Gauhati High Court
Md. Miraz Ali vs The State Of Assam on 21 August, 2017
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Crl. Revn. Pet. No. 288 of 2013
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
21.08.2017
Heard Mr. S.M Abdullah P, learned counsel for the petitioner and Mr. Hrishikesh Sharma, learned Additional Public Prosecutor for the State, sole opposite party This revision petition is against the Order dated 21.06.2013 passed by learned Sub-Divisional Judicial Magistrate, Kaliabor in connection with BR/14/offense/2013/258-59 under Section 51 of the Wildlife Protection Act, 1972, whereby learned Magistrate rejected the custody (zimma) of the vehicle involved in the case to the petitioner.
The brief facts of the case is that the Forest Range Officer of Burhapahar, Wildlife Forest Range, Ghorakati on 30.05.2013 lodged an FIR before the learned Sub-Divisional Judicial Magistrate, Kaliabor alleging that a group of 7 (seven) persons (including the petitioner) were carrying an elephant on a Truck without any valid documents and that those seven persons were apprehended and that both the vehicle and the elephant were seized. Accordingly, those seven persons apprehended by the forest department were arrested on 30.05.2013 and produced before the SDJM, Kaliabor. Later in Bail Application No. 1381/2013, considering the fact that the elephant seized is likely to be domesticate elephant, this Court by order dated 05.06.2013 released all those arrested persons, including the petitioner on bail in said case No. BR/14/offense/2013/258-59.
It is stated by the petitioner that he is the owner of the mini-truck bearing registration No. NL-01-A-5132 that was seized in connection with the case No. BR/14/offense/2013/258-59 on 30.05.2013 and he stated that it is the only source of his livelihood, which was taken on rent by one of the accused person wherein the elephant was carried on the date of the incident, which was also seized by the forest officials.
Crl. Revn. Ptn. No. 288 of 2013 Page 1 of 4It is stated by the petitioner that after his release on bail in said case No. BR/14/offense/2013/258-59 on 05.06.2013, he applied for custody (zimma) of the said vehicle and all the relevant documents of his said vehicle seized by the Forest Department. However, considering the police report that the seized vehicle is wanted for further investigation, the learned Sub-Divisional Judicial Magistrate, Kaliabor by order dated 21.06.2013 passed in said case No. BR/14/offense/2013/ 258-59 rejected the said application of the petitioner for custody of his mini truck bearing registration No. NL-01-A-5132.
With regard to articles seized and kept in police custody during investigation and trial of a case, the Hon'ble Apex Court have laid down the procedure for custody and disposal of valuable articles and has laid down that -
(i) owner of the article does not suffer because of its remaining unused or by its misappropriation;
(ii) Court or the Police would not be required to keep the article in safe custody;
(iii) if the proper report before handing over possession of article is prepared that can be used in evidence instead of its production before the Court during the trial and if necessary, evidence could also be recorded describing the nature of the property in detail; and
(iv) this jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further charge of tampering the articles.
Regarding custody of any seized vehicle during pendency of the trial, the Hon'ble Supreme Court have observed that it is of no use to keep such seized vehicles at the police station for a long period and it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond or guarantee as well as security for return of the said vehicle at any point of time.
It also submitted by the learned counsel for the petitioner that from the date of seizing of his said vehicle bearing registration No. NL-01-A-5132, the same has been kept in the custody of the forest department only that too in an open premise, keeping the same in such a condition that the said vehicle is getting Crl. Revn. Ptn. No. 288 of 2013 Page 2 of 4 damaged due to vagaries of nature and if the same is not given to the petitioner, who is the owner of the same, he will suffer immense loss and injury as the said vehicle (mini-truck) is the only source of his income.
It is settled that power is vested upon the Magistrate during pendency of a trial to grant interim custody of seized goods, vehicles etc., on an application which applies to all cases of seizure of property by any police/seizing officer and when such seizure is reported to a Magistrate, but not produce before him (the Magistrate) the provisions of the Code of Criminal Procedure, 1973 provides the procedure to be followed by the Magistrate for disposal of such seized articles/ property. Though such power of the Magistrate for disposal of seized material is discretionary, but at the same time, the Magistrate has to exercise the said discretion in a judicial manner, without any arbitrariness or prejudicing the interest of the rightful claimant.
In the present case, the vehicle seized by the Forest Officer involved in the said case No. BR/14/offense/2013/258-59 has not been produced before the Magistrate or the Court. As such, this Court is of the opinion that the custody of the vehicle bearing registration No. NL-01-A-5132 shall be given by the Sub-Divisional Judicial Magistrate, Kaliabor on the proper application of the petitioner and on finding that the petitioner is the owner of the said application and on condition of furnishing him of bank guarantee from any nationalized bank to the like amount of the valuation of the said vehicle and to produce the same before the Court as and when required during the pendency of the case and during trial and that the petitioner shall not sell the vehicle or transfer or alienated in any form to any other person without prior order of the Court.
For the reasons above, the order dated 21.06.2013 passed by learned Sub- Divisional Judicial Magistrate, Kaliabor in case No. BR/14/offense/2013/258-59 rejecting the custody of the vehicle bearing registration No. NL-01-A-5132 is hereby set aside and quashed.
Now the concerned Magistrate shall dispose of the application for custody of the vehicle bearing registration No. NL-01-A-5132 in accordance with law and as per the observation made herein above.
Crl. Revn. Ptn. No. 288 of 2013 Page 3 of 4Accordingly, this petition stands allowed.
Registry shall return the LCR to the Court of learned Sub-Divisional Judicial Magistrate, Kaliabor, District-Nagaon along with a copy of this order.
JUDGE Pb/-
Crl. Revn. Ptn. No. 288 of 2013 Page 4 of 4