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Madhya Pradesh High Court · body

2016 DIGILAW 169 (MP)

Nitesh S/o. Dhannalal v. State of Madhya Pradesh

2016-02-29

ALOK VERMA

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JUDGMENT : Alok Verma, J. This application under section 482 of Cr.P.C. is directed against the order passed by learned Additional Sessions Judge, Indore in Criminal Revision No.436/2015 dated 28.08.2015. 2. The relevant facts for disposal of this case are that the vehicle bearing registration No. MP-43-G- 0842 belonging to the present applicant was intercepted and searched and it was found that 9 cow progeny were being transported in the vehicle. Present applicant was arrested from the spot as owner and driver of the vehicle and co-accused Sheikh Abdul S/o Sheikh Ahmad was arrested being owner of the cow progeny. Crime No.69/2012 at Police Station-Dhangaon, District-Khandwa was registered under section 4, 6, 9 of Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam and section 11 (c) of Cruelty against Animals Act was registered. The charge-sheet was filed before the concerning Judicial Magistrate First Class, Khandwa. The vehicle was handed over to the present applicant on supurdaginama by this Court in MCRC No.8764/2012 vide order dated 09.08.2012. The concerning District Magistrate initiated proceedings for confiscation of the vehicle while criminal case was pending before the JMFC, Khandwa. It is alleged that without affording any opportunity of cross examining the prosecution witness, the concerning District Magistrate passed an order of confiscation against which present applicant went in appeal before the Commissioner, Indore which was also dismissed vide order dated 22.05.2015 against which, revision was filed in the Sessions Court, which was decided by the Additional Sessions Judge by the impugned order. The revision was also dismissed. 3. Aggrieved by the impugned order, present application is filed placing reliance on the judgment of this Court in the case of Raees v. State of MP reported in 2013 (5) MPHT 233 : 2014 (4) FLT 107 (MP) in which it was held that while the confiscation proceeding was going on, the vehicle may be handed over on interim custody under section 451 of Cr.P.C. 4. However, in this case, the vehicle is already ordered to be confiscated by the two courts below and also revision filed before the Sessions Court has been dismissed by the impugned order. 5. Similar matter came for consideration before this Court in MCRC No.593/2015. However, in this case, the vehicle is already ordered to be confiscated by the two courts below and also revision filed before the Sessions Court has been dismissed by the impugned order. 5. Similar matter came for consideration before this Court in MCRC No.593/2015. While disposing of the application by order dated 24.08.2015, the Court framed following questions:- (i) whether, under MP Govansh Vadh Pratishedh Adhiniyam and Rules made there under known as MP Govansh Vadh Pratishedh Rules, 2012 confiscation proceeding can continue parallel to the criminal proceeding pending before the Court of Judicial Magistrate; and (ii) whether, an order, ordering confiscation of the vehicle and cow progeny can only be passed after conclusion of trial before the Judicial Magistrate in which it was held that offence under the Act was committed and the vehicle was used for transporting cow progeny for slaughtering. 6. This Court took into consideration the relevant provision of MP Govansh Vadh Pratishedh Adhiniyam and Rules framed thereunder and also relevant provisions of the Forest Act. Taking into consideration all the provisions of the aforesaid Acts, this Court observed in para 7 to 14 in the aforesaid order as under:- "7. The provisions of Indian Forest Act and the amendment incorporated therein was considered by the Coordinate Bench of this Court in the case of Ramniwas v. Game Range Chambal Santuary, Bhind, Headquarter, Ambah, District-Morena reported in 2012 (2) MPLJ 661 . 