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2021 DIGILAW 207 (MP)

Aslam v. State of M. P.

2021-02-23

SUJOY PAUL

body2021
ORDER : Sujoy Paul, J. 1. This petition filed under section 482 of the Cr.P.C. assails the order dated 21.09.2020 passed by Judicial Magistrate First Class, Garoth District Mandsaur and also revisional order dated 13.10.2020 Annexure A/4, whereby the criminal revision no. 59/2020 filed by the petitioner was dismissed by the Court below. 2. Learned counsel for the petitioner advanced two fold submissions:- (i) The petitioner is being tried for allegedly committing offence under section 4, 6, 10 of Govansh Vadh Pratishedh Adhiniyam, and 11(A)(D) of the Prevention of Cruelty to Animal Act and 429 of the IPC. Under those penal enactments, there is no impediment like one exists in the Excise Act, that if intimation is given to the Collector regarding confiscation proceedings, the vehicle cannot be given at Supurdginama. (ii) Learned JMFC and Revisional Court have missed the point and despite fulfilling the requirement of granting the vehicle on Supurdginama, rejected it based on merits of the case, whereas the real parameters are laid down by Hon'ble the Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283. The principles laid down therein were recently followed by this Court in M.Cr.C No. 23768/2020 (Mohd. Shakir Vs. State of MP) decided on 08.09.2020. 3. In view of this order, the impugned order may be set aside and the vehicle may be given to him on Supurdginama. 4. The prayer is opposed by the learned counsel for the respondent/State. 5. No other point is pressed by the learned counsel for the parties. 6. I have heard learned counsel for the parties at length and perused the record. 7. A conjoint reading of both the impugned orders makes it clear that argument of learned counsel for the applicant has substantial force. The impugned orders are passed considering the nature of accusation and not on the basis of parameters which are relevant for the purpose of release of vehicle on Supurdginama. In Sunderbhai Ambalal Desai case (Supra), the Hon'ble Supreme Court has held as under:- 17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. In Sunderbhai Ambalal Desai case (Supra), the Hon'ble Supreme Court has held as under:- 17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. (Emphasis supplied) 8. The said principle is followed by this Court in the case of Moh. Shakir's case (supra). Pertinently, the allegations against Moh. Shakir were also arising out of Govansh Vadh Pratishedh Adhiniyam Prevention of Cruelty to Animal Act and relevant provisions of IPC. The coordinate bench after considering the relevant judgments opined as under:- 7. In the case of Raees V/s. State of M.P., 2013 (5) MPHT 233 , this Court has held as under: "5. After hearing the rival submissions advanced by the learned counsel for the parties and to advert such contention the relevant provision of Adhiniyam of 2004 is required to be seen. As per Section 11 (5) of the Adhiniyam of 2004 it is clear that in case of any violation of Section 4, 5, 6A and 6B, the Police Authorities are empowered to seize the vehicle or cow progeny and beef. The District Magistrate is having power to confiscate the same in a manner prescribed. Rule 5 and 6 of the Rules of 2012, which deals, confiscation, and appeal are relevant, however, it is reproduced as under:- "Rule-5 Confiscation by District Magistrate,-In case of any violation of section 4, 5, 6, 6A and 6B, the police shall be empowered to seize the vehicles, cow progeny and beef as per the provisions of section 100 of Criminal Procedure Code, 1973 (No. 2 of 1974) in following manner:- (i) He shall take possession of the vehicle; (ii) He shall intimate the Veterinary Department to take in custody of the cow-progeny and beef. (iii) The beef of cow-progeny shall be disposed of by the department by such procedure as he deems fit. (iii) The beef of cow-progeny shall be disposed of by the department by such procedure as he deems fit. Rule-6 Manner of Appeal.-Any person aggrieved by an order of confiscation under sub-section (5) of section 11 of the Act, may prefer an appeal in writing to the Divisional Commissioner within thirty days of the date of knowledge of such order. Every appeal shall be made under subsection (1) of section 11-A of the Act." 6. On perusal of the aforesaid it is apparent that in the aforesaid rules the procedure has been prescribed for confiscation and against the said order the appeal may be maintained before the Divisional Commissioner. After going through the provisions of "the Adhiniyam of 2004" as well as the "Rules of 2012" the bar of jurisdiction of the criminal Court to grant interim custody of property as specified in Section 451 of Cr.P.C. is not there. Similarly under the Prevention of Cruelty to Animals Act, 1960, there is no bar to grant interim custody. Therefore, it is to be held that the application under Section 451 of the Cr.P.C. filed by any persons aggrieved, seeking interim custody of the vehicle, cow progeny and beef can be entertained by the Criminal Courts. Here to deal with the argument of learned Government Advocate that grant of interim custody on receiving intimation of confiscation is not proper; it is relevant to note that in Madhya Pradesh Excise Act, 1951 Section 47-A specifies the confiscation of seized intoxicant article, equipments, utensils, characters and materials. Section 47-D creates a bar of jurisdiction of the Criminal Court under the circumstance when an intimation as per Clause (a) of Sub-section (3) of Section 47-A of the said Act has been sent to the Court by Collector then the power of criminal Court to grant interim custody is ousted. But as stated herein above either in the Adhiniyam of 2004 or in the Rules of 2012 or under the Prevention of Cruelty to Animals Act, 1960 no such statutory bar over the criminal court to entertain the application under Section 451, Cr.P.C. is, there, however, the said argument is not supported by law, hence, repealed. 