Jharkhand High Court
Nabi Sarwar vs The State Of Jharkhand on 12 May, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No.71 of 2022
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Nabi Sarwar, aged about 37 years, son of Md. Osman, resident of N 179/C, Mudaini,
First Lane, Gardenreach, Kolkata, PO and PS Gardenreach, District Kolkata 700024
(West Benghal) ... petitioner
--Versus--
1.The State of Jharkhand
2.Kajal Kumar Dubey, s/o Dhirendra Kumar Dubey, presently working and posted as
SI, Shyamsunderpur Police Station R/o Bandanwar, PS Phathargawa, District Godda
... Opposite Parties
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner : Mr. Nilesh Kumar, Advocate
For the State : Mr. Devesh Krishna, Advocate
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3/12.05.2022 Heard Mr. Nilesh Kumar, learned counsel for the petitioner and
Mr. Devesh Krishna, learned counsel for the State.
This petition has been filed for direction upon the respondents to
release the vehicle of the petitioner bearing registration no.WB 09 1482 which
has been seized in connection with Syamsunderpur P.S. Case No.07 of 2021
lodged for commission of alleged offence under section 428, 429, 34 of the
IPC and Section 11 of Prevention of Cruelty to Animals Act, 1960 and section
12(1)(2)(3) of the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005
whereby and the application for release in connection with G.R.Case
No.181/2021 has been rejected vide order dated 7.2.2022 by SDJM, Ghatshila,
pending in the court of SDJM, Ghatshila.
That the present case was lodged on the basis of self statement of
Kajal Kumar Dubey, Incharge Shyamsundarpur Police Station (Respondent
no.2 herein) in which he has alleged that on 9.3.21 at about 11 Pm he got
secret information that through Tata Ghatshila Road, 5/6 trucks loaded with
illegal animals (Bovine) are moving towards Bengal. As such a team was
prepared after information to the competent authority and raid was
conducted. Six vehicles bearing registration No.WB-09-1482, WB 11D 2683,
WB 23B 7111, WB 23B 6528, WB 23 C 1836 and WB 11C 2430 stopped and
after search it has been found that the same were loaded with bovine animals.
One Rashid Alam and Jitendra Yadav were apprehended, rest fled away from
the place of occurrence. They confessed before the authority that they are
moving from Bihar to Bengal with the animals. It has been confessed by the
apprehended accused persons that they were moving with the animals and no
satisfactory documents were given. Accordingly animals were seized and the
case has been instituted.
Mr. Nilesh Kumar, 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. Krishna, 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. Krishna, 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 vehicle of
the petitioner bearing registration no.WB 09 1482 which has been seized in
connection with Syamsunderpur P.S. Case No.07 of 2021 (G.R.Case
No.181/2021), pending in the court of SDJM, Ghatshila 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 East Singhbhum.
(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 07.02.2022
passed by learned S.D.J.M., Ghatshila, in connection with Syamsunderpur PS
Case No.07/2021 (G.R.Case No.181/2021), pending in the court of learned
SDJM, Ghatshila, is hereby, quashed.
W.P.(Cr.) No.71 of 2022 is disposed of.
(Sanjay Kumar Dwivedi,J.)
SI,
