Md. Mahtab Alam Khan Son Of Sachu ... vs The State Of Jharkhand
2021 Latest Caselaw 2073 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(Cr.) No.219 of 2019
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Md. Mahtab Alam Khan son of Sachu Khan, aged about 27 years, resident of Village Badiya Barachatti, P.O. & P.S. Barachatti, District Gaya (Bihar) .... .... .... Petitioner Versus

1. The State of Jharkhand

2. Officer-in-Charge of Jasidih Police Station, P.O., P.S. Jasidih & District Deoghar (Jharkhand) .... .... .... Opposite Parties

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioner : Mr. Mahesh Tewari, Advocate For the State : Mr. Manoj Kumar, G.A. III

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09/28.06.2021 Heard Mr. Mahesh Tewari, learned counsel for the petitioner and Mr. Manoj Kumar, learned counsel for the State.

This writ petition (criminal) has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

This writ petition (criminal) has been filed for direction upon the respondents to release the commercial vehicles (containers) bearing Registration No.NL01AA4354, Chassis No.MB1CTCHDIHPDY5418, Engine No.HDPZ116424 and Registration No.NL01AA4356, Chassis No.MB1CTCHDOHPDY5409 and Engine No.HDPZ116397.

The case was lodged pursuant to F.I.R. wherein on 07.03.2018 at about 22 hours, the informant got secret information that animals are being taken towards Bihar via Deoghar to Bengal for the purpose of slaughtering. The informant gave information about this to superior officer and thereafter, informant along with A.S.I. and others with arm proceeded to Andheri Gadar Police Picket and with the help of police personnel of the Andheri Gadar Picket, they started checking the vehicles and at about 2.30 a.m. of intervening night 07.08.2018 three containers along with one Scorpio were seen to them coming towards Chaka. Seeing police party, the aforesaid Scorpio bearing registration no. BR 02-4894 was suddenly fleeing away towards Chakai after backing the same, then the informant attempt to caught said Scorpio but the Scorpio was succeeded to fleeing away and thereafter three containers bearing registration no.NL01AA-43456, NL01AA- 4354 and HR38Q3705 came there and in these containers animals were

found and no documents were produced and subsequently F.I.R. and seizure list was prepared and the vehicles in question were seized.

Mr. Mahesh Tewari, Learned counsel appearing for the petitioner submits that there is no provision of confiscation under Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005. He submits that only provision is under Section 12(3) of the Act whereby it transpires that the vehicle in question can be forfeited to State Government. He submits that in view of Section 12(3) that will happen after once the trial comes to the conclusion of conviction of charged accused. He further submits that vehicles in questions are commercial and if it will be allowed to languish in the premise of Police Station, it will destroy. In terms of Section 451 of Cr.P.C. also, the case of the petitioner is fortified. To buttress his argument, he relied the case of Mirza Dildar Beg & Others reported in 2014 SCC OnLine Jhar 55. He further relied the case of Md. Reyazuddin Versus The State of Jharkhand reported in 2014 SCC OnLine Jhar 985. He further relied on Cr. Rev. No.1407 of 2016 in the case of Raju Prasad Keshri Versus The State of Jharkhand.

Per contra, Mr. Manoj Kumar, learned counsel for the State submits that the vehicles in question were seized under Sections 4(A) and 4(B) and Sections 12(i) and 12(ii) of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005. He submits that the case of the petitioner is fit to be rejected in view of the order passed by this Court in Cr.M.P. No.2503 of 2013 decided on 22.01.2018 in the case of Nawab Sher Khan Versus State of Jharkhand. He further submits that the Hon'ble Supreme Court has held in the case of State of Madhya Pradesh Versus Uday Singh with analogous cases reported in (2020) 12 SCC 733 that High Court could not have directed the release of such property in exercise of power under Section 482 of Cr.P.C.

On perusal of provision of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005, it is apparent that there is no provision of confiscation of vehicle or goods as provided under some Acts i.e. Essential Commodities Act and Forest Act. The aforesaid Acts prescribe forfeiture of vehicle particularly under Section 12(3) of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005 which reads as under:-

"Whenever a vehicle is found to have been used in transportation of Cattle or Beef contravening any provision of this Act the Vehicle shall be forfeited to the State Government."

On plain reading of the provision it is clear that the words used

"Whenever a vehicle is found to have been used........" literally the use of word, found in the section connotes that a finding has to be arrived at that the vehicle was used in transportation of cattle or beef in contravention of the provision of the Act. Such finding can only be arrived only after the evidence is brought on record during an enquiry or trial meaning thereby that the charges/allegations have to be proved that the vehicle was used in contravention of the provision of the Act whereafter the vehicle shall be forfeited to the State Government. It is not disputed that in the instant case no proceeding has been initiated for forfeiture neither does the Act provide for initiation of confiscation proceeding and the vehicle is lying at the police station without any use in an uncared manner.

