Gujarat High Court
Isha Bachu Mamman vs State Of Gujarat on 11 June, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
R/SCR.A/9053/2020 ORDER DATED: 11/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9053 of 2020
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ISHA BACHU MAMMAN
Versus
STATE OF GUJARAT
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Appearance:
BHARATKUMAR K VIZODA(8026) for the Applicant(s) No. 1
SUDHIR M KHANNA(7963) for the Applicant(s) No. 1
MS NISHA THAKORE APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 11/06/2021
ORAL ORDER
1. The present petition has been filed under Section 482 of the Criminal Procedure Code and Articles 14, 19, 21, 226 and 227 of the Constitution of India for releasing the vehicle i.e. Mahindra Bolero Camper bearing registration No. GJ-12-X-6583 and for quashing and setting aside the impugned order dated 26.10.2020 passed by the learned 3rd Additional Sessions Judge, Bhuj - Kachchh in Criminal Revision Application No.71 of 2020.
2. According to the petitioner, the aforesaid vehicle was seized by the police for allegedly using the same in the offences under Sections 279 and 114 of the Indian Penal Code, Section 11(1)(d), 11(1)(e) of the Animal Cruelty Act, Sections 177 and 184 of the Motor Vehicles Act and Sections 6(A) and 8(2) of the Gujarat Animal Preservation Act on the ground that the said vehicle was used for transporting the animals.
Page 1 of 8 Downloaded on : Sat Jan 15 04:54:02 IST 2022R/SCR.A/9053/2020 ORDER DATED: 11/06/2021 2.1 According to the petitioner, he has applied for the interim custody thereof to the concerned Sessions Judge which came to be rejected. It is contended that the vehicle is not required for the purpose of investigation and no useful purpose will be served by keeping the said vehicle in the police station till disposal of the case. It is prayed to set aside the order dated dated 26.10.2020 passed by the learned 3rd Additional Sessions Judge, Bhuj
- Kachchh in Criminal Revision Application No.71 of 2020 and pass necessary order of interim custody of the vehicle in question.
3. Heard Mr.Sudhir Khanna, learned advocate for the petitioner and Ms.Nisha Thakore, learned Additional Public Prosecutor for the respondents at length through video conferencing.
4. Mr.Sudhir Khanna, learned advocate for the petitioner has submitted the same facts which are narrated in the memo of petition and has prayed to allow the petition and give interim custody of the vehicle to the petitioner. For this purpose, Mr.Khanna, learned advocate has relied upon the provisions of the Gujarat Preservation (Amendment) Rules, 2017 and the order dated 28.10.2020 passed by this Court (Coram: Hon'ble Mr.Justice R. P. Dholaria) in the case of Anwar Sajan Mokha Vs. The State of Gujarat in Special Criminal Application No.5576 of 2020. He has prayed to allow the petition. He has also assured the Court that the petitioner will abide by all the conditions that may be imposed by Page 2 of 8 Downloaded on : Sat Jan 15 04:54:02 IST 2022 R/SCR.A/9053/2020 ORDER DATED: 11/06/2021 this Court. He has urged that this Court has wide powers, while exercising such powers under Article 226 of the Constitution of India. He has also submitted to take into account the ratio laid down in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003 SC 638 wherein, the Apex Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police station premises.
5. Per contra, Ms.Nisha Thakore, learned Additional Public Prosecutor for the respondents has vehemently opposed in allowing the present application, especially when there is cruelty to the animal. She has also submitted that there is specific provisions in the Act that if the vehicle is used in the offence of cruelty to the animal, then, such vehicle stands forfeited to the Government. She has prayed to reject the application.
6. It would be worthwhile to refer profitably at this stage to the observations made by the Apex Court in the case of Sunderbhai Ambalal Desai (Supra), which read as under:-
"15. Learned senior counsel Mr.Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.
16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of Page 3 of 8 Downloaded on : Sat Jan 15 04:54:02 IST 2022 R/SCR.A/9053/2020 ORDER DATED: 11/06/2021 arguments are advanced by the concerned persons.
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. This can be done pending hearing of applications for return of such vehicles."
7. Having considered the submissions canvassed by the learned advocates for both the parties and considered factual aspects of the case and the Gujarat Animal Preservation Rules, 2017 as well as the provisions of the Gujarat Animal Preservation Act and the materials placed on record, the fact emerges from the record that the vehicle in question has been seized by the police for it's used in transporting the animals in cruel manner. It also appears from the Rules 2017 wherein Rule 4 has been inserted for forfeiture of the vehicle under Sub-Section (3) of Section 6A or Sub-Section (2) of Section 6B of the Act. Rules 5 and 6 of the Gujarat Animal Preservation Rules read as under:-
5. In the principal rules, after rule 4, the following new rule shall be inserted, namely:-
"4A. Manner for forfeiture of vehicle under sub-section (3) of section 6A or sub section (2) of section 6B of the Act.-
(a) (1) When there is reason to believe that an offence under sub section (3) of section 6A or sub section (2) of section 6B has been committed in respect of any animal as specified under sub-section (1A) of section 5 of the Act, or beef or beef product is being transported in contravention of the provisions of the Act, such animal or product together with vehicle, conveyance, container and any other equipment used in committing any such offence, may be seized by Police-officer by stopping the vehicle or conveyance and causing it to remain stationary as long as may reasonably be necessary for Page 4 of 8 Downloaded on : Sat Jan 15 04:54:02 IST 2022 R/SCR.A/9053/2020 ORDER DATED: 11/06/2021 examination of the contents in the vehicle, conveyance, container and any other equipment and inspection of all records in possession of such driver or other person in charge of the vehicle or conveyance any other person in the vehicle or conveyance.