8. The Court compared analogous provisions in Bengal Amendment Act, 1927 and observed by placing reliance on the judgment of Hon'ble the Supreme Court in the case of State of West Bengal and others v. Sujeet Kumar Rana 2004 (4) SCC 159 in para 17 reads as under:- 17. The principles which can be culled out from the provisions of the 1927 Act and the judgment in Sujeet Kumar Rana's case (supra) are as under:- (i) Forest Act is a Special Act; (ii) M.P. Amendments provide a complete Code in itself by giving sufficient safeguards both substantive and procedural against any arbitrary exercise of power. It also prescribe hierarchy of adjudicatory bodies; (iii) Section 52-C creates a bar on the jurisdiction of courts as described in it. It also prescribe hierarchy of adjudicatory bodies; (iii) Section 52-C creates a bar on the jurisdiction of courts as described in it. Because of non-obstante clause used in Section 52-C it will have an overriding effect on other laws including general provisions of Cr.P.C.; (iv) Once intimation of initiation of confiscation proceedings is given to Magistrate, the jurisdiction of Magistrate is ousted; (v) Magistrate and revisions Courts can't grant interim custody of vehicle de hors the bar of Section 52-C. (vi) Once confiscation proceeding is initiated, the jurisdiction of criminal courts in terms of Section 52-C of the 1927 Act is barred, the High Court also cannot exercise its jurisdiction under section 482 Cr.P.C. for interim release of such vehicle/property. 9. Thus, it may be seen that amendment in the Madhya Pradesh in Indian Forest Act provides a complete code in itself and also section 52 (c) quoted above have overriding effect on other laws including general provisions of Cr.P.C. However, in MP Govansh Vadh Pratishedh Adhiniyam (hereinafter referred to as the Act), such analogous provisions are not incorporated and, therefore, the Coordinate Bench of this Court in the case of Sheikh Kalim v. State of MP in MCRC No.1296/2015 dated 13.07.2015 placed reliance on the judgment of Full Court decision in the case of Madhukar Rao v. State of MP and others reported in 2000 (1) JLJ 304 and also on the judgment of Hon'ble the Supreme Court in the case of State of MP and others v. Madhukar Rao reported in 2008 (1) JLJ 427 and observed that when the trial Court did not find the accused guilty of alleged offence under the Act, confiscation of the property is not possible. 10. Before proceeding further, the observations made in the case of Madhukar Rao (supra) by the Full Bench of this Court may be quoted here with some benefit in para 18 of the judgment:- 18. 10. Before proceeding further, the observations made in the case of Madhukar Rao (supra) by the Full Bench of this Court may be quoted here with some benefit in para 18 of the judgment:- 18. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - If the argument on behalf of the State is accepted a property seized on accusation would become the property of the State and can never be released even on the compounding of the offence. The provisions of Clause (d) of Section 39 have to be reasonably and harmoniously construed with other provisions of the Act and the Code which together provide a detailed procedure for the trial of the offences. If, as contended on behalf of the State, seizure of property merely on accusation would make the property to be of the Government, it would have the result of depriving an accused of his property without proof of his guilt. On such interpretation Clause (d) of Section 39 (1) of the Act would suffer from the vice of unconstitutionality. The interpretation placed by the State would mean that a specified officer under the Act merely by seizure of property of an accused would deprive him of his property which he might be using for his trade, profession or occupation. This would be a serious encroachment on the fundamental right of a citizen under Article 19 (1)(g) of the Constitution to carry on his trade, occupation or business. The power thus would be exercised by an Executive Officer and without any proof of commission of an offence. Such arbitrary and uncannalised powers cannot be allowed to any Executive Authority. That would be against basic structure of the Constitution. The Constitution envisages trial of offences by an independent judiciary. An interpretation which would render Clause (d) of Section 39 (1) to be unconstitutional has to be eschewed and interpretation which makes it constitutional should be preferred. Such arbitrary and uncannalised powers cannot be allowed to any Executive Authority. That would be against basic structure of the Constitution. The Constitution envisages trial of offences by an independent judiciary. An interpretation which would render Clause (d) of Section 39 (1) to be unconstitutional has to be eschewed and interpretation which makes it constitutional should be preferred. See the following observations of the Supreme Court in Kedarnath v. State of Bihar ( AIR 1962 SC 955 ) : "It is well settled that if certain provisions of law, construed in one way, would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction." 