Girirajsinh Devubha Parmar Thro Thakar ... vs State Of Gujarat on 28 March, 2023

[Cites 26, Cited by 0]

Gujarat High Court

Girirajsinh Devubha Parmar Thro Thakar ... vs State Of Gujarat on 28 March, 2023

Bench: Samir J. Dave

     R/SCR.A/843/2023                          ORDER DATED: 28/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 843 of 2023

==========================================================
         GIRIRAJSINH DEVUBHA PARMAR THRO THAKAR MEHUL
                          SHAILESHBHAI
                              Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
KRUNAL S MEHTA(9227) for the Applicant(s) No. 1
MS SWETHA D BHATT(11512) for the Applicant(s) No. 1
MS ASMITA PATEL, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                          Date : 28/03/2023

                            ORAL ORDER

1. Rule. Learned APP waives service of notice of rule for and on behalf of the respondents.

2. The petitioner has filed this petition 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 i.e. TRUCK (MAKE: ASHOK LEYLAND LTD) bearing RTO Registration No. GJ-31-T-0369 with scrap of Mix Plastic Mix hving weight of 7540 kilogram amount to Rs. 79,170/- in connection with the FIR being CR NO. 11214032211579 OF 2021 registered with Mandvi Police Station, District Surat for Page 1 of 7 Downloaded on : Tue Mar 28 20:53:12 IST 2023 R/SCR.A/843/2023 ORDER DATED: 28/03/2023 the offence punishable under Sections 120B, 285, 420, 465, 468, 471 and 114 of the Indian Penal Code; Sections 3, 7, 8 and 10 of the Essential Commodities Act.

3. Heard learned advocates for the parties

4. Learned advocate for the petitioner has submitted that the muddamal vehicle has been detained by the investigating officer and that if the interim custody of the vehicle is not given, serious prejudice would be caused to the petitioner as the muddamal vehicle would get substantially damaged by the time trial gets concluded and probably by that time the value of the muddamal vehicle may also become 'Nil' as the vehicle is lying under the open sky in different climatic conditions. It was further submitted that this Court has ordered release of muddamal vehicles. It was accordingly urged that this Court may direct release of the muddamal vehicle in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India on suitable terms and conditions.

5. 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 Page 2 of 7 Downloaded on : Tue Mar 28 20:53:12 IST 2023 R/SCR.A/843/2023 ORDER DATED: 28/03/2023 mudamal has been released.

6. 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. Learned APP further contended that the order passed by the learned trial Court is just and proper.

7. 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.

8. This Court has also assistance of judgments and orders passed by the Co-ordinate Bench of this Court, which are as under:

Page 3 of 7 Downloaded on : Tue Mar 28 20:53:12 IST 2023

R/SCR.A/843/2023 ORDER DATED: 28/03/2023

(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.

(g) In case of Jignasha Kalpeshbhai Prajapati thro POA Kalpeshbhai Bhagwanbhai Prajapati vs. State of Gujarat order dated20.07.2020 passed in Special Criminal Page 4 of 7 Downloaded on : Tue Mar 28 20:53:12 IST 2023 R/SCR.A/843/2023 ORDER DATED: 28/03/2023 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

9. This Court notices that the said muddmal vehicle 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 muddamal vehicle with few conditions.

Page 5 of 7 Downloaded on : Tue Mar 28 20:53:12 IST 2023

R/SCR.A/843/2023 ORDER DATED: 28/03/2023

10. Resultantly, this petition is allowed, and the order dated 01.11.2021 passed by learned Additional Chief Judicial Magistrate, Mandavi, District Surat in Criminal Misc. Application No. 49 of 2021 as well as order dated 16.11.2022 passed by 7th Additional Sessions Judge, Surat at Bardoli in Criminal Revision Application No. 28 of 2021 stand quashed. The authority concerned is directed to release the vehicle of petitioner, TRUCK (MAKE: ASHOK LEYLAND LTD) bearing RTO Registration No. GJ-31-T-0369 with scrap of Mix Plastic Mix hving weight of 7540 kilogram amount to Rs. 79,170/- in the terms and conditions that the petitioner:

1. 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.

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 Page 6 of 7 Downloaded on : Tue Mar 28 20:53:12 IST 2023 R/SCR.A/843/2023 ORDER DATED: 28/03/2023

4. If the I.O. finds use of vehicle in such anti-social, illegal activity by the present petitioner then this order shall stand cancel and the vehicle will be seized.

5. The trial Court shall verify the ownership of the vehicle before releasing the same.

11. 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.

12. 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.

Rule is made absolute. Direct Service is permitted.

(SAMIR J. DAVE,J) K. S. DARJI Page 7 of 7 Downloaded on : Tue Mar 28 20:53:12 IST 2023

Unlock Advanced Research with PRISMAI

Gujarat High Court