Vipul Roshan Kumar Shah vs State Of Gujarat

Ashutosh J. Shastri, J

Rule returnable forthwith. Learned APP waives service of notice of rule of rand on behalf of respondent State.

The present petition is filed under Article 226 of the Constitution of India for the purpose of seeking following reliefs :

“A. Your Lordships may be pleased to quash and set aside the order dated 2.1.2019 passed by Chief Judicial Magistrate, Songadh, in an application

made under Section 451 being Criminal Misc. Application No.99 of 2018 and delete and modify the condition of furnishing unconditional bank

guarantee to the tune of 1.5 times the value of the Hitachi Machine in the order dated 16.3.2019 passed by the learned (Ad-hoc) Additional District

Judge, Tapi at Vyara in Revision Application No.21 of 2019 at Annexure-A.

B. Your Lordships may be pleased to direct the respondent herein to release the Hitachi Machine bearing Registration No.GJ-14-M-7575 forthwith.

C. Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.

D. Award cost of this petition.â€​

The case of the petitioner is that the petitioner is the owner of Hitachi Machine bearing registration No.GJ-14-M-7575 which came to be purchased

from one Devendrasinh Rana and is carrying on the business of transportation and earning his bread and butter by plying this Hitachi machine in

question for transportation.

Pursuant to the complaint which has been lodged, the Hitachi Machine is seized as muddamal. The said machine is lying as it is right from

13.6.2020. As a result of which, an application was submitted under Section 451 of the Cr.P.C. before the learned Chief Judicial Magistrate, Songadh

which came to be rejected. Hence, the petitioner preferred Revision Application No.21 of 2019 which also came to be disposed of. However, while

passing the order of releasing muddamal Hitachi Machine, a condition is imposed to furnish unconditional bank guarantee to the extent of 1.5 times

value of the Hitachi machine and other strict conditions and the said conditions having been found to be too harsh, the petitioner is left with no other

alternate but, to challenge the same by way of present petition.

Ms.Namrata Shah, learned advocate for the petitioner, has contended that the petitioner is merely a transporter and used to load the sand minerals

from a legally valid lease area and as such, the petitioner has no knowledge about the said commission of illegality in any form. It has also been

submitted that the petitioner is ready and willing to pay any penalty laid down by Mines and Mineral Department as per Rule 12 of the Rules and in

view of Section 22 of the Act, to impose such a harsh condition of offering unconditional bank guarantee tot he extent of 1.5 times value of Hitachi

Machine would put to petitioner to severe financial crunch and as such, by pointing out the decisions delivered by the Apex Court reported in (1977) 4

SCC 358, a request is made to release the vehicle in question by setting aside the impugned order.

5.1 Additionally, it has also been pointed out by submitting additional affidavit reflecting on page-53 onward that in a similar set of circumstance, the

Coordinate Benches of this Court have considered such kind of request and the vehicle / machinery has been released. It has been specifically pointed

out from this very FIR that one another vehicle is already released by the Coordinate Bench of this Court in a petition being SCR.A No.6957 of 2019,

decided on 15.6.2020 and as such, a request is made that on the same terms and conditions, the petitioner’s case may be considered.

Mr.J.K.Shah, learned APP appearing on behalf of the respondent, has submitted that the machine in question is seized as a muddamal and the same

is in custody and since the offence cannot be compounded by the authority, the courts below have not committed any error. However, on the ground

of other orders which have been annexed to the petition in similar set of circumstance and the machineries / vehicles have been released, learned

APP has not been able to confront with the said circumstance. Hence, the learned APP has left it to the discretion of the Court.

Having heard the learned advocates appearing for the respective parties and having gone through the entire material on record, prima facie, it

appears that when in a similar set of circumstance, the Coordinate Benches have already considered the request of release of muddamal seized, there

is no other reason distinguishable enough to deviate from such. Additionally, the fact has been verified and it is not in dispute that from the very same

FIR, the Coordinate Bench has, in SCR.A No.6957 of 2019 has already released the muddamal articles, by directing to deposit the amount of

Rs.50,000/- instead of furnishing the bank guarantee, the order of which is reflecting on page-61 of the compilation. Hence, the Court is inclined to

consider the request.

In view of the above, the present petition is disposed of on the following line :

(1) The impugned order dated 2.1.2019 passed in Criminal Misc. Application No.99 of 2018 is set aside.

(2) The order dated 16.3.2019 passed in Revision Application No.21 of 2019 passed by the (Ad-hoc) Additional District Judge, Tapi at Vyara insofar

as the petitioner is concerned, is modified to the extent that the petitioner shall deposit an amount of Rs.50,000/- instead of furnishing unconditional

bank guarantee to the extent of 1.5 times of the value of the vehicle in question.

(3) It is clarified that rest of the conditions of the order 16.3.2019 shall remain intact.

Rule is made absolute to the aforesaid extent.

The Registry is directed to communicate this order by fax or e-mail to the trial court.