Allowed

Shyam Kumar Sahu v. State of Chhattisgarh

Chhattisgarh HC24 Sept 2024CRMP/2006/2024

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 CrPC, holding that the District Magistrate lacks power to confiscate a vehicle during trial pending. The court permitted interim custody of the seized vehicle as the six-month bar had lapsed and guilt was unproven, directing submission of security.

What did the court decide?

Petition allowed; order of trial and revisional courts set aside; seized vehicle released on interim custody subject to security of Rs. 7,00,000 and conditions.

Shyam Kumar Sahu Vs State of Chhattisgarh — Service and Employment | Chhattisgarh HC (2024)

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2024:CGHC:37954

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 2006 of 2024

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1 - Shyam Kumar Sahu S/o Arjun Sahu Aged About 32 Years R/o Village Bengchi, Police Station Baramkela, District- Raigarh, Chhattisgarh

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... applicant

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versus

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1 - State Of Chhattisgarh Through S.H.O. Sarangarh, District : Sarangarh-Bilaigarh, Chhattisgarh

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		... Respondents
For applicant	: Mr. Awadh Tripathi, Advocate
For Respondent	: Mr. Mayur Khandelwal, P.L.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J.

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Order on board

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25.09.2024

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1. The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) against the order dated 30/04/2024 passed by learned Addl. Sessions Judge, Sarangarh, DistRaigarh in CRR No. 11/2024 whereby the order dated 06/04/2024 passed in Criminal Case No. 847/2024 by learned Chief Judicial Magistrate, Sarangarh-Bilaigarh was affirmed. The learned Chief Judicial Magistrate,

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Sarangarh-Bilaigarh has dismissed the application filed by the petitioner under Section 451 of Cr.P.C. for grant of interim custody of the Pick up vehicle bearing registration No. CG-13-AR-4830 which has been seized in the offence of Crime No. 178/2024 registered at P.S. Sarangarh for the offence under Sections 4, 6, 10 and 11 of Chhattisgarh Agricultural Cattle Preservation Act, 2004 ( in short “the Act of 2004”).

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2. The brief facts of the case are that on 07/03/2024, the complainant Satish Yadav who is the General Secretary of Gau Seva Samiti, Sarangarh along with his other co-workers intercepted the said Pick up vehicle at VillageKotari, Basin Road which was found carrying 09 cows towards Orissa. The 05 cows were released in a safe place and 04 cows were taken to Police Station and kept in Kamlajhar Gaushala. The Police has registered the offence against the accused Laxmi Narayan Sahu, Baleshwar @ Bablu Yadav and Bhesh Kumar Yadav and after investigation, final report for the offence under Section 4, 6, 10 and 11 of the Act of 2004 have been filed before the learned Chief Judicial Magistrate, Sarangarh.

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3. During the pendency of the trial, the present petitioner had filed an application under Section 451 of Cr.P.C. for grant of interim custody of the seized Pick up vehicle bearing registration No. CG-13-AR-4830 which was dismissed vide order dated 06/04/2024 on the ground that there is a bar in the statute to release the vehicle within the period of six months from the commission of the offence and the said vehicle is liable to be confiscated.

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4. Being aggrieved by the aforesaid order passed by learned Chief Judicial Magistrate, Sarangarh, the petitioner had preferred the Criminal Revision before the Addl. Sessions Judge, Sarangarh, Dist- Raigarh who also dismissed the Criminal Revision filed by the petitioner considering the bar in the statute that the vehicle shall not be released before expiry of six months from the date of the offence or final decision of the trial whichever is earlier.

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Learned revisional Court has also considered that the vehicle was being seized on 08/03/2024 and six months has not been lapsed, further the trial of the case is still pending and also that the communication for initiation of the confiscation proceeding was made by the Police of Police Station- City Kotwali, Sarangarh to the Superintendent of Police. The said order dated 30/04/2024 passed by learned Addl. Sessions Judge, dismissing the Criminal Revision of the petitioner is under challenge in the present petition.