7. But as stated herein above either in the Adhiniyam of 2004 or in the Rules of 2012 or under the Prevention of Cruelty to Animals Act, 1960 no such statutory bar over the criminal court to entertain the application under Section 451, Cr.P.C. is, there, however, the said argument is not supported by law, hence, repealed. 7. In the sequel of the aforesaid fact and after going through the provisions of Adhiniyam of 2004 and the Rules of 2012 it is clear that the District magistrate is having power to confiscate the vehicle, cow progeny and beef in a manner prescribed. The rules specifies the procedure for confiscation and after passing the order of confiscation an appeal shall lie to Divisional Commissioner. Until the order of confiscation is passed by the District magistrate, the initiation of action for confiscation is not assailable by filing the appeal Thus, after seizure of vehicle for the offences under the Adhiniyam 2004 or the Prevention of Cruelty to Animals Act, 1960 during pendency of the trial or proceedings for confiscation if an application under Section 451, Cr.P.C. has been filed, the criminal Courts are competent to pass the order of interim custody in accordance with law. 8. In the present case looking to the observations made by the two Courts below it is clear that the order of confiscation has not yet been passed by the District Magistrate and the proceedings are pending before him, however, refusal of the interim custody by the two Courts below is unsustainable in law. It is relevant to note to entertain the application for interim custody by the Criminal Court has not been specific in the Rules, but looking to the fact, against the order of confiscation passed by District Magistrate, the recourse of filing an appeal has been specified, in Rule 6 to the Divisional Commissioner, therefore, the Criminal Court may refrain to grant the interim custody of the vehicle, cow progeny and beef after passing the order of confiscation, however, applying the self imposed restrictions and taking note of the procedure prescribed after the order of confiscation, until and unless, the exceptional circumstances is prevalent, order passing the interim custody ought to be avoided by the Criminal Courts. After the confiscation order parties may be relegated to take recourse as permissible under the provisions of the Adhiniyam and the Rules. 9. After the confiscation order parties may be relegated to take recourse as permissible under the provisions of the Adhiniyam and the Rules. 9. It is to be noted here that keeping the custody of the vehicle, cow progeny and beef for a long time with the prosecution agency, is also not in the fair administration of the justice. Hon'ble the Apex Court in the case of Sunderbhai Ambalal Desai (supra) has emphasized the need for disposal of the property pending trial. It has been observed by the Apex Court that the Court should exercise such power expeditiously and judiciously because it would serve various purposes namely:- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. Court or the police would not be required to keep the article in safe custody; 3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. The jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles." 8. In view of the above, the impugned order of refusal of interim custody of the vehicle passed by the learned JMFC and affirmed by the revisional Court are liable to be set aside. (Emphasis supplied) 9. At the cost of repetition, in the opinion of this Court, both the courts below have missed the real point and applied wrong test for the purpose of deciding the question of release of vehicle. 10. Consequently, the present petition stands allowed. Both the orders dated 21.09.2020 & 13.10.2020 are set aside. It is directed that on proving original registration of ownership of the vehicle by the applicant and on furnishing personal bond in the amount of Rs. 4,00,000/- (Rs. Four Lakhs Only) with one surety in the like amount to the satisfaction of JMFC/CJM concerned, the aforesaid Bolero pick up vehicle bearing registration no. MP-14-GC-1348 be released subject to comply the following conditions:- (i) The petitioner shall not change the original nature/colour of the vehicle. (ii) The petitioner shall not alienate or transfer the said vehicle to any third party or shall not create any interest of third party. MP-14-GC-1348 be released subject to comply the following conditions:- (i) The petitioner shall not change the original nature/colour of the vehicle. (ii) The petitioner shall not alienate or transfer the said vehicle to any third party or shall not create any interest of third party. (iii) The petitioner shall produce the said vehicle before the Court as and when directed by the Court during trial at his own risk and cost. (iv) In case, in the opinion of the court the petitioner does not produce the vehicle in the condition in which it was given in his possession, the petitioner shall pay the amount which would be determined by the court. (v) In case of confiscation of the vehicle by the Competent Authority, the petitioner shall produce the vehicle in the same condition in which it was given in his possession and if the Competent Authority found that the vehicle is not found in the same condition, then he shall pay the cost in lieu thereof as determined by the Competent Authority.