Mohd. Danish vs State Of U.P. And 2 Others
2022 Latest Caselaw 1579 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 93
 
Case :- CRIMINAL REVISION No. - 3618 of 2021
 
Revisionist :- Mohd. Danish
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Bibhuti Narayan Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard learned counsel for the revisionist, learned A.G.A. for the opposite party and perused the record.

This criminal revision has been filed by the revisionist against the judgment and order dated 30.10.2021 passed by the Chief Judicial Magistrate, Chandauli in Vehicle Release Application No. 479 of 2021 (State of U.P.Vs. Mustafa and others) and release the vehicle of the the revisionist bearing registration no. U.P. 21CN-2082 Truck (closed body) within time specify by this Hon'ble Court.

Learned counsel for the revisionist has submitted that the revisionist is the registered owner of Truck bearing registration No. U.P. 21CN-2082 and the said vehicle is having National Permit and also was insured with the New Indian Assuarance Company Limited and also having certificate of pollution and fitness.

Learned counsel for the revisionist further submits that an the opposite party no.3 lodged an F.I.R. bearing F.I.R. No. 0095 of 2021 under Section 3/5A/8 U.P. Pradesh Prevention of Cow Slaughter Act, 1955 (in short "Act of 1955"), under Section 11 of the Prevention of Cruelty of Animals Act, 1960 and under Section 379, 411 I.P.C. Police Station, Ali Nager, District Chandauli against one Mustafa and two others namely Mohd. Sohrab and Washir Ali in which vehicle of the revisionist alleged to have been involved.

Learned counsel for the revisionist further submits that the revisionist was also made an accused being owner of the vehicle and he has been released on bail and further submits that the revisionist has moved a release application before the Chief Judicial Magistrate, Chandauli.

Learned counsel for the revisionist further submits that the release application of the revisionist was rejected by the Chief Judicial Magistrate, Chandauli on 30.10.2021 on the ground that the District Magistrate will have power to do all proceedings of confiscation and released of the vehicle.

Learned counsel for the revisionist has submitted that the vehicle is standing in open yard in the police station since long and with the passage of time ultimately it will become junk and after sometime it is not useful for any purpose. Reliance has been placed on the law laid down by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujrat, AIR 2003 SC 638.

Learned counsel for the revisionist has further drawn the attention of the Court regarding the provisions of Sections 451 and 457 of Cr.P.C., which is quoted as under:-

"451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation.- For the purposes of this section," property" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

457. Procedure by police upon seizure of property.

(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

Learned counsel for the revisionist has further submitted that the revisionist is ready to comply with all the conditions, which the lower court will impose while releasing the vehicle. Undisputedly, revisionist is the rightful owner of the vehicle, therefore, the vehicle be released in his favour and the impugned order be quashed.

Learned A.G.A. has opposed the prayer and detailed counter affidavit has been filed. In the counter affidavit it has been stated that the said vehicle of the revisionist has been involved in Case Crime No.95 of 2021 and if the said vehicle is released, there would be possibility to use the said vehicle in another crime in future and therefore, the vehicle cannot be released in favour of the revisionist.

In the rejoinder affidavit filed by the revisionist, it has been stated by the learned counsel for the revisionist that revisionist is an innocent person and has been falsely implicated in the case and the vehicle has nothing do with the alleged offence, therefore, the entire proceedings is against the process of law and is liable to be quashed.

After having heard the learned counsel for the parties, I have carefully gone through the relevant legal provisions and the judgments rendered by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (supra).

The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai, AIR 2003 SC 638 (supra) in para 17 and 21 has been pleased to hold 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 application for return of such vehicles.

21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. Are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This Object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly."

In Nand Vs. State of U.P., 1996 Law Suit (All) 423 this Court has observed that pendency of the confiscation proceedings under Section 72 of the U. P. Excise Act is not a bar for release of the vehicle which is required for the trial under Section 60 of the U. P. Excise Act. It has been clearly observed by this Court in para 7 that:-

"I think it is not proper to allow the truck to be damaged by remaining stationed at police station. Admittedly, the ownership of the truck is not disputed. The State of Uttar Pradesh does not claim its ownership. Therefore, I think it will be proper and in the larger interest of public as well as the revisionist that the revisionist gives a Bank guarantee of Rs. 2 lakhs before the C.J.M., Kanpur Dehat and files a bond that he shall be producing the truck as and when needed by the criminal courts or the District Magistrate, Kanpur Dehat, and he shall not make any changes nor any variation in the truck."

This Court further has held in the case of Jai Prakash Vs. State of U.P., 1992 AWC 1744 that mere pendency of confiscation proceedings before the Collector is no bar to release the vehicle.

In Kamaljeet Singh Vs. State of U.P., 1986 U.P. Cri. Ruling 50 (Alld), the same view was taken by this court that pendency of confiscation proceedings shall not operate as bar against the release of vehicle seized u/s 60 of Excise Act.

In the opinion of this Court, it is not disputed that the power under Section 451 of Cr.P.C. is not properly and widely used by the court below while passing the orders. The power conferred under Section 451 of Cr.P.C. be exercised by the court below with judicious mind and without any unnecessarily delay, so that the litigant may not suffer. Merely keeping the article in the custody of the police in the open yard will not fulfill any purpose and ultimately it result the damage of the said property. The owner of the property be allowed to enjoy the fruits of the said property for the remaining period for which the property is being made.

It is further observed that as per the amendment made in Section 5 (A) of the Act, 1955 in year 2020, now the power lies with the District Magistrate to seize or release the vehicle. The facts on record show that a case has been registered against one Mustafa and two others namely Mohd. Sohrab and Washir Ali in which vehicle of the revisionist alleged to have been involved bearing F.I.R. No. 95 of 2021 under Section 3/5A/8 U.P. Pradesh Prevention of Cow Slaughter Act, 1955 (in short "Act of 1955"), under Section 11 of the Prevention of Cruelty of Animals Act, 1960 and under Section 379, 411 I.P.C. Police Station, Ali Nager, District Chandauli. It would be tried by the competent court and thereby taking note of Section 7 and 5A of Act of 1955, the seized vehicle can be released by the court which would try the case by exercising powers, as exist under section 457 Cr.P.C.

No purpose remains to keep the vehicle stationery during the period of trial and therefore release of vehicle can be permitted in a given case by the court trying the case.

Further in the opinion of this Court, the procedure as contemplated under Section 457 of Cr.P.C. be also followed promptly, so that the concerned Magistrate may take prompt decision for disposal of such properties and be released in favour of the entitled person of the said property. Keeping the said property in the custody will not solve any purpose and that gives a mental and financial torture to the owner of the said property which is also against the law and against the principles of natural justice.

As per the legal propositions mentioned above and keeping in view this fact that undisputedly the revisionist is the registered owner of the seized vehicle and the ownership of the vehicle is not in dispute, neither the State or any other person has claimed their ownership over the vehicle, therefore, no useful purpose will be served in keeping the vehicle stationed at the police station in the open yard for a long period allowing it to be damaged with the passage of time.

In view of the above facts and circumstances of the case, the impugned order is not sustainable in the eyes of law and require interference by this court.

Accordingly, the criminal revision is allowed and the impugned order dated 30.10.2021 passed by Chief Judicial Magistrate, Chandauli is set aside and the case is remitted back to the concerned court to pass a fresh speaking and reasoned order keeping in view of the settled law laid down by Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai, AIR 2003 SC 638 within a period of two months from the date of production of certified copy of this order in accordance with law.

Order Date :- 27.4.2022

Arvind