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5. Learned counsel for the petitioner would submit that the petitioner is the registered owner of the vehicle. The order passed by the learned trial Court as well as Revisional Court are illegal, unjust and against the settled principles of law. He further submits that if the vehicle remains in custody of the Police for long period, same shall get rot to rust and the petitioner shall be deprived of his livelihood. Although, the District Magistrate has started the confiscation proceeding but in view of the provisions of Section 6 of the Act of 2004, the vehicle cannot be confiscated by the District Magistrate until the accused is being convicted and in the present case the trial is still pending before the learned Chief Judicial Magistrate, Sarangarh. He would further submit that the order of confiscation under the Act of 2004 can be passed only after if Criminal Court found the violation of Sections 4, 5, and 6 of the Act of 2004 have been committed by the accused. During pendency of the Criminal Case, it was not fair on the part of the District Magistrate to finalize the confiscation proceeding and the jurisdiction of the Criminal Court did not oust the power to release the vehicle on interim custody till conclusion of the trial. He would also submit that the vehicle is being seized on 08/03/2024 and now the period of six months is over and there is no statutory bar to release the vehicle on interim custody. Therefore, the petition may be allowed and the seized Pick up vehicle may be released in favour of the petitioner on interim custody.

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6. On the other hand, learned State counsel opposes the submissions made by learned counsel for the petitioner and submitted that the learned trial Court as well as revisional Court has rightly dismissed the application of the petitioner on the ground that the six month period is not over and that the criminal case has also not been decided against the accused. He would also submit that from the document (Annexure-A/2) annexed with the petition, it appears that the District Magistrate has already started the confiscation proceeding and show cause notice was issued to the petitioner and therefore, the rejection of the application of the petitioner for grant of interim custody of the vehicle is justified and in accordance with law and prayed for dismissal of the petition.

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7. I have heard learned counsel for the parties and perused the material produced with the petition.

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8. From perusal of Rule 6 of the Chhattisgarh Agricultural Cattle Preservation Rules, 2014, it is clear that the Police Authorities are empowered to seize the vehicle or cattle in case of any violation of Section 4, 5, and 6 of the Act of 2004 and the District Magistrate is having power to confiscate the same in a manner proscribed. Rules 7 and 8 of the Chhattisgarh Agricultural Cattle Preservation Rules, 2014 provides the confiscation and revision which are re-produced as under:-

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"Rule-7-Confiscation by the District Magistrale .

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-The police is empowered to confiscate any vehicle, Agricultural cattle or its beef in case of any violation of Section 4, 5 and 6 and the District Magistrate shall confiscate such vehicle, Agricultural cattle or its beef as per the provisions of Section 100 of Code of Criminal Procedure, 1973 (No. 2 of 1974) in following manner, namely:-

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(a) He shall take possession of the vehicle;

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(b) He may sent the Agricultural cattle or its beef into the custody of any organization or person registered with the Chhattisgarh Go Seva Ayog, and

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Rule 8- Revision before the Session Court against order of the District Magistrate.

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-Any person aggrieved with the final order passed by the District Magistrate or any result of order, within thirty days of passing of such order may file an application for revision before such Sessions Court within whose Jurisdiction, Office of the District Magistrate is situated.

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Explanation. The time requisite for obtaining certified copy of order of the District Magistrate shall be excluded while computing period of thirty days referred to in this sub-rule.

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9. The Hon’ble Supreme Court in the matter of Abdul Vahab Vs. State of

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Madhya Pradesh, reported in 2022 SCC OnLine SC 262 has held in Para

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11, 12, 13, 14 and 15 that:-

