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Madhya Pradesh High Court · body

2019 DIGILAW 151 (MP)

Mukhtar Husain v. State of M. P.

2019-02-15

SANJAY DWIVEDI

body2019
ORDER 1. In pursuance to the order-sheet dated 31.1.2019, the matter is heard finally. 2. The instant petition has been filed by the petitioner against the order dated 1.12.2018 passed in Criminal Revision No. 50/2018 decided by the District and Sessions Judge, Panna. 3. On 20.7.2018 the petitioner's vehicle Bolero Pick-up bearing registration No. UP90-T-2766 was transporting five buffaloes. The Sub Inspector of Police Station Ajaygarh has made a sudden inspection and checked the vehicle in question and found that five buffaloes were being transported in very cruel manner, therefore, he seized the vehicle on the spot alongwith Buffaloes. An FIR was also registered against the driver vide Crime No. 244/2018 for the offence punishable under section 11(d) of Prevention of Cruelty to Animals Act, 1960 (for brevity "Act, 1960") read with section 66/192 of the Motor Vehicles Act, 1988. 4. During the pendency of the investigation, the petitioner preferred an application under section 457 of CrPC asking for release of the vehicle bearing registration No. UP90-T-2766. The said application was rejected by the trial Court on the ground that the vehicle sought to be released cannot be released as the proceeding for its confiscation is being initiated. Thereafter, a criminal revision was preferred against the order of JMFC but revision was also dismissed by the District and Sessions Judge, Panna vide order dated 1.12.2018 giving reference of the order of the JMFC and also taking note of the letter dated 20.7.2016 written by Station Incharge Ajaygarh District Panna to District Magistrate Panna for initiating confiscation proceeding against the vehicle seized and in response to the same, the Collector Panna vide letter dated 24.9.2018 intimated the JMFC Ajaygarh that in Crime No. 244/2018 the proceeding for confiscation is being initiated for the seized vehicle bearing registration No. UP90-T-2766. Considering the same, the revisional Court rejected the application observing that the proceeding of confiscation for seized vehicle since already initiated by the Collector, therefore, the vehicle cannot be released. Considering the same, the revisional Court rejected the application observing that the proceeding of confiscation for seized vehicle since already initiated by the Collector, therefore, the vehicle cannot be released. The objection was raised regarding competency and jurisdiction of the Collector for confiscation of the vehicle but the revisional Court has rejected the said objection on the ground that no law has been shown to him by the petitioner that the Collector Panna has no jurisdiction to initiate confiscation proceeding and further nothing has been shown by the petitioner as to whether the JMFC has any competence to determine the said question about the competency of the Collector to initiate confiscation proceeding of the seized vehicle and accordingly the order of JMFC was found prefect and revision was dismissed. 5. In the present petition, the petitioner is mainly contending that under the provisions of Act, 1960, the Collector has no authority to initiate the confiscation proceeding of a seized vehicle. The learned counsel for the petitioner further submits that the order if any passed by the Collector for confiscating the vehicle, is without jurisdiction and therefore the vehicle seized by the police be released. 6. Since this Court vide order dated 12.12.2018 granted order of status quo in respect of the confiscation proceeding, therefore, no further action was taken in respect of the proceeding of confiscation of the vehicle. 7. The State was given time to file their response so also to seek instructions regarding competence of the Collector, however, instead of filing the reply to the petition, an application for vacating of status quo order dated 12.12.2018 has been filed by the State mentioning therein that under section 102 of CrPC the Police Officer is competent to seize any material including the vehicle if found involved in any offence which shows that nothing wrong has been committed by the police authority as well as the Collector for initiating the confiscation proceeding against the seized vehicle. The respondents have requested for vacating the order of status quo passed on 12.12.2018. 8. The learned counsel for the respondents has also raised objection regarding maintainability of the petition on the ground that against the order passed in criminal revision, the petitioner should have filed appropriate proceedings under section 482 of CrPC. The respondents have requested for vacating the order of status quo passed on 12.12.2018. 8. The learned counsel for the respondents has also raised objection regarding maintainability of the petition on the ground that against the order passed in criminal revision, the petitioner should have filed appropriate proceedings under section 482 of CrPC. However, this objection is rejected for the reason that this Court on 12.12.2018 granted interim order and on subsequent dates, the Court has not considered this objection, but directed the respondents-authority to seek instructions. Even otherwise, when the question of competency about confiscation of vehicle is involved, this Court under the supervisory jurisdiction can also decide the said issue. Therefore, the objection raised by the respondents regarding maintainability of this petition is rejected. 