Rathod Dharmendra Punamchand vs State Of Gujarat

Vipul M. Pancholi, J

Rule. Learned Assistant Public Prosecutor waives service of notice of rule for the respondents.

The petitioner has preferred this petition, seeking to invoke extraordinary jurisdiction of this Court under Article 226 and supervisory jurisdiction

under Section 227 of the Constitution of India so also inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 for the

release of the muddamal vehicle bearing Registration No.GJ-12-V-5389.

The brief facts leading to the filing of the present petition are as under,

3.1 The petitioner is the owner of the muddamal vehicle i.e. Truck bearing Registration No.GJ-12-V-5389 and it is duly registered with the transport

department of the Government. However on account of registration of FIR being C.R. No.6/2019 registered with Changodar Police Station under

Sections 379, 308, 285 and 120(B) of the Indina Penal Code, under Sections 15(1)(, 15(2), 15(4) and 15 of the Petroleum and Minerals Pipelines

(Acquisition of Right of User in Land) Act, under Sections 3 and 7 of the Prevention of Damages to the Public Properties Act and under Sections 3

and 7 of the Prevention of Black Marketing and Maintenance of Essential Commodities Act, the vehicle of the petitioner was recovered as muddamal.

3.2 Therefore to get the custody of the said vehicle, the petitioner filed an application under Section 451 of the Criminal Procedure Code, however, the

learned Judicial Magistrate First Class, Sanand rejected the said application vide order dated 21.02.2019.

3.3 Against the aforesaid order rejecting the application of the petitioner, the petitioner approached the concerned Sessions Court by filing Criminal

Revision Application No.47/2019, which came to be rejected by an order dated 06.05.2019.

3.3 Being aggrieved by the aforesaid order rejecting the Revision Application filed by the petitioner, the petitioner has filed present petition with a

prayer to release the muddamal of vehicle.

Learned advocate, Mr. Ansari appearing for the petitioners submitted that the petitioner is the owner of the vehicle in question, however, the

petitioner is nowhere connected in the commission of offence. Learned advocate for the petitioner submitted that this vehicle has not been used in any

other offence and it was not seized/detained earlier in any other case. It is submitted that merely because the vehicle in question was driven by the

driver, there is no ground available to the Investigating Officer to seize the vehicle in question. It is submitted that the petitioner was not aware about

the usage of the vehicle in question in commission of such offence. It is submitted that the vehicle in question is the source of livelihood of the

petitioner and if the same is not released, the petitioner would suffer grave hardship.

In support of his submission, learned advocate, Mr. Ansari has placed reliance on the judgment of the coordinate benches of this Court rendered in

Special Criminal Application No.7761 of 2018 rendered in the case of Pravinbhai Chhaganbhai Parmar vs. State of Gujarat as well as the order

passed in Special Criminal Application No.3494 of 2019 rendered in the case of M/s. Om Shakti Travesl vs. State of Gujarat. It is submitted that this

Court has, while exercising powers under Articles 226 and 227 of the Constitution of India, released the vehicle by imposing suitable conditions. In

view of the said, the present petition may also be allowed releasing the vehicle in question by imposing suitable conditions.

On the other hand, Learned APP Mr. Dave appearing for the respondent State, while opposing the petition, has vehemently submitted that the

vehicle in question was involved in the alleged offence and at this stage, permission for releasing the vehicle in question to the petitioner may not be

granted and, hence, the Courts below have rightly not exercised powers releasing the vehicle in question. Reliance has been placed on the judgment in

case of Pareshkumar Jaykarbhai Brahmbhatt vs. State of Gujarat rendered in Special Criminal Application No.8521 of 2017, decided on 15.12.2017,

wherein this Court held that in view of the embargo, the Courts below have no jurisdiction to hand over the custody of the vehicle in question used in

the offence. It is, thus, submitted that the writ petition may not be entertained and it may be rejected.

Heard learned advocates appearing for the parties through video conference.

On hearing learned advocates appearing for the parties and on perusal of the documents produced on record including the facts mentioned

hereinabove, it is clear that the petitioner is the owner of the vehicle in question, which was seized in connection with an FIR being C.R. No.6/2019

registered with Changodar Police Station for the offences. However, since the vehicle in question, which is seized in connection with aforesaid FIR, is

kept idle at the police station, in the place open to sky, it is likely to reduce the life of the vehicle in question.

This Court in case of Anilkumar Ramlal alias Ramanlalji Mehta vs. State of Gujarat rendered in Special Criminal Criminal Application No.2185 of

2018, has directed the release of the vehicle by imposing suitable conditions. Moreover, the coordinate benches of this Court have also directed the

release of the vehicle applying the principles laid down by the Apex Court in case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in AIR

2003 SC 638. Thus, applying the aforesaid principles of law to the facts of the present case, this Court is inclined to exercise power under Article 226

of the Constitution of India.

Therefore in view of the above facts, the present petition is allowed. The vehicle in question i.e. Truck bearing Registration No.GJ-12-V-5389 is

ordered to be released, pending the trial, on the terms and conditions that the petitioner:

(i) 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) file an undertaking on oath before the 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) produce the vehicle as and when the authority or the Court concerned directs him to do so.

Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/ authority

forthwith.