Jharkhand High Court

Amit Kumar Singh vs The State Of Jharkhand on 13 July, 2021

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Criminal Revision No.1463 of 2017
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            Amit Kumar Singh                           ...           ...      Petitioner
                                   Versus
            The State of Jharkhand                     ...           ...      Opposite Party
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               CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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            For the Petitioner            : Mr. Awnish Shankar, Adv.
            For the State                 : Mr. Ravi Prakash, A.P.P.
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The matter was taken up through Video Conferencing. Learned counsel for the parties had no objections with it and submitted that the audio and video qualities are good.

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04/13.07.2021: Heard the learned counsel for the parties.

2. The present revision application has been filed against the impugned order dated 14.09.2017 passed in Sessions Trial No.220 of 2017 by the learned Additional Sessions Judge-XII, Hazaribag in connection with Tatijhariya P.S. Case No.13 of 2017, corresponding to G.R. No.1035 of 2017, whereby the Maruti Alto Car bearing registration No.JH-02AA-0684 has not been released in favour of the owner of the vehicle.

3. It has been submitted that the release of the vehicle has been denied only on the ground that Section 51 of the Wild Life (Protection) Act has also been included in the accusation.

4. Counsel for the State has opposed the prayer, submitting that the nature of allegation does not justify the release of the vehicle.

5. It is settled principle of law that tools or any property used in the commission of crime are not punished rather the owner is punished by confiscating the tools or properties. Section 451 of the Cr.P.C. deals with the interim release of the mudammal or the property which has been used for the commission of any offence. In the present case, the vehicle in question has been used for committing offence under the Wild Life (Protection) Act. Law regarding the release of the vehicle has been dealt by the Hon'ble Apex Court in the Judgment reported in (2008) 14 SCC 624 in the case of State of M.P. v. Madhukar Rao. The relevant portion of the said judgment is quoted hereinbelow:-

"This judgment will dispose of four appeals in all of which the same question arises for consideration. The question is: whether a vehicle or vessel, etc. seized under Section 50(1)(c) of the Wild Life (Protection) Act, 1972 (hereinafter referred to as "the Act") 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 Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code")?

16. We are unable to accept the submissions. To contend that the use of a vehicle in the commission of an offence under the Act, without anything else would bar its interim release appears to us to be quite unreasonable. There may be a case where a vehicle was undeniably used for commission of an offence under the Act but the vehicle's owner is in a position to show that it was used for committing the offence only after it was stolen from his possession. In that situation, we are unable to see why the vehicle should not be released in the owner's favour during the pendency of the trial.

17. We are also unable to accept the submission that Section 50 and the other provisions in Chapter VI of the Act exclude the application of any provisions of the Code. It is indeed true that Section 50 of the Act has several provisions especially aimed at prevention and detection of offences under the Act. For example, it confers powers of entry, search, arrest and detention on Wild Life and Forest Officers besides police officers who are normally entrusted with the responsibility of investigation and detection of offences; further sub- section (4) of Section 51 expressly excludes application of Section 360 of the Code and the provisions of the Probation of Offenders Act to persons eighteen years or above in age. But it does not mean that Section 50 in itself or taken along with the other provisions under Chapter VI constitutes a self-contained mechanism so as to exclude every other provision of the Code. This position becomes further clear from sub-section (4) of Section 50 that requires that any person detained, or things seized should forthwith be taken before a Magistrate.

18. Sub-section (4) of Section 50 reads as follows: "50. (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." It has to be noted here that the expression used in the sub-section is "according to law" and not "according to the provisions of the Act". The expression "according to law" undoubtedly widens the scope and plainly indicates the application of the provisions of the Code.

23. Learned counsel submitted that Section 39(1)(d) of the Act made the articles seized under Section 50(1)(c) of the Act as government property and, therefore, there was no question of their release. The submission was carefully considered by the Full Bench of the High Court and on an examination of the various provisions of the Act it was held that the provision of Section 39(1)(d) would come into play only after a court of competent jurisdiction found the accusation and the allegations made against the accused as true and recorded the finding that the seized article was, as a matter of fact, used in the commission of offence. Any attempt to operationalise Section 39(1)(d) of the Act merely on the basis of seizure and accusations/allegations levelled by the departmental authorities would bring it into conflict with the constitutional provisions and would render it unconstitutional and invalid. In our opinion, the High Court has taken a perfectly correct view and the provisions of Section 39(1)(d) cannot be used against exercise of the magisterial power to release the vehicle during pendency of the trial."

6. Further, the Hon'ble Apex Court in judgment reported in 2002 (10) SCC 283 in the case of Sunderbhai Ambalal Desai v. State of

Gujarat, has dealt with the mudammal and property, and specifically directed that the power under Section 451 of the Cr.P.C. should be exercised promptly by the concerned magistrate. The relevant portion of the said judgment is quoted hereinbelow:-

"5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property, such as:

(1) for the proper custody pending conclusion of the inquiry or trial;

(2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary;

(3) if the property is subject to speedy and natural decay, to dispose of the same.

7. In our view, the powers under Section 451 CrPC 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 the 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. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:

(1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.

13. For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition.

14. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the court may direct that such articles be handed back to the investigating officer for further investigation and identification. However, in no set of circumstances, the investigating officer should keep such articles in custody for a longer period for the purposes of investigation and identification. For currency notes, similar procedure can be followed.

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.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."

7. Thus, the mandate of the law is loud and clear that the concerned magistrate has to deal with the mudammal promptly so that no loss of national resources may occur, and the police station is not unnecessarily to be overcrowded by mudammal.

8. In view of above declaration of law, the impugned order dated 14.09.2017 is, hereby, quashed and the case is remitted back to the concerned court and the concerned court is mandated to pass an appropriate order under Section 451 of the Cr.P.C. within two weeks from the date of receipt/production of a copy of this order. Further, the concerned court should verify the necessary documents and shall also prepare panchnama etc. and shall take proper indemnity bond etc. also before releasing the vehicle.