9. Again adverting to the order dated 12.12.2018 passed by this Court, it is very specifically observed that the State has no power to confiscate the vehicle under the provisions of Act, 1960 and as such direction was given to Government Advocate to seek instructions despite that in the application submitted for vacating of the stay order, there is no mention about the competency of the Collector for initiating the confiscation proceeding under the Act, 1960. Although they relied upon section 102 CrPC stating that under the said provision, a police officer investigating the matter has full right to seize the vehicle. Surprisingly, the respondents are not trying to understand that the seizure and confiscation are different from each other. 10. So far as section 102 of CrPC is concerned, it deals with the seizure of vehicle and other articles but here question is not of seizure, but the seized vehicle was refused to be released on the ground that the Collector had issued a letter informing the vehicle owner and also to the Court that confiscation proceeding of the seized vehicle is under process. 11. During the course of arguments, on being queried by the respondents about the specific provision under the Act, 1960 showing competence of the Collector, it is argued that under section 102 of CrPC, the same can be done. To bolster his contention, the learned counsel for the respondents has relied upon a decision of Madras High Court rendered in CRL. R.C. Nos.871 and 872 of 2015 (Subba Rao Jaladi v. State by Sub Inspector of Police, Tharamangalam Police Station). To bolster his contention, the learned counsel for the respondents has relied upon a decision of Madras High Court rendered in CRL. R.C. Nos.871 and 872 of 2015 (Subba Rao Jaladi v. State by Sub Inspector of Police, Tharamangalam Police Station). A perusal of the said order shows that the Court after taking note of section 102 CrPC has clarified that under said section power has been provided to police officer to seize any property which may be alleged or suspected to have been found involved in commission of an offence but nowhere the Court has considered about the confiscation of the vehicle. 12. Indubitably, I am of the opinion that section 102 of CrPC, in the present circumstance, is not relevant because the petitioner's application for release of vehicle seized under the offence registered under the provisions of Act, 1960 has been refused on the ground that the Collector has intimated that confiscation proceeding of the vehicle seized has to be initiated. Thus, the question has been raised by the petitioner as to under the provisions of Act, 1960 the Collector has any power to confiscate the vehicle or not. Accordingly, the stand taken by the respondents is without any substance because they rely upon section 102 of CrPC which deals with the seizure of vehicle found or suspected to be involved in any cognizable, but seizure and confiscation are two distinct things. As far as the confiscation of vehicle or any material found involved in the offence is concerned, it is proposed only when a particular statute provides such power. Here in the provisions of Act, 1960 there is no provision available which provides power to confiscate the vehicle found involved in offence registered under the provisions of Act, 1960. 13. The observation made by the revisional Court is not proper that the JMFC has no competence to determine whether the Collector has any power to confiscate the vehicle or not. 13. The observation made by the revisional Court is not proper that the JMFC has no competence to determine whether the Collector has any power to confiscate the vehicle or not. When a specific question was raised before the JMFC as well as before the revisional Court about competency of the Collector for initiating the confiscation proceeding of the vehicle, it was the duty of the Court to determine as to whether that power is vested with the Collector or not but without dealing with the said question, rejecting the application for release of vehicle only on the ground that the confiscation proceeding is proposed by the Collector, the request of release of vehicle should not have been turned down. Therefore, in my opinion the order passed by the JMFC as well as the revisional Court are not sustainable in the eyes of the law, therefore, they are set aside. The application submitted by the petitioner for release of the vehicle bearing registration No. UP90-T-2766 is allowed and the respondents are directed to release the seized vehicle of the petitioner bearing registration No. UP90- T-2766 on his furnishing adequate security as directed by the trial Court. The petitioner is also directed that during the pendency of the trial, he shall not sell or dispose of the vehicle and shall produce before the Court as and when so directed by the trial Court. 14. Accordingly, this petition is allowed and disposed of with the above terms.