Jharkhand High Court
Md. Jahid Qureshi @ Md. Zahid ... vs The State Of Jharkhand on 30 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 956 of 2018
Md. Jahid Qureshi @ Md. Zahid Auraishi @ Bablu Quraishi, aged
about 35 years, son of Md. Abbas Qureshi @ Abbash Qureshi, resident
of Bazarkar, P.O.- & P.S.-Barachatti, District-Gaya, 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. Lalan Kumar Singh, Advocate
For the State : Mr. Santosh Kumar Shukla, A.P.P.
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09/ 30.09.2021 Heard Mr. Lalan Kumar Singh, learned counsel appearing
for the petitioner and Mr. Santosh Kumar Shukla, learned A.P.P for the
State.
2. This petition 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.
3. This criminal miscellaneous petition has been filed for
quashing of the order dated 28.07.2017 passed by the learned Sessions
Judge, Hazaribag, in Cr. Rev. No. 83 of 2017 and also the order dated
29.6.2017 passed by the learned Judicial Magistrate, 1st Class, Hazaribag,
in Barhi P.S. Case No. 314 of 2016 and also for an appropriate order for
release of the vehicle, i.e. Tata-407, Pick-Up Van having registration No.
BR-02-AA-0866 in favour of the petitioner.
4. The prosecution case as alleged in the FIR is that on ASI of
Barhi P.S. namely Sanjay Kumar, on night patrolling duty got a tip off at
about 2.30 A.M. on 21.11.2016 to the effect that one Tata 407 vehicle
bearing registration No. BR-02-AA-0866 loaded with beef coming from
Chauparan side was heading towards Kolkata. On receipt of such
information, the informant stationed himself with a police party on G.T.
Road, keeping a vigilant eye on the vehicles coming from Chauparan
side. At about 3.00 A.M. a Tata 407 was sighted coming from Chauparan
side. It was intercepted by the police party. The driver and khalasi of the
said vehicle tried to flee away but they were nabbed. On interrogation,
the arrested driver and khalasi disclosed their names and addresses. On
the vehicle being checked, about one and half tones of beef were
recovered. On demand the arrested persons did not produce any
document in respect of the meat found loaded on the vehicle.
It is said that the vehicle loaded with raw-meat was seized in
presence of two witnesses who were none but members of the
police Patrolling party. It is in this back drop that the instant case
has been registered against the vehicle owner (the petitioner herein)
and others for the offence under Section 429 of the Indian Penal
Code and Sections 6, 7, 12(1) and 12(3) of the Jharkhand Bovine
Animals (Prohibition of Slaughter) Act, 2005.
5. Mr. Lalan Kumar Singh, 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.
6. Per contra, Santosh Kumar Shukla, learned A.P.P. appearing
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 2015 decided on 22.01.2016 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. 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."
10. So far the judgment relied by Mr. Santosh Kumar Shukla,
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. Santosh Kumar Shukla, 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.
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. BR-02-AA-0866 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 Hazaribag.
(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.
14. The Trial Court is at liberty to impose any other terms and
conditions which the trial Court deems fit and proper.
15. With the aforesaid direction, the impugned order dated
28.07.2017 passed by the learned Sessions Judge, Hazaribag, in Cr. Rev.
No. 83 of 2017 and also the order dated 29.6.2017 passed by the learned
Judicial Magistrate, 1st Class, Hazaribag, in Barhi P.S. Case No. 314 of
2016, are hereby, quashed.
16. With the aforesaid observations and directions, this criminal
miscellaneous petition stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