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"11. The learned Judge in the impugned judgment (2019 SCC Online MP 7099, Abdul Vahab Vs. State of M.P.) also placed reliance on State of M.P Vs. Uday Singh (2020 (12) SCC 733), wherein it was held that the High Court erred in directing the Magistrate to release the seized vehicle in exercise of its inherent jurisdiction under Section 482 CrPC. Since the confiscation proceedings were initiated under Section 52(3) of the Forest Act, 1927 (as substituted by the MP Act 25 of 1983), further procedure was governed by the relevant provisions of the said act (and the M.P amendments to the Forest Act) and the jurisdiction of the criminal courts stood excluded. Further, the non-obstante clause in Section 52-C(1) gave overriding effect to the legislation. Resultantly, the powers vested in the magistrate under the CrPC were taken away. The relevant passage in the relied upon judgment reads as under:-

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29.3. Section 52-C stipulates that on the receipt of an intimation by the Magistrate under sub-section (4) of

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Section 52, no court, tribunal or authority, other than an authorised officer, an appellate authority or Court of Session (under Sections 52, 52-A and 52-B) shall have jurisdiction to pass orders with regard to possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. Sub- section (1) of Section 52-C has a non obstante provision which operates notwithstanding anything to the contrary contained in the Forest Act, 1927 or in any other law for the time being in force. The only saving is in respect of an officer duly empowered by the State Government for directing the immediate release of a property seized under Section 52, as provided in Section 61. Hence, upon the receipt of an intimation by the Magistrate of the initiation of confiscation proceedings under sub- section (4)(a) of Section 52, the bar of jurisdiction under sub-section (1) of Section 52-C is clearly attracted.

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29.4. The scheme contained in the amendments enacted to the Forest Act, 1927 in relation to the State of Madhya Pradesh, makes it abundantly clear that the direction which was issued by the High Court in the present case, in a petition under Section 482 CrPC, to the Magistrate to direct the interim release of the vehicle, which had been seized, was contrary to law. The jurisdiction under Section 451 CrPC was not available to the Magistrate, once the authorized officer initiated confiscation proceedings.

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The above would show that the powers of seizure, confiscation and forfeiture of produce illegally removed from forest is vested exclusively in Authorized Officers. As such, once the confiscation proceedings are initiated under the provisions of the aforenoted legislation, the jurisdiction of criminal courts is ousted, since it is the authorized officer who is vested with power to pass orders for interim custody of vehicles and the Magistrate is kept away.

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The aforenoted cases were cited in the impugned judgment (2019 SCC Online MP 7099) to hold that the Court did not have jurisdiction under Section 482, CrPC to grant relief to the appellant. This in our view is unacceptable since the applicable provisions in the aforementioned cases are not pari materia to the provisions of the 2004 Act. Most significantly, the 2004 Act with which we are concerned here, does not have any non obstante clause as in the Section 52-C(1) of the Forest Act, 1927 (as amended in relation to the State of Madhya Pradesh by M.P Act 25 of 1983) or Section 15-C

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of the Madhya Pradesh Van Upaj (Vyaapar Viniyam) Adhiniyam, 1969 which create bar on jurisdiction of the criminal courts.

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Returning to the present matter and the law that was invoked, we may gainfully notice that Section 11(4) of the 2004 Act, specifically applies the provisions of CrPC, in relation to search and seizure and Section 11 A(4) empowers the Appellate Authority to release the vehicle at interim stage itself. The Rules 5 and 6 of the MP Govansh Vadh Pratishedh Rules, 2012 empower the police to seize vehicle, the cow progeny and beef in case of violation of Sections 4, 5, 6,6A and 6B of the 2004 Act, as per Section 100 of the CrPC.

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As is discernible, the provisions of CrPC a re specifically made applicable in the 2004 Act and the 2012 Rules. Therefore, an erroneous conclusion was drawn on absence of power, to entertain the petition of the vehicle owner. In the context of the proceedings initiated under the M.P. Prohibition of Cow Slaughter Act, 2004 and there being no bar to exercise of jurisdiction of Criminal Courts including the High Court, under Section 482 CrPC, the High Court in our opinion was competent to entertain the petition under Section 482 CrPC.”

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10. Learned counsel for the petitioner had argued that in the present case, although, the confiscation proceeding have been started by the District Magistrate under Rule 7 of the Rules of 2014 but the same is not sustainable because the vehicