of Rs. 4,00,000/- and Truck/Dumper having value of Rs. 13,00,000/- as per the Panchnama drawn. Thereafter, the applicant preferred an application for releasing the said muddamal before the learned Judicial Magistrate First Class, Babra under Section 451 of the Cr.PC, which came to be rejected. Thereafter, the petitioner preferred a Criminal Revision Application No. 17 of 2020 before the Learned District and Sessions Judge, Amreli, which came to be allowed by imposing harsh condition that to furnish unconditional bank guarantee in tune of 1.5 time of the amount of Vehicle. Hence, the petitioner has preferred this Application for deletion/modification of Condition No. 22 and to release the captioned Muddamal.
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5. It is further contended that the petitioner is mere a transporter and he in normal course, asks the driver to the Truck to load the sand mineral from legally valid lease area, therefore, he had no knowledge about the alleged incident of carrying sand illegally in the captioned muddamal Truck. Learned advocate for the petitioner urged that offence under the MMDR Act, so it is a compoundable offence and the petitioner is ready to pay any penalty laid down by the Mines and Minerals Department, as per Rule 12 and Section 22 of the said Act. He has further contended that the muddamal Truck is the only means of livelihood of the petitioner and his family. Moreover, since long, the said Truck 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 Truck 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 reported in AIR 2003 SC 638 and in case of Smt. Basava Kom Dyaman Gauda Patil Vs. State of Mysore reported in (1977) 4 SCC 358, wherein the captioned mudamal has been released.
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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 Page 5 of 11 Downloaded on : Fri Sep 18 23:09:37 IST 2020 R/SCR.A/3848/2020 JUDGMENT 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 dated20.07.2020 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 Truck 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. Page 6 of 11 Downloaded on : Fri Sep 18 23:09:37 IST 2020
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9. Per contra, learned APP 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 other 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. This Court has also assistance of judgments and orders passed by the 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.
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(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.
(g) In case of Jignasha Kalpeshbhai Prajapati thro POA Kalpeshbhai Bhagwanbhai Prajapati vs. State of Gujarat order dated20.07.2020 passed in Special Criminal Application No. 2896 of 2020.
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(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.
12. This Court notices that the said Truck 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 truck with few conditions since conditions imposed by trial Court appear too harsh. Therefore, when the Co-ordinate Bench passed many orders Page 9 of 11 Downloaded on : Fri Sep 18 23:09:37 IST 2020 R/SCR.A/3848/2020 JUDGMENT 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 amount with Bank Guarantee as per Panchnama or seizure memo, the petitioner is permitted to deposit an amount with 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.
13.Resultantly, in-fleri this petition is allowed, the authority concerned is directed to release the vehicle of petitioner-Truck Ashok Leyland Truck/Dumper bearing RTO Registration No. GJ- 13-X-4141 in the terms and conditions that the petitioner:
a.1. Shall deposit an amount with 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 ; a.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, a.3. Shall also file an undertaking to produce the vehicle as an when directed by the trial Court;
a.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 Page 10 of 11 Downloaded on : Fri Sep 18 23:09:37 IST 2020 R/SCR.A/3848/2020 JUDGMENT 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. This petition is 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.
(DR. ASHOKKUMAR C. JOSHI,J) Radhika Page 11 of 11 Downloaded on : Fri Sep 18 23:09:37 IST 2020