Chattisgarh High Court

Malik Ram Kashyap vs State Of Chhattisgarh on 1 November, 2022

                                    1

                                                               AFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                    Cr.M.P. No. 963 of 2021
      Malik Ram Kashyap, S/o Dhanurjay Kashyap, aged about 42
      years, R/o. Village - Daganiya, Raipur, Distt. -Raipur (C.G.),
      Permanent Residence of Village Kalmidadar, Thana -
      Saliha, Distt. - Balodabajar - Bhatapara (C.G.)

                                                     ---- Petitioner
                                 Versus

      State of Chhattisgarh, Through District Magistrate,
      Balodabajar, Distt. Balodabazar - Bhatapara (C.G.)
                                                 ----Respondent


For Petitioner             :   Mr. Sumit Shrivastava, Advocate.
For Respondent             :   Ms. Akshra Amit, Panel Lawyer.


           Hon'ble Shri Justice N.K. Chandravanshi


01.11.2022

1.    Instant petition under Section 482 of the Code of Criminal
Procedure, 1973 (for brevity "Cr.P.C.) has been preferred by the
petitioner against order dated 02.08.2021 passed by 3 rd Additional
Sessions Judge, Baloda Bazar, District Baloda Bazar- Bhatapara in
Criminal Revision No. 08/2021, affirming the order dated 13.01.2021
passed by Judicial Magistrate First Class, Kasdol, District Balodabajar-
Bhatapara in Criminal Case No. 203/2020, by which, application
preferred by the petitioner under Section 451 of the Cr.P.C. for grant of
temporary custody of the Alto Car bearing registration No. CG 04 HL
7234 (for short "the vehicle') has been dismissed.

2.    Facts

of the case, in brief, are that on 19.09.2020 at about 7.30 PM while checking of the vehicles, aforesaid vehicle was checked by Officer of Forest Department, wherein meat of Chamois (lkaHkj) was found in the Dicky of the said vehicle. On being enquired, the petitioner

told that he has purchased the said meat of Chamois from Goutriha Bariha (co-accused). On a search being made in the house of co- accused Goutriha Bariha various objectionable articles including bone, blood stained Axe, etc, were recovered, thereafter, Authorized Officer registered Crime (P.O.R.) No. 13224/07 for the offence punishable under Sections 2, 9, 27, 29, 32, 39, 44, 48 (a), 50 & 51 of The Wild Life (Protection) Act, 1972 (henceforth "Act, 1972") and arrested the accused persons. After usual investigation, charge-sheet was filed, which is pending consideration before the Judicial Magistrate First Class, Kasdol, District Balodabazar Bhatapara as Criminal Case No. 203/2020.

3. The petitioner, claiming himself to be the registered owner of the vehicle, filed an application under Section 451 of the Cr.P.C. for grant of temporary custody of the said vehicle, which was dismissed by the learned trial Magistrate vide order dated 13.01.2021. Revision preferred by the petitioner against that order was also dismissed by learned Revisional Court vide impugned order dated 02.08.2021. Hence, the petitioner has preferred instant petition under Section 482 of the Cr.P.C. challenging the same.

4. Learned counsel appearing for the petitioner would submit that the petitioner is registered owner of the seized vehicle, which is lying stationed after its seizure. Being machinery article, if the same was not maintained regularly, then it would become useless. It is further submitted that both the courts below completely misconceived the interpretation of statute as the rejection of temporary custody of the vehicle has been made only because Authorized Officer/ Sub Divisional Officer (Forest) has given information to the trial Magistrate that confiscation proceedings of the vehicle has been initiated and, therefore, the trial Magistrate has no authority to grant temporary custody of the vehicle. It is further submitted that rejection of the custody of the vehicle has been made under Section 50(3A) of the Act, 1972 but both the courts below have not considered the provisions

contained in Section 51(2) of the Act, 1972, which contemplates that any forfeiture could be done only when person is convicted of an offence against the Act, 1972. It is, therefore, prayed that petition may be allowed.

5. Learned counsel for the State opposes the arguments and submits that the order passed by the Courts below is well merited, which do not call for any interference of this Court.

6. I have heard learned counsel for the parties and perused the material available on record with utmost circumspection.

7. In the impugned order, learned Revisional Court has not mentioned any provision of the Act of 1972, which would create any bar to make an order of temporary custody by Judicial Magistrate First Class/ trial Court. Only it has been mentioned that since Authorized Officer / Sub Divisional Officer (Forest) has given information under Formate No. 4 on 03.09.2020 that confiscation proceedings has been initiated, therefore, power of Judicial Magistrate First Class to grant temporary custody of the vehicle has been ceased but considering the provisions contained in Section 50 (3)(A) of the Act, 1972 and sub- Section (2) of Section 51 of the Act, 1972, view taken by the both the courts below do not seem to be in accordance with law.

8. At this stage, it would be appropriate to notice the provisions contained in Section 50 and 51 (2) of the Act, 1972, which are extracted below:-

"50. Power of entry, search, arrest and detention.--

(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act,--

(a) require any such person to produce for inspection any captive animal, wild animal, animal article, meat, trophy,

uncured trophy, specified plant or part or derivative thereof in his control, custody or possession, or any licence, permit or other document granted to him or required to be kept by him under the provisions of this Act;

(b) stop any vehicle or vessel in order to conduct search or inquiry or enter upon and search any premises, land, vehicle or vessel, in the occupation of such person, and open and search any baggage or other things in his possession;

(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy, or any specified plant or part or derivative thereof, in respect of which an offence against this Act appears to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel or weapon used for committing any such offence and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest him without warrant, and detain him: Provided that where a fisherman residing within ten kilometres of a sanctuary or National Park, inadvertently enters on a boat, not used for commercial fishing, in the territorial waters in that sanctuary or National Park, a fishing tackle or net on such boat shall not be seized.]

