Jharkhand High Court

Md. Salauddin Khan vs The State Of Jharkhand on 29 June, 2022

                                                    1                 W.P. (Cr.) No. 160 of 2022


                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               W.P. (Cr.) No. 160 of 2022
                  Md. Salauddin Khan, aged about 35 years, S/o Jiyauddin Khan, R/o
                  Vill. Kalwan, P.O. & P.S. Amas, Dist. Gaya (Bihar)  ... Petitioner
                                           -Versus-
             1.   The State of Jharkhand
             2.   Superintendent of Police, Giridih
             3.   Officer in charge, Dhanwar P.S. having its office at Dhanwar, P.O. &
                  P.S. Dhanwar, District- Giridih                     ... Respondents
                                            -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----

             For the Petitioner      : Mr. Shailesh, Advocate
             For the State           : Mr. Ashwini Bhushan, AC to Sr. SC-III
                                            -----

05/29.06.2022. Heard Mr. Shailesh, learned counsel for the petitioner and Mr. Ashwini

Bhushan, learned counsel for the State.

2. This petition has been filed for quashing the order dated 21.02.2022

passed by the learned Principal Sessions Judge, Giridih in Cr. Rev.

No.164/2019 arising out of Dhanwar P.S. Case No.368/2018 corresponding

to G.R. No.2168/2018 whereby the learned Principal Sessions Judge, Giridih

has been pleased to dismiss the criminal revision filed by the petitioner and

the order dated 21.09.2019 passed by the learned Judicial Magistrate, 1 st

Class, Giridih has been affirmed.

3. The story of the prosecution is that an information provided by

the SDPO, Bagodar that he he intercepted 8 containers near Gandhi

Chowk, Dhanwar loaded with bovine animals to the tune of 267, from the

spot 8 persons were arrested disclosed their name and also disclosed

the name of other accused persons who were involved in the transportation

of bovine animals for the purpose of slaughter. It was further alleged

that the animals were cruelly stacked in the overcrowded containers and as

a result at the time of search and seizure 1 cow and 6 oxen were found to

be dead. Thus on such allegation Dhanwar P.S. Case No.368/2018 was

registered under Section 414/120B of the Indian Penal Code ad Section 11

of the Prevention of Animal Creulty Act as against 25 named accused

persons.

4. Mr. Shailesh, learned counsel for the petitioner submits that the

vehicle which has been seized by the police is HR-39-C-4379 and not HR-

39C-4380. He further submits that in the FIR, the vehicle number is

disclosed as HR-39C-4380. He also submits that the petitioner is the owner

of three trucks and the registration numbers of the trucks are HR-39C-4379,

HR-39C-4380 and HR-39C-4381. He further submits that the police has

also given report that the vehicle which has been seized is HR-39C-4380

and not HR-39C-4379, which is contained in Annexure-7 of the petition.

He further submits that the learned court has rejected the prayer for

released of the said truck only on the ground that the police has not seized

HR-39C-4379.

5. On perusal of the police report, contained in Annexure-7 of the

petition, it is crystal clear that the police has stated that the vehicle number

HR-39C-4380 has been seized and on physical verification of the vehicle and

documents, there are difference in engine number and chasis number. The

registration certificates of the said three trucks have been annexed at

Anneuxre-2 series of the petition, wherein vehicle number and chasis

number of the said trucks has also been mentioned. Learned counsel for the

State has also verified from Annexure-2 Series about the chasis and engine

number and submits that they are tallying. Moreover, the vehicle in question

is allowed to languish in the premise of Police Station, it will destroy.

6. Mr. Shailesh, learned counsel for the petitioner further 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.

7. Per contra, Mr. Ashwini Bhushan, learned counsel for the State

submits that the vehicle in question was seized. 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 Article 226 of the Constitution of India.

8. 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."

9. 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.

10. 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."

11. So far the judgment relied by the 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 the petition. That case is not helping

the petitioner. The judgment relied by the 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.

12. 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.

13. 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.

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

Registration No. HR-39C-4379 by ordering it to be released in favour of the

petitioner on his giving an undertaking on the following terms and

conditions:-

(i) The petitioner shall furnish an indemnity bond with two sureties of

the amount which has been disclosed in current insurance paper of

the vehicle.

(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.