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2022 DIGILAW 1159 (MP)

Suresh Khede v. State of Madhya Pradesh

2022-09-19

ANIL VERMA

body2022
JUDGMENT 1. The petitioner has filed present petition under Section 482 of Cr.P.C. being aggrieved by the impugned order dated 17/02/2022 passed by I Additional Sessions Judge, Barwani in Criminal Revision No.21/2022, whereby the order passed by Judicial Magistrate First Class, Barwani on 04/02/2022 in Crime No.747/2021 under Section 451 and 457 of Cr.P.C. has been affirmed. 2. Brief facts of the case are that on 07/10/2021 police got a discrete information from the informant that on pickup vehicle bearing registration number MP-46-G-1276 is transporting calf illegally from Ganpur Chowkdi to Maharashtra for slaughtering. 3. Act upon the said information, police party reached on the spot and during the search it was found that vehicle was loaded with seven calf without any valid permit, which was seized by the police and offence under Section 4, 6 and 9 of the M. P. Govansh Vadh Pratishedh Adhiniyam, 2004 (in short 'Adhiniyam of 2004) read with Section 11-D of Prevention of Cruelty to Animals Act has been registered against the present petitioner. 4. During the investigation, the petitioner had preferred an application under Section 451 and 457 Cr.P.C. for release of the seized vehicle and the JMFC, Barwani after hearing both the parties rejected the application vide order dated 04/02/2022. The order dated 04/02/2022 was challenged before the Revisional Court but the same was also dismissed vide order dated 17/02/2022. Therefore, present petition has been filed. 5. Learned counsel for the petitioner has contended that the petitioner is the registered owner of the seized vehicle. He was using the vehicle for his business purposes. The trial Court has erred in not considering the important aspect that there is no bar provided under the Adhiniyam of 2004. The seized vehicle is lying in an open area in Police Station and there is no proper arrangement for its care. Vehicle is deteriorating day by day. He further submitted that trial is pending since long before the concerned trial Court and the confiscation proceedings have been finalized against the petitioner before the final judgment of the trial Court. Hence, he prays that both the impugned orders be set aside and the seized vehicle be handed over to the applicant on Supurdagi. 6. He further submitted that trial is pending since long before the concerned trial Court and the confiscation proceedings have been finalized against the petitioner before the final judgment of the trial Court. Hence, he prays that both the impugned orders be set aside and the seized vehicle be handed over to the applicant on Supurdagi. 6. Per contra, learned counsel for the respondent/State opposes the petition and prays for its rejection by submitting that the vehicle in question is the subject matter of confiscation proceeding and the Collector, Barwani has given information regarding the confiscation to the concerned Magistrate and the police officers, therefore, no ground is available to the petitioner to handover the said vehicle. 7. After hearing the rival submissions advanced by learned counsel for the parties and to advert such contention, the relevant provision of the Adhiniyam of 2004 is required to be seen. 8. As per Section 11(5) of the Adhiniyam of 2004, it is clear that in case of any violation of Section 4, 5, 6-A and 6-B, the Police Authorities is empowered to seize the vehicle or cow progeny and beef. The District Magistrate is having power to confiscate the same in a manner prescribed under Rules 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, 6-A and 6-B, 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- rogeny 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 sub-section (1) of Section 11-A of the Act.' 9. 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 sub-section (1) of Section 11-A of the Act.' 9. After perusal of the aforesaid, it is apparent that in the Adhiniyam of 2004 no procedure has been prescribed for the proceedings of confiscation and no rules have been framed under the said Act. On perusal of the aforesaid provisions, it is evident that there is no provision to restrict the jurisdiction of the Judicial Magistrate First Class to release the seized property on interim custody during the pendency of investigation or trial. Where a specific restriction is not made in the provision of the Act, jurisdiction of the Judicial Magistrate cannot be deemed to be ousted. 10. The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003 SC 638 has held as under:- 'The powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. 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 panchnama 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.' 11. The jurisdiction of the Judicial Magistrate First Class is not ousted from releasing the said vehicle on interim custody as there is no rider in the Adhiniyam to restrict the power of the Judicial Magistrate to release the seized vehicle on interim custody. 12. In the case of Mukhtar Husain Vs. State of M.P. [ 2019(II) MPWN 44 ] it has been held that :- '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. 12. In the case of Mukhtar Husain Vs. State of M.P. [ 2019(II) MPWN 44 ] it has been held that :- '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- 766 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.' 13. On the above analysis, it is concluded that the impugned order dated 17/02/2022 passed by the learned First Additional Sessions Judge, Barwani and order dated 04/02/2022 passed by the Judicial Magistrate First Class, Barwani are contrary to the law, therefore, both the orders are hereby set aside and the application of the petitioner for release of vehicle bearing Registration number MP-46-G-1276 is allowed and respondents are directed to release the said vehicle of the petitioner bearing registration number MP- 46-G-1276 on his furnishing adequate security, as directed by the trial Court. The petitioner is also directed that during the pendency of trial, he shall not sale or dispose of the vehicle and shall produce it before the court as and when so directed by the trial Court. The petitioner is also directed that during the pendency of trial, he shall not sale or dispose of the vehicle and shall produce it before the court as and when so directed by the trial Court. In the event of confiscation order by the competent authority or Collector, the applicant shall keep the vehicle present positively for confiscation. 14. Accordingly, this petition is allowed and disposed on the above terms. Certified copy as per rules.