(2) The police officer who has made the seizure under this rule shall immediately send sample of the suspected beef to Forensic Science Laboratory. The animal captured in vehicle or conveyance as specified under sub-section (1A) of section 5 of the Act shall be handed over to nearest designated infirmary.
(3) It shall be the duty of the driver, owner or the person in charge of the vehicle or conveyance from whom the sample of suspected beef is taken, to up keep the remaining quantity of suspected beef in good condition till the result of Forensic Science Laboratory is received by taking such steps as the police officer may deem necessary.
(4) Every Police-officer making seizure under this rule shall place on such vehicle, conveyance, container and any other equipment, a mark indicating that the same has been seized, and shall, as soon as may be, make a report of such seizure to immediate superior officer.
(b) The Sub-Divisional Police Officer may make an order to confiscate such vehicle, conveyance, container and any other equipment seized under sub-section (3) of section 6A or sub-section (2) of section 6B of the Act.
(c) No order confiscating any vehicle, conveyance, container and any other equipment shall be made under clause (b) without giving notice in writing to the person from whom it is seized informing such person of the grounds on which it is proposed to confiscate and considering objections, if any:
Provided that, no order confiscating a vehicle, conveyance, container and any other equipment shall be made except, after giving a notice in writing to the registered owner thereof.
(d) No such confiscating vehicle, conveyance, container and any other equipment shall be made under clause
(b), if the owner of the vehicle conveyance, container and any other equipment proves to the satisfaction of the authorised officer that the same was used in carrying animal or beef or beef product without the knowledge or connivance of the owner, agents and person in the vehicle, conveyance, container and any Page 5 of 8 Downloaded on : Sat Jan 15 04:54:02 IST 2022 R/SCR.A/9053/2020 ORDER DATED: 11/06/2021 other equipment, if any, and each of them had taken all reasonable and necessary precautions against such use.
(e)(i) Where the Sub-Divisional Police Officer, after passing an order of confiscation under clause (b) is of the opinion that it is expedient in the public interest so to do, may order the confiscated vehicle, conveyance, container and any other equipment to be sold by public auction.
(ii) Where any confiscated vehicle, conveyance, container and any other equipment is sold as aforesaid, the proceeds thereof, after deduction of the expenses of any such auction or other incidental expenses, relating thereto, shall, where the order of confiscation made under rule (b) is set aside or annulled by the Court, be paid to the owner thereof or to the person from whom it was seized as may be specified in such order.
6. In the principal rules, for the existing Schedule, the following new Schedule shall be substituted, namely:-
Schedule (see rule 2(a)(ii))
(a) Taluka Development Officer
(b) Mamlatdar
(c) Chief Officer (Municipality)
(d) Assistant Commissioner / Dy. Commissioner / Dy. Health Officer (Municipal Corporation)
(e) Veterinary Officer"
8. In view of the aforesaid Rules, it is crystal clear that the complete procedure for confiscation of the vehicle in question has been made and as per Rule 5 of the Rules 2017 which has amended Section 4 of the Rules and made amendment in Section 6A and Sub-Section (2) of Section 6B and it has provided for the Sub-Divisional Police Officer may make an order to confiscate such vehicle. It also appears from Sub Clause (b) that notice has to be given to the concerned person. Thus, there is no automatic confiscation of the vehicle, which has been seized for the offence under the Animal Cruelty Act.Page 6 of 8 Downloaded on : Sat Jan 15 04:54:02 IST 2022
R/SCR.A/9053/2020 ORDER DATED: 11/06/2021
9. The reliance placed upon the order dated 28.10.2020 passed by this Court (Coram: Hon'ble Mr.Justice R. P. Dholaria) in the case of Anwar Sajan Mokha Vs. The State of Gujarat in Special Criminal Application No.5576 of 2020 which was identical to the facts of the present case and the Court has made detailed discussion and allowed the petition. Therefore, considering the aforesaid provisions and factual aspects, it appears that the Sessions Court has committed serious error of fact in rejecting the application. Therefore, while exercising the power under Article 226 of the Constitution of India, the present petition deserves to be allowed.
10. In the result, this petition is allowed. The impugned order dated 26.10.2020 passed by the learned 3rd Additional Sessions Judge, Bhuj - Kachchh in Criminal Revision Application No.71 of 2020 is hereby by quashed and set aside. The authority concerned is directed to release the vehicle of the petitioner, being Mahindra Bolero Camper bearing registration No. GJ-12-X-6583, on the terms and conditions that the petitioner :
(i) shall furnish, by way of security, bond of Rs.2,00,000/- (Rupee Two Lakhs Only) and solvent surety of the equivalent amount;
(ii) shall file an undertaking on oath 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;
(iii) shall also file an undertaking on oath to produce the Page 7 of 8 Downloaded on : Sat Jan 15 04:54:02 IST 2022 R/SCR.A/9053/2020 ORDER DATED: 11/06/2021 vehicle as and when directed by the trial Court;
(iv) in the event of any subsequent offence, the vehicle shall stand confiscated.
10.1 Before handing over the possession of the vehicle to the petitioner, necessary photographs shall be taken and detailed panchnama in that regard, if not already drawn, shall also be drawn for the purpose of trial.
10.2 If, the Investigating Officer 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, accordingly. Direct service is permitted.
11. Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode. Learned advocate for the petitioner is also permitted to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.
12. The concerned Trial Court be informed accordingly.
(DR. A. P. THAKER, J) V.R. PANCHAL Page 8 of 8 Downloaded on : Sat Jan 15 04:54:02 IST 2022