Madhya Pradesh High Court
Chetak Logistic Ltd. vs The State Of Madhya Pradesh on 9 January, 2023
Author: Rajendra Kumar Verma
Bench: Rajendra Kumar Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 9 th OF JANUARY, 2023
CRIMINAL REVISION No. 2405 of 2022
BETWEEN:-
CHETAK LOGISTIC LTD. THROUGH POWER OF
ATTORNY HOLDER SALEEM KHAN S/O SHRI KAREEM
KHAN AGED 55 YEARS OCCU. PVT. WORK PLOT NO. 8,
SECTOR NO. 6, MAIN MATHURA ROAD FARIDABAD
(HARYANA) R/O BAIRASIYIA ROAD, VISHWAKARMA
NAGAR BHOPAL, DISTRICT BHOPAL (M.P.) (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI WAKEEL KHAN - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
KOTWALI SEONI DISTRICT SEONI M.P. (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI TIKARAM KURMI - PANEL LAWYER)
T h is revision coming on for order this day, t h e cou rt passed the
following:
ORDER
Petitioner has filed this criminal revision under Section 397/401 of Cr.P.C. being aggrieved by the order dated 10.03.2022 passed by CJM Seoni, District Seoni, whereby court has rejected the application for supurdnama filed by him.
2. Brief facts of the case are that the Police Station Kotwali District Seoni has registered crime No. 178/2022 for the offence Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM 2 punishable under Sections 4, 6, 9 of MP Govansh Vadh Pratishedh Adhiniyam, 2004 & 4, 6, 6(A), 6(B)(1) of M.P. Krashak Pashu Parirakshan Adhiniyam, 1959 & 11(d) Prev. of Cruelty to Animals Act, 1960 & 34(2) M.P. Excise Act, 1915 & 66/192 M.V.Act, 1988 in which the vehicle of the petitioner bearing registration HR38U-7856 has been seized alleging indulgence of it in illegal transportation of cow progenies.
3. After seizure of vehicle, petitioner has filed an application under Section 457 of the Code of Criminal Procedure for interim custody of vehicle. CJM by impugned order dated 10.03.2022 dismissed the application. 4
4. Petitioner has challenged the impugned order on ground that he has filed documents of ownership of seized vehicle and no other person has claimed vehicle, therefore, as per settled law, vehicle ought to have released on supurdginama. Learned trial Court has committed an error of law in rejecting the application for release of vehicle on superdginama. In view of order passed by Apex Court reported in AIR 2003 SC 638- Sunderbhai Ambalal Desai Vs. State of Gujarat and in case of Madhukar Rao S/o Malik Rao Vs. State of MP. and others reported in 2000(1) MPLJ 289.
5. Learned Panel Lawyer for the State opposed the petition for release of vehicle on supurdginama. It is submitted by him that a well reasoned order has been passed by the CJM Seoni, therefore, he could not derive any benefit of releasing vehicle on supurdginama. There are chances that vehicle may be used again in crime. In view of same, prayer is made Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM 3 for dismissal of petition.
6. Heard learned counsel for the parties.
7. Relevant provisions of law for adjudicating the petition is quoted below:
Sections 4, 5, 6, 6A, 11, 11A of Gow Vansh Pratishedh Adhiniyam & Rules 5 and 6 of M.P. Govansh Vadh Pratishedh Rules, 2012 are as under:-
4.Prohibition of slaughter of cow progeny.
No person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter of any cow progeny by any means.
5. Prohibition on possession and transport of beef.
No. person shall have in his possession or shall transport beef of any cow progeny slaughtered in contravention of the provisions of this Act.
6. Prohibition on transport of cow for progeny slaughter.
No person including transporter shall transport or offer for transport or cause to be transported any cow progeny himself or by his agent, servant or by any other person acting in his behalf within the State or outside the State for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be so slaughtered.
Prohibition of export of cow progeny and grant of permit.
