Gujarat High Court
Rathod Laxmanbhai Amarabhai vs State Of Gujarat on 13 March, 2024
NEUTRAL CITATION
R/SCR.A/2728/2024 ORDER DATED: 13/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 2728 of 2024
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RATHOD LAXMANBHAI AMARABHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR BHAVESH J PATEL(6801) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR KM ANTANI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 13/03/2024
ORAL ORDER
RULE. Learned APP waives notice of rule for and on behalf of the respondents.
[1.0] The petitioner has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction under Article 227 of the Constitution of India so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 with a prayer to release Muddamal Vehicle i.e Ashok Leyland Ltd. bearing RTO registration No.GJ-31-T-5715.
[2.0] The case of the prosecution is that while the police personnel were on patrolling, they received a secret information of the vehicle in question carrying animals and when police authorities intercepted the same, on carrying out the search of the said vehicle, its driver was found carrying animals without any pass or permit. Therefore, an FIR being C.R. No.11187002230163 of 2023 came to be registered with Balasinor Police Station, Page 1 of 6 Downloaded on : Thu Mar 14 21:46:29 IST 2024 NEUTRAL CITATION R/SCR.A/2728/2024 ORDER DATED: 13/03/2024 undefined District : Mahisagar for the offence punishable under the Prevention of Cruelty to Animals Act, 1960, the Animal Protection Act and the Motor Vehicles Act.
[3.0] Heard learned advocate for the petitioner and learned APP for the respondents.
[4.0] Learned Advocate for the petitioner has urged that this Court has wide powers under Article 226 of the Constitution. It can also take into account the ratio laid down in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in AIR 2003 SC 638, wherein, the Hon'ble Apex Court lamented the scenario of number of vehicles having been kept unattended and becoming junk within the police station premises.
[4.1.] It is submitted by the learned advocate for the petitioner that vehicle is hypothecated to the IndusInd Bank. No objection Certificate is produced, wherein, stating that finance company has no objection, if the vehicle is released in favour of the petitioner.
[5.0] Learned APP for the respondents has objected the submissions made by learned advocate for the petitioner and urged that of course, powers of this Court under Article 226 of the Constitution to order release of the vehicle can be exercised at any time, whenever the Court deems it appropriate but this is not a fit case to exercise the jurisdiction and hence, requested to dismiss the petition.
Page 2 of 6 Downloaded on : Thu Mar 14 21:46:29 IST 2024NEUTRAL CITATION R/SCR.A/2728/2024 ORDER DATED: 13/03/2024 undefined [6.0] It appears that in the present case, Section 6(A) of the Prevention of Cruelty to Animals Act, 1960, is also involved. There is no presumption that the vehicle has been used for slaughtering purposes. It further appears that the Co-ordinate Bench of this Court, as well as this Court itself, has time and again directed the police authority to verify whether proceedings of confiscation have commenced or not. The Court also warned the Investigating Officer that non-observance of this order shall be viewed seriously. Today, when the matter is taken up for hearing, learned APP under the instructions states that offence is registered on 30.04.2023, more than 6 months have been passed, no confiscation proceedings are initiated till date. Therefore, the Court has no option but to release the vehicle.
[7.0] Prima-facie, there is nothing to show that the cow proginy were being transported for the purpose of slaughter. The mere bald assertion on the part of the police in that regard would not be sufficient to attract the provision of Section 6A of the Act which imposes a bar for release of the vehicle for a period of six months from the date of the seizure.
[8.0] This Court has relied on judgment passed by the coordinate Bench of this Court in the case of Arvindkumar Babulal Khandelval v. State of Gujarat, reported in ABC 2015 (II0 363 GUJ wherein it is observed as under:
"8. The moot question is whether the provisions of section 6(A) clause (4) applies in the facts and circumstances of the case. Section 6(A) clause (1) reads as under:Page 3 of 6 Downloaded on : Thu Mar 14 21:46:29 IST 2024
NEUTRAL CITATION R/SCR.A/2728/2024 ORDER DATED: 13/03/2024 undefined (1) No person shall transport or offer for transport or cause to be transported any animal specified in subsection (1A) of section 5 from any place within the State to any another place within the State for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be so slaughtered: Provided that a person shall be deemed to be transporting such animal for the purpose of slaughter unless contrary is proved thereto to the satisfaction of the concerned authority or officer by such person or he has obtained a permit under subsection (2) for transporting animal for bona fide agricultural or animal husbandry purpose from such authority or officer as the State Government may appoint in this behalf."
A restriction under the Prevention of Cruelty to Animals Act to release the vehicle would apply only in a case where the animals are being transported for the purpose of slaughter. Herein, no such case of prosecution. Even, till date no proceedings for confiscation of the vehicle being initiated. In view of above, there is no bar to invoke the powers under Section 451 of the CrPC also.
[9.0] In the result, this petition is allowed. The impugned orders passed by the courts below are hereby quashed and set aside. It is ordered that the vehicle in question i.e. Ashok Leyland Ltd. bearing RTO registration No.GJ-31-T-5715 shall be released Page 4 of 6 Downloaded on : Thu Mar 14 21:46:29 IST 2024 NEUTRAL CITATION R/SCR.A/2728/2024 ORDER DATED: 13/03/2024 undefined subject to the following terms and conditions;
(i) The petitioner shall execute a bond within a period of one week from today for the production of the vehicle so released, if and when required before the Court having jurisdiction to try the offence on account of such seizure;
(ii) The petitioner shall not indulge in any such illegal activity of transportation of the animals;
(iii) The petitioner shall not sell, transfer or alienate the vehicle in any manner till the final conclusion of the trial pending in the court of the Judicial Magistrate.
(iv) If confiscation proceedings being initiated, the petitioner shall have to surrender the vehicle.
[10.0] Before release of the vehicle, concerned police authority shall take photographs / identity of the vehicle from all sides at the cost of the petitioner and shall draw necessary panchanama to that effect. Said panchanama and photographs shall be part of charge sheet papers for the purpose of trial.
[11.0] Copy of this order be send to concerned RTO, where the vehicle is registered, for necessary entry in the Register and to take notice that this Court has restrained transfer of vehicle till final disposal of the trial. Such transfer shall be subject to any order that may be passed by the learned Trial Court permitting transfer of vehicle.
Page 5 of 6 Downloaded on : Thu Mar 14 21:46:29 IST 2024NEUTRAL CITATION R/SCR.A/2728/2024 ORDER DATED: 13/03/2024 undefined [12.0] Rule is made absolute accordingly. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 6 of 6 Downloaded on : Thu Mar 14 21:46:29 IST 2024