Jharkhand High Court

Raj Kumar Yadav vs The State Of Jharkhand on 27 September, 2021

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                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr.M.P. No. 570 of 2021
             Raj Kumar Yadav, aged about 51 years, S/o Late Dashrath Yadav, resident
             of 97, G.C. Road, Titagarh, P.O. Titagarh, P.S. Titagarh, Distt. North 24
             Parganas (West Bengal), A/P Resident of Village Suhiyari, P.O. Suhiyari, P.S.
             Bhojpur, Distt. Bhojpur (Bihar)                        ... Petitioner
                                          -Versus-
             The State of Jharkhand                                ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Prabhat Kumar Sinha, Advocate For the Opposite Party-State : Mr. Prabir Kumar Chatterjee, Spl.P.P.

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07/27.09.2021. Heard Mr. Prabhat Kumar Sinha, learned counsel for the petitioner

and Mr. Prabir Kumar Chatterjee, learned Spl. P.P. for the opposite party-

State.

2. This criminal miscellaneous petition has been taken 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 on merit.

3. The petitioner has filed this petition for quashing the order dated

18.01.2021 in Criminal Revision No.57 of 2020 passed by the learned

Principal Sessions Judge, Giridih in connection with Dumri P.S. Case No.120

of 2019, whereby, the prayer for release of vehicle has been rejected by the

revisional court and the order of the trial court has been affirmed.

4. The story of the prosecution is that the informant namely Ashok

Prasad O/C Dumri Police Station has narrated in his written complaint that

on 28.09.2019 at around 12:15 a.m. superior police officers got secret

information that Truck No. WB-23C-8093 loaded with cattle is coming from

Bagodar side. The patrolling party of Dumri P.S. was ordered to come back

to the police station at once. Further the information was entered into

Station Diary Entry (S.D.E.) and then along with Gasti parties proceeded for

verification of the information and after reaching village Kulgo, waited for

the said vehicle. Further at around 03:05 a.m., the aforesaid vehicle was

coming, which was stopped by the patrolling party but the driver fled away

towards hilly area after seeing the police. Since it was night hence no

independent persons were found therefore in presence of the raiding party,

the vehicle was searched in which 16 cows and 4 calf were loaded and

accordingly seized and seizure list was prepared.

5. Mr. Prabhat Kumar Sinha, learned counsel appearing for the petitioner

submits that there is no provision of confiscation under Jharkhand

Bovine Animal Prohibition of Slaughtering Act, 2005. He further 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

also 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 vehicle in question is 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 upon the case of Mirza Dildar Beg &

Others reported in 2014 SCC OnLine Jhar 55. He further relied upon the

case of Md. Reyazuddin Versus The State of Jharkhand reported in

2014 SCC OnLine Jhar 985. He further relied upon Cr. Rev. No.1407 of

2016 in the case of Raju Prasad Keshri Versus The State of

Jharkhand.

6. Per contra, Mr. Prabir Kumar Chatterjee, learned Spl.P.P. for the State

submits that the vehicle in question was 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 further 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.

7. 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."

8. 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.

9. 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. Paragraphs 5 and 17 of the judgment are quoted herein below:-

"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."

10. So far the judgment relied by Mr. Prabir Kumar Chatterjee, learned

Spl.P.P. 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. The judgment

relied by Mr. Prabir Kumar Chatterjee, learned Spl.P.P. 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.

11. 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.

12. 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.

13. The Trial Court is directed to grant interim custody of vehicle bearing

Registration No. WB-23C-8093 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 Giridih.

(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.