On plain reading of the above provision, it is crystal clear from (Whenever a vehicle is found to have been used........") and it further says that the vehicle should be forfeited to the State Government. Meaning thereby, once the trial is concluded and the conviction is held by the Trial Court then only the forfeiture of vehicle will come into effect. The vehicle in question is commercial as indicated and this aspect of the matter has been decided by the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai Versus State of Gujarat reported in (2002) 10 SCC 283. Para 5 and 17 of the 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 said or otherwise disposed of, after recording such (3) If the property is subject to speedy and natural decay, the dispose of the same.

"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."

In view of the settled law the detention of the vehicle is of no use as it will not only lead to damage and loss of utility of the vehicle but will also cause a loss of revenue to the Government due to non-pliance of the commercial vehicle.

In the surrounding facts and circumstances the trial Court is directed to grant interim custody of the pick-up van bearing Registration No. BR. 01 GC-4103 by ordering it to be released in favour of the petitioner on his giving an undertaking on the following terms and conditions:-

(i) Petitioner Md. Reyazuddin shall furnish an indemnity bond of Rs. Three Lacs Fifty Thousand (Rs. 3.5. Lacs) with two sureties.

(ii) One of the surety must be a resident and owner of a commercial vehicle of District Gumla.

(iii) that the petitioner shall not sale, mortgage or transfer the ownership of the vehicle on hire purchase agreement or mortgage or in any manner.

(iv) He shall not change or tamper with the identification of the vehicle in any manner.

(v) He shall produce the vehicle as and when directed by the Trial Court.

The Trial Court is at liberty to impose any other terms and conditions which the trial Court deems fit and proper.

With the said direction the impugned order dated 16.01.2014, passed by learned Judicial Magistrate, 1st Class, Gumla in Raidih P.S. Case No. 67 of 2013, corresponding to G.R. No. 1021 of 2013, is, hereby, set aside. Let a copy of this order be also sent to the Superintendent of Police of Gumla who shall verify the provision of Section 11(1)(v) of Animal Cruelty Act and direct the concerned Investigating Officer to bring on record the said provision in the Court below. In the result the application hereby allowed.

So far the judgment relied by Mr. Manoj Kumar, learned counsel for the State in the case of State of Madhya Pradesh Versus Uday Singh (supra) is concerned, in that case Hon'ble Supreme Court was considering the Forest Act wherein confiscation provision is there and that is why Hon'ble Supreme Court held that High Court should not interfere under Section 482 Cr.P.C. That case is not helping the petitioner. Judgment relied by Mr. Manoj Kumar, learned counsel for the State in the case of Nawab Sher Khan Versus State of Jharkhand (supra) passed by this Court is also distinguishable in the facts and circumstances of the present case. In that case this Court has come to conclusion that once the proceeding started under Sections 4(A) and 4(B) of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005, it will be deemed that confiscation has been started.

On perusal of Sections 4(A) and 4(B) of Jharkhand Bovine Animal Prohibition of Slaughtering Act, 2005, it transpires that there is no provision of confiscation in that Sections. This Section speaks Restriction on report and Permit for report. Thus, that judgment is distinguishable in the facts and circumstances of the case.

In view of the above facts and the settled law, the detention of vehicle is of no use as it will not only lead to damage and loss of utility of the vehicle but will also cause a loss of revenue to the Government due to non-pilance of the commercial vehicle.

The Trial Court is directed to grant interim custody of vehicles bearing Registration Nos.NL01AA4354 and NL01AA4356 by ordering it to be released in favour of the petitioner on his giving an undertaking on the following terms and conditions:-

(i) Petitioner shall furnish an indemnity bond of Rs. Three Lacs Fifty Thousand (Rs. 3.5. Lacs) with two sureties.

(ii) One of the surety must be a resident and owner of a commercial vehicle of District Deoghar.

(iii) that the petitioner shall not sale, mortgage or transfer the ownership of the vehicle on hire purchase agreement or mortgage or in any manner.

(iv) He shall not change or tamper with the identification of the vehicle in any manner.

(v) He shall produce the vehicle as and when directed by the Trial Court.

The Trial Court is at liberty to impose any other terms and conditions which the trial Court deems fit and proper.

With the aforesaid direction, the impugned order dated 08.02.2019 passed by Chief Judicial Magistrate, Deoghar and order dated 07.05.2019 passed in Criminal Revision No.74 of 2019 by Additional Sessions Judge-II, Deoghar, are hereby, quashed.

This writ petition (criminal) is disposed of.

(Sanjay Kumar Dwivedi, J.)

Anit