Jharkhand High Court
Dharmender Ray vs The State Of Jharkhand on 12 May, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No.16 of 2022
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1.Dharmender Ray, aged about 25 years, son of Surendra Ray, resident of Ekavana,
Akauna, PO Ekavana, PS Barahara, District Bhojpur, Bihar (802311)
2.Herendra Yadav, aged about 35 years, son of Jagnarayan Yadav, resident of
Kuardah, PO Hardiya, PS Bihiya, District Bhojpur, Bihar (802152)
3.Ajay Kumar Singh, aged about 57 years, son of Shivnath Singh, resident of Sowan,
PO Sowan, PS Krishna Barnam, District Buxur, Bihar (802111)
4.Rama Shankar Yadav, aged about 60 years, son of Brahamdeo Yadav, resident of
Ekauna, PO Ekauna, PS Simariya, District Buxur, Bihar (302131)... petitioners
--Versus--
1.The State of Jharkhand
2.Kajal Kumar Dubey, s/o Dharmendra Kumar Dubey, presently working and posted as
SI Shyamsunderpur, Police Station R/o Bandanwar, PS Phathar Gawa, District Godda
... Opposite Parties
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner : Mr. Nilesh Kumar, Advocate
For the State : Mr. P.A.S. Pati, Advocate
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5/12.05.2022 Heard Mr. Nilesh Kumar, learned counsel for the petitioner and
Mr. P.A.S. Pati, learned counsel for the State.
This petition has been filed for direction upon the respondents to
release the vehicle of the petitioners bearing registration no.as PW-1 (WB 11D
2683), PW-2 (WB 11C 2430), PW-3 (WB 23B 7111) and PW -4 (WB 23B 6528)
which has been seized in connection with Syamsunderpur PS Case No.07/2021
(G.R.Case No.181/2021), pending in the court of learned SDJM, Ghatshila.
That the recourse of the law set on motion on the basis of self
statement of SI, Kajal Kumar Dubey that he got a secret information on
9.3.2021 at about 11 pm that animals are being illegally transported from
Bihar to Bengal. On the above information he with other police personnel
reached near the boundary of Shamsunderpur they blocked the road and
started checking at about 1 am. That it is alleged that several trucks, pickup
vans came there and on asking they found that animals were loaded and no
paper was produced by the drivers of few trucks and few was able to flee
away from the place of occurrence. Thereafter those trucks searched and
found several animals were tied with ropes and then all the trucks were seized
and present FIR has been lodged against the drivers and owner of the
respective trucks.
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. Pati, 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. Pati, 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. Pati, 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 petitioners bearing registration no.as PW-1 (WB 11D 2683), PW-2 (WB
11C 2430), PW-3 (WB 23B 7111) and PW -4 (WB 23B 6528) which has been
seized in connection with Syamsunderpur PS Case No.07/2021 (G.R.Case
No.181/2021), pending in the court of learned SDJM, Ghatshila by ordering it
to be released in favour of the petitioners on their giving an undertaking on
the following terms and conditions:-
(i) Petitioners shall furnish an indemnity bond of Rs. Three Lacs
Fifty Thousand (Rs. 3.5. Lacs), each, with two sureties.
(ii) One of the surety must be a resident and owner of a
commercial vehicle of District Singhbhum (East).
(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 16.12.2021
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.16 of 2022 is disposed of.
(Sanjay Kumar Dwivedi,J.)
SI,