(2) xxx xxx xxxx (3) It shall be lawful for any of the officers referred to in sub- section (1) to stop and detain any person, whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for the purposes of requiring such person to produce the licence or permit and if such person fails to produce the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons or other proceedings which may be taken against him.

(3A) Any officer of a rank not inferior to that of an Assistant Director of Wild Life Preservation or 5[an Assistant Conservator of Forests], who, or whose subordinate, has seized any captive animal or wild animal under clause (c) of sub-section (1) may give the same for custody on the execution by any person of a bond for the production of such animal if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

(4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard].

(5) to (9)        xxx                xxx            xxx


      51. Penalties.-- (1) xxx                xxx          xxx

(2) When any person is convicted of an offence against this Act, the Court trying the offence may order that any captive animal, wild animal, animal article, trophy, 10[uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part or derivative thereof] in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled.

9. On reading of the provisions contained in Section 50 (3A) of the Act 1972 shows that application for temporary custody of the vehicle could not be rejected under this provision, as aforesaid provision is meant for the animal and not for the vehicle. Thus, prima facie it appears that sub-Section 3A of Section 50 of the Act, 1972 was wrongly been interpreted by the Court below. It is also pertinent to mention here that sub Section 4 of Section 50 provides that any things seized under the power in exercise of Section 50 shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the Chief Wild Life Warden or the Officer authorized by him in this regard. It has not been contemplated in the provision contained in Section 50(4) of the Act, 1972 that Magistrate will deal with the seized things according to the provisions of the Act, 1972, rather the word used is "in accordance with law".

10. Reading of sub-Section (2) of Section 51 of the Act, 1972 contemplates that when any person is convicted of an offence against this Act, the order of confiscation of vehicle or goods so used in the commission of the offence would be forfeited to the State Government. Meaning thereby, the forfeiture can be ordered by the Court trying the offence only when person is convicted of an offence against this Act.

11. In the case of State of Madhya Pradesh and others v. Madhukar Rao 1, their Lordships of the Supreme Court while considering the issue, that whether a vehicle or vessel etc. seized

1 (2008) 14 SCC 624

under Section 50(1)(c) of the Act, 1972 is put beyond the power of the Magistrate to direct its release during the pendency of trial in exercise of powers under Section 451 of the Cr.P.C. have held as under :-

"19. We find that the full bench of the High Court has correctly taken the view that the deletion of sub-section (2) and its replacement by sub-section (3-A) in Section 50 of the Act had no effect on the powers of the Magistrate to release the seized vehicle during the pendency of trial under the provisionsof the Code. The effect of deletion of sub-section (2) and its replacement by sub-section (3-A) may be summed up thus: as long as, sub-section (2) of Section 50 was on the Statute Book the Magistrate would not entertain a prayer for interim release of a seized vehicle etc. until an application for release was made before the departmental authorities as provided in that sub- section. Further, in case the prayer for interim release was rejected by the departmental authority the findings or observations made in his order would receive due consideration and would carry a lot of weight before the Magistrate while considering the prayer for interim release of the vehicle. But now that sub-section (2) of Section 50 stands deleted, an aggrieved person has no option but to approach the Magistrate directly for interim release of the seized vehicle."

12. In the aforesaid judgment, Hon'ble Apex Court upheld the view taken by Full Bench of the Madhya Pradesh High Court that Magistrate's power to release a vehicle during the pendency of trial was not, in any way, affected by the legislative changes in the Act and in appropriate cases it was fully open to the Magistrate to pass an order of interim release of a seized vehicle.

13. In view of the above discussion, it is clear that trial Magistrate has jurisdiction to exercise power vested in it under Section 451 of the Cr. P. C. as Supreme Court has reiterated the fact in case of Madhukar

Rao (supra) that when the offence has been committed under the Act of 1972 for interim release of the vehicle, only remedy to the aggrieved person is, to approach the Magistrate for interim release of the seized vehicle.

14. Since the vehicle is said to be stationed in the open place right from the date of its seizure i.e. September, 2020, thus, so many times have been elapsed. It is a matter of common knowledge and experience that when the vehicle is kept standing without any use, care and maintenance, with the passage of time, even a good vehicle loose its road worthiness and several parts of the vehicle got junked and due to that, the vehicle being unworthy of being driven on the road.

15. In the matter Sunderbhai Ambalal Desai Vs. State of Gujarat 2, their Lordships of the Supreme Court have clearly held that in case of articles seized during investigation, they should not be allowed to deteriorate for being kept unused and unattended in the premises of the police station.

16. Considering the entirety of the facts of the case and in view of the aforesaid discussion, reasons assigned by learned trial and affirmed by the revisional court vide impugned order dated 2.8.2021 for rejecting the petitioner's application for grant of temporary custody of the vehicle is not sustainable. Accordingly, I am inclined to allow this petition and release the vehicle in favour of the petitioner.

17. Consequently, the vehicle shall be released in temporary custody of the petitioner, if confiscation order would not have been passed by the Court / Authority till date, on the following conditions :-