11. The matter travelled upto Hon'ble the Supreme Court where the Supreme Court in the case of State of MP and others v. Madhukar Rao (supra) observed as under:- 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. 12. Reverting back to the provisions of the Act, we find that section 11(5) which was inserted by the amended Act in the year 2010 and which was notified to be effective from 05.03.2012, section 11(5) of the Act is inserted by the aforesaid amendment provides thus:- In case of any violation of Section 4, 5, 6, 6A and 6B, the police shall be empowered to seize the vehicle, cow progeny and beef, and the District Magistrate shall confiscate such vehicles, cow progeny and been in such manner as may be prescribed. 13. This section gives power to the District Magistrate for confiscation of the vehicle used in the offence under the Act and also the beef and the animals which were transported for slaughter. 13. This section gives power to the District Magistrate for confiscation of the vehicle used in the offence under the Act and also the beef and the animals which were transported for slaughter. However, in section 11(5) provides that the manner in which such confiscation is to be done, should be provided by the State Government under section 17 of the Act which gives power to the State Government to frame rules for carrying out the provisions of this Act, in the year 2012 itself, Rules 5 and 6 quoted above were notified. Rule 5 provides that confiscation by the Collector should be done in the following manner and Sub Rule (i) of Rule 5 only provides that "he shall take possession of the vehicle". No such procedure is provided in Indian Forest Act. So far as the District Magistrate is concerned, the provisions of section 100 of Cr.P.C. cannot be applied because provisions of section 100 of Cr.P.C. pertain to search and seizure and not confiscation of the property. Search and seizure is to be done by the police officer or any person authorised by the competent authority on the spot while confiscation is to be done by the District Magistrate when the property is placed before him. 14. Therefore, in the considered opinion of this Court, the manner in which the property is to be confiscated, is not provided by the Act and the rules and, therefore, applying the principles laid down in the case of Madhukar Rao (supra), the District Magistrate has no power to confiscate the vehicle till it is held by the competent court of Magistrate that offence was in fact committed and the vehicle was used in commission of the offence. In this view of the matter, the questions framed in para 4 may be answered thus:- (i) The proceedings for confiscation before the District Magistrate can continue, however, no final order can be passed. (ii) Final order in the proceedings can be passed only after conclusion of trial before the Judicial Magistrate in which it was held that offence under the Act was committed and the vehicle was used for transporting cow progeny for slaughter. 7. (ii) Final order in the proceedings can be passed only after conclusion of trial before the Judicial Magistrate in which it was held that offence under the Act was committed and the vehicle was used for transporting cow progeny for slaughter. 7. Consequently, the order passed by the Collector is against the principles laid down by Hon'ble the Supreme Court in the case of Madhukar Rao (supra) and is liable to be set aside and so is the order passed by the Commissioner in appeal. 8. As the learned Additional Sessions Judge did not take this aspect of the matter into consideration, the order passed by learned Additional Sessions Judge is also not in line with principle laid down in aforementioned cases and liable to be set aside. 9. Accordingly, this application under section 482 of Cr.P.C. deserves to be allowed and is hereby allowed. Resultantly, the order passed by District Magistrate dated 02.12.2014, order passed by the Commissioner, Indore dated 22.05.2015 and the impugned order passed by learned Additional Sessions Judge, Indore in Criminal Revision No.437/2015 dated 28.08.2015 are set aside. The District Magistrate, Khandwa, is at liberty to initiate proceedings for confiscation after conclusion of trial by the concerned Magistrate, in case, it is found that offence was committed by the accused and the vehicle in question was used in commission of the crime. Till then, the seized vehicle bearing registration No. MP-43-G-0842 which was given on interim custody to the present applicant shall remain in custody of the applicant till suitable orders for its final disposal are passed by the trial Court. 10. With the aforesaid observations and directions, this M.Cr.C. stands disposed of. C.c. as per rules.