6A. (1) No person including transporter shall export or cause to be exported any cow progeny himself or by his agent, servant or by any other person acting in his behalf from any place of the State to any place out side the State without permit as provided in sub-section(2).
(2)The Competent Authority may grant a permit within seven days on presenting application in this behalf, in such manner as may be prescribed for export of cow progeny from Madhya Pradesh for agricultural of dairy farming purposes or for participation in a cattle fair and like purposes except for the purpose of slaughter.
Signature Not Verified(3) Any person seeking permit under sub-section (2) aggrieved by an Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM 4 order of the Competent Authority may make an application within thirty days from the date of receipt of the order to the Divisional Commissioner, and the Divisional Commissioner may upon such application call for the examine the record of the case for the purpose of satisfying himself as to the correctness, legality or propriety of any order and may pass such order as it may deem just and proper and the order passed by the Divisional Commissioner shall be final and shall not be called in question in any civil court.
11. Power of entry, inspection, search and seizure.
(1) For the purpose of enforcing the provisions of this Act, the Competent Authority of any person authorized by the Competent Authority in writing in this behalf shall have power to enter and inspect any premises within the local limits of his jurisdiction, where he has reason to believe that an offence under this Act has been, is being or is likely to be committed and shall take necessary action.
(2) Every person in occupation of any such premises as is specified in sub-section (1) shall allow the Competent Authority or any person authorized by the Competent Authority in writing, such access to the premises as he may require for the aforesaid purpose,and shall answer any question put to him by the Competent Authority or the person authorized, as the case may be, to the best of his knowledge and belief.
(3) Any police officer not below the rank of Head constable or any person authorized in this behalf by Competent Authority may, with a view to securing compliance of the provisions of Section 4, 5,6 A, and 6B or for satisfying himself that the provisions of the said sections have been complied with:
(a) stop, enter and search any vehicle used or intended to be used for the export of cow progeny or beef,
(b)seize or authorize the seizure of cow Progeny, in respect of which he suspects that any provision of Section 4,5,6, 6A and 6B has been, is being or is about to be contravened, along with the vehicle in which such cow progeny or beef are found and thereafter take or authorize the taking of all measures necessary for securing the production of the cow progeny and vehicle so seized, in a court and for their safe custody pending the trial.
(4) The provision of Section 100 of the Code of Criminal Procedure, Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM 5 1973 (No. 2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures under this Section.
(5) In case of any violation of Section 4, 5, 6, 6A and 6B, the police shall be empowered to seize the vehicle, cow progeny and beef, and the District Magistrate shall confiscate such vehicles, cow progeny and beef in such manner as may be prescribed.
11A. Appeal against of order confiscation.
11A.(1) Any person aggrieved by an order of confiscation under sub- section (5) of Section11 may, within thirty days of the order, or if fact of such order has not been communicated to him, within thirty days of date of knowledge of such order, prefer an appeal in writing with certified copy of order of confiscation, accompanied by such fee and payable in such manner as may be prescribed, to the Divisional Commissioner (hereinafter referred to as the Appellate Authority).
Rules 5 and 6 of M.P. Govansh Vadh Pratishedh Rules, 2012.
5. Confiscation by District Magistrate:-
In case of any violation of section 4, 6, 6A, and 6B, the police shall be empowered to seize the vehicle, COW progeny and beef, and the District Magistrate shall confiscate such vehicles, cow progeny and beef as per the provisions of section 100 of criminal procedure code, 1973 (No.2 of 1974) in following manner:-
(i) He shall take possession of the vehicle;
(ii) He shall intimate the Veterinary Department to cowprogeny and beef.
(iii) The beef of cow-progeny shall be disposed of by the department by such procedure as he deems fit.
6. Manner of Appeal.-
Any person aggrieved by an order of confiscation under sub section (5) of section 11 of the Act, may prefer an appeal in writing to the Divisional Commissioner within thirty days of the date of knowledge of such order. Every appeal shall be made under sub-section (1) of Section 11-A of the Act.
Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM 6Section 47-D of M.P. Excise Act reads as under:-
[47-D. Bar of jurisdiction of the Court under certain circumstances. - Notwithstanding anything to the contrary contained in the Act, or any other law for the time being in force, the Court having jurisdiction to try offences covered by clause (a) or (b) of Sub- Section (1) of Section 34 o n account of which disposal, custody etc. of the intoxicants, articles implements, utensils, materials, conveyance etc. seized after it has received from the Collector an intimated under Clause (a) of sub-Section (3) of Section 47-A about the initiation of the proceedings for confiscation of seized property.
Sections 452, 457 of the Code of Criminal Procedure are as under:-
Section 452: Order for disposal of property at conclusion of trial.
(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under subsection (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is subject tospeedy and natural decay, or where a bond has been executed in pursuance of Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM 7 subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.
(5)In this section, the term" property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have beenconverted or exchanged, and anything acquired by suchconversion or exchange, whether immediately or otherwise.
457. Procedure by police upon seizure of property.
(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
8. Criminal Courts have power to order for custody and disposal of property pending trial when property is produced before the Criminal Court during enquiry or trial under Section 451 of the Cr.P.C. Under the said section, when property is produced before Criminal Court then interim custody is granted. Criminal Court at conclusion of trial under Section 452 of the Cr.P.C. has power to pass order for final disposal of property. Final disposal of property includes destruction of property, confiscation of property or delivery Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM 8 of property to any person entitled possession thereof. Magistrate has power to grant interim custody of property under Section 457 of the Cr.P.C. when property is not produced before Criminal Court during enquiry or trial and Magistrate can pass order for delivery of such property to person entitled to be in possession thereof. Power of Magistrate for granting custody of property under Sections 452 and 451 of the Cr.P.C touches upon the right of person to have possession of the property. However, order of interim custody of property under Section 451 does not touches upon the right of person to be in possession of property. However, Magistrate passes an order of interim custody of vehicle during trial then he has to pass final order for disposal of property at the time of conclusion of trial. Criminal Courts, which do not have power to pass order for final disposal of property and also cannot have power to pass order for interim custody of property. Under Gow Vansh Pratishedh Adhiniyam and Rules power to pass order for confiscation of property is vested with District Magistrate. Since power to pass order regarding confiscation of property is with District Magistrate, therefore, Magistrate cannot have power to release vehicle on interim custody as he will have no power for final disposal of that property at the conclusion of trial. In Gow Vansh Pratishedh Adhiniyam, aggrieved party can file objection before District Magistrate at the time of confiscation of property and he shall be given right of hearing if order of confiscation is passed. Section 11-A gives statutory right of appeal to aggrieved person against order of confiscation. Further Section 11-A sub section 4 gives power to appellate authority to pass order for interim custody or disposal of property under confiscation. Legislature has intentionally not given any right to District Magistrate for passing an order of interim custody of vehicle and said right has been given to appellate authority after final order of Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM 9 confiscation has been passed.
9. It is pertinent to note that when the confiscation proceeding has been started by the Collector and information has been received by the Court, then there is bar under Section 47-D of M.P. Excise Act to make any order about disposal, custody etc. of the intoxicants, articles implements, utensils, materials, conveyance etc. As per impugned order, the Collector has informed the concerned court on 04.03.2022 regarding confiscation proceedings.
10. In view of same, Magistrate do not have any power under Sections 451, 452 and 457 of Cr. P. C. to order interim custody or final disposal of property in question. Reliance cannot be placed on order passed by the Apex Court in case of Madhukar Rao Vs. State of M.P. and others (supra) as said order is in respect of forest offences.
11. In view of the aforesaid, MCr.C. filed by the petitioner is dismissed.
12. Registry is directed that record of the Court below be sent back immediately.
(RAJENDRA KUMAR (VERMA)) JUDGE MISHRA Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 1/12/2023 11:58:08 AM