Rule.
Learned APP Ms.A.C. Raval waives service of Rule for Respondents.
The present petition has been filed by the petitioner under Articles 14, 19, 21, 226 and 227 of the Constitution of India for quashing and setting aside the order passed by the Sessions Judge, Gandhinagar in Criminal Revision Application No.4 of 2012 dated 10.02.2012 confirming the order passed by the 3rd Additional Senior Judicial Magistrate, First Class, Gandhinagar dated 30.01.2012 in Criminal Misc. Application No.2 of 2012 on the grounds stated in the petition. It is further prayed that vehicle of the petition being Truck bearing Registration No.RJ-04-GA-1829 may be ordered to be released on the grounds stated in the petition.
Heard learned counsel appearing for the respective parties.
Learned counsel, Mr.Saiyad has submitted that under Section 452 of the Criminal Procedure Code, the vehicle (truck), which has been seized, may be released. He submitted that both the Courts below have committed a grave error in passing the impugned order and have failed to appreciate the relevant facts with regard to the case and thereby has erroneously proceeded to consider on the basis of Section 6A of the Gujarat Animal Preservation Act, 1954. He, therefore, submitted that the present petition may be allowed. He has referred to and relied upon the judgment of the Apex Court in case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in AIR 2003 SC 638 with regard to the muddamal and submitted that the vehicle may be released.
Learned APP Mr.Jani resisted the present petition.
In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.
Admittedly, the applicant is the owner of the vehicle and as stated, he had given the said vehicle to his brother-in-law. Therefore, the learned judge has considered that on earlier occasion, when such application was not entertained, it cannot be entertained and has misdirected in considering the said application for the release of the truck with reference to Section 6A(4) of the Gujarat Animal Preservation Act, 1954. Section 5(1) of the Act, 1954 refers to certificate in writing from the Competent Authority if the animal is taken for slaughter, which is not the case herein. Therefore, what Section 5 of the Act, 1954 provides is the restriction with regard to the slaughter or the prohibition against the slaughter subject to the certificate for the cattle. Similarly, Section 6A of the Act, 1954 provides for "Prohibition against transportation of specified animals for slaughter". In the facts of the present case, the vehicle, which has been seized, at the most could be released as provided even as per Section 6A(4) after the six months and the period of six months has expired. Therefore, though it has been observed that after the date of offence, the period of six months has not expired, the vehicle was not released, however as on date, since the period of six months has expired, the present petition deserves to be allowed.
In the circumstances, the present petition stands allowed in terms of Para Nos.19a & 19b. The impugned order passed by the Sessions Judge, Gandhinagar in Criminal Revision Application No.4 of 2012 dated 10.02.2012 confirming the order passed by the 3rd Additional Senior Judicial Magistrate, First Class, Gandhinagar dated 30.01.2012 in Criminal Misc. Application No.2 of 2012 is hereby quashed and set aside. Truck bearing Registration No.RJ-04-GA-1829 is ordered to be released from the custody of the respondent no.2 forthwith.
Rule is made absolute. Direct service is permitted.
(RAJESH H.SHUKLA, J.) /patil Top