Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 713 (MP)

Sheikh Kalim v. State of M. P.

2015-07-13

JARAT KUMAR JAIN

body2015
ORDER 1. This petition is filed under section 482 of CrPC against the order passed by the 12th Additional Sessions Judge in Criminal Revision No.948/2014 on 21.1.2015 whereby he has affirmed the order passed by the Commissioner, Indore in Criminal Appeal No.39/2013-14, by which Commissioner, affirmed the order of confiscation of the vehicle passed by the Collector, Burhanpur. 2. On 21.6.2013, Shri Anand Tiwari, ASI, Police Station, Ganpati Naka, Burhanpur on the basis of secret information intercepted a Bolero Pick-Up No.MP12-GA-0924 and on checking it was found that 11 cow progeny were being transported in the vehicle. The cattle were being taken for slaughtering purpose to the State of Maharashtra. Nitesh and Bablu were driver and cleaner of the vehicle. They were not having valid license for transporting the cattle. The vehicle and the cattle were seized and Crime No.148/13 for the offence under sections 4, 6 and 9 of Govansh Vadh Pratishedh Adhiniyam, 2004 (in brief Adhiniyam) and section 11(d) of Prevention of Cruelty to Animals Act, 1960 has been registered. After completion of the investigation final report has been filed against Nitesh @ Santosh and Bablu. After trial in Criminal Case No.1292/2013 JMFC, Burhanpur vide judgment dated 21.3.2014 acquitted the accused persons, whereas as per the provisions of section 11(5) of Adhiniyam the District Magistrate after making inquiry found that there is a violation of sections 4, 5, 6, 6-A of the Adhiniyam and thus confiscated the vehicle. Against that order of confiscation, petitioner who is the registered owner preferred an appeal to the Divisional Commissioner, Indore which has been dismissed thereby affirming the order of Collector. Against that order as per the provisions of section 11B petitioner filed a revision before the Sessions Court which affirmed the order of the Divisional Commissioner. Being aggrieved the petitioner filed this petition. 3. Learned Counsel for the petitioner submits that the Courts below have not considered the fact that at the time of incident the applicant was not found in the vehicle and there is no evidence that in connivance with the applicant cattle were illegally being transported. During trial the prosecution has failed to prove the charges against the driver and cleaner, therefore, learned Magistrate has acquitted them from all the charges, thus, there is no evidence that at the time of incident the vehicle was used for the purpose of illegal transportation of the cattle. During trial the prosecution has failed to prove the charges against the driver and cleaner, therefore, learned Magistrate has acquitted them from all the charges, thus, there is no evidence that at the time of incident the vehicle was used for the purpose of illegal transportation of the cattle. The petitioner is a registered owner of the vehicle, therefore, he is entitled for the custody of the vehicle. The orders passed by the Courts below are contrary to the settled principles of law, thus, the petition be allowed and it be directed that the custody of the vehicle be handed over to the petitioner. Learned Counsel for the petitioner further submits that the vehicle cannot be confiscated by the Collector so long as criminal case is pending but the learned Collector has passed the order of confiscation before the conclusion of the trial. For this purpose he placed reliance on the judgment of this Court in the case of Premdas v. State of M.P. [2013(1) MPJR SN 10]. 4. On the other hand, learned Government Advocate for the non-applicant/State supports the order of confiscation of the vehicle. 5. After hearing learned counsel for the parties, perused the record. 6. Undisputedly the Collector has passed the order of confiscation on 4.2.2014 i .e. before the conclusion of trial by the criminal Court. The JMFC has passed the order of acquittal on 21.3.2014 holding that the Nitesh @ Santosh and Bablu have not committed an offence under sections 4, 6, and 9 of the Adhiniyam and 11(d) of the Prevention of cruelty to Animals Act. As per the provision of section 11(5) of the Adhiniyam, the Collector can confiscate the vehicle when by a competent Court it is found that any violation of sections 4, 5, 6, 6A and 6B of the Adhiniyam has been committed. The Collector should have refrained from passing any order of confiscation of vehicle during pendency of the criminal case. 7. That in the similar circumstances this Court while dealing a case under the Indian Forest Act read with the MP Vanopaj Vyapar Viniyaman Adhiniyam 1969 in case Premdas (supra), held that confiscation of the vehicle is unsustainable until and unless the criminal proceedings are finalized. 8. 7. That in the similar circumstances this Court while dealing a case under the Indian Forest Act read with the MP Vanopaj Vyapar Viniyaman Adhiniyam 1969 in case Premdas (supra), held that confiscation of the vehicle is unsustainable until and unless the criminal proceedings are finalized. 8. The full Bench of this Court in the case of Madhukar Rao v. State of M.P. [ 2000(1) JLJ 304 ], has laid down the principle that during pendency of the criminal case, confiscation proceedings should not be held and be finalized. This judgment has been affirmed by the Hon’ble Supreme Court in the case of State of M.P. v. Madhukar Rao [ 2008(1) JLJ 427 ], wherein the Court observed that:- “.....The submission was carefully considered by the Full Bench of the High Court and on an examination of the various provisions of the Act it was held that the provision of section 39(1)(d) would come into play only after a Court of competent jurisdiction found the accusation and the allegations made against the accused as true and recorded the finding that the seized article was, as a matter of fact, used in the commission of offence.” 9. The aforesaid principle laid down in Madhukar Rao (supra), reiterated and affirmed by the Hon’ble Supreme Court in the case of Principal Chief Conservator of Forest v. J.K.Johnson [ AIR 2012 SC 61 ]. 10. In the present case the trial Court has not found guilt of the accused persons and acquitted them from the charges of Adhiniyam as well as of the Prevention of Cruelty to Animals Act. 11. Thus, in absence of any finding with regard to violation of sections 4, 5, 6, 6A and 6B of the Adhiniyam, by the criminal Court, the order passed by the Collector, confiscating the said vehicle under the section 11(5) of the Adhiniyam is bad in law. 12. Thus, in view of the above dictum the order of confiscation passed by the Collector is not sustainable and hence it is hereby set-aside and consequential orders in appeal before Commissioner and revision before the Sessions Court are also set-aside. And it is herewith directed that the vehicle in question be released to the registered owner.