Md. Tamsir Khan vs The State Of Jharkhand
2022 Latest Caselaw 1939 Jhar

                                                 1



                         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                        Cr.M.P.No.2954 of 2021
                                                      ------

Md. Tamsir Khan, aged about 40 years, s/o Md. Kayum Khan, resident of Village Rahamatganj, PO and PS Bisanpur, District Dhanbad (Jharkhand)....Petitioner

--Versus--

The State of Jharkhand ... Opposite Party

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioner : Mr. Kripa Shankar Nanda, Advocate For the State : Mr. Prabir Kumar Chatterjee, Advocate

------

4/12.05.2022 Heard Mr. Kripa Shankar Nanda, learned counsel for the petitioner and Mr. Prabir Kumar Chatterjee, learned counsel for the State.

This petition has been filed for direction upon the respondents to release the commercial vehicles/Truck bearing Registration No.NL-01AD-0675, which was seized in connection with Sadar Police Station Case No.273 of 2019, pending in the court of learned Chief Judicial Magistrate, Chatra.

The prosecution case is based on the written application of Hawildar Ahmad Ali Khan, addressed to Officer in Charge Sadar Police Station, Chatra on 31.07.2019 alleging inter alia that on 31.07.2019 he was on patrolling duty along with other police officials at about 2:00 am in the night in the meantime a truck came which was instructed to stop due to the suspicion then the truck driver stopped the vehicle and fled away from the place of occurrence after parking the vehicle in the road side. The Truck being NO.BR-02GA-9393 was inspected in presence of the witnesses after giving the information to higher police officials and all together 27 bovine animals were recovered from the truck which was seized under a seizure list in presence of the police witnesses and then same was brought to the police station and the FIR was registered as the transportation of the bovine animal is an offence under the Act.

Mr. Kripa Shankar Nanda, 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. Prabir Kumar Chatterjee, 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 Singhwith 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 "

vehicle is found to have been used........" literally the use of word, 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."

So far the judgment relied by Mr. Chatterjee, 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. Chatterjee, 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- pliance of the commercial vehicle.

The Trial Court is directed to grant interim custody of Truck bearing Registration No.NL-01AD-0675 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- Chatra.

(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 09.03.2021 passed by learned Chief Judicial Magistrate, Chatra, passed in Misc.Criminal Application No.1236/2020 arising out of Sadar P.S.Case No.273/2019 and order dated 06.07.2021 passed in Criminal Revision No.19/2021 passed by Principal Sessions Judge, Chatra, pending in the court of learned Chief Judicial Magistrate, Chatra, are hereby, quashed.

Cr.M.P.No.2954 of 2021 is disposed of.

(Sanjay Kumar Dwivedi,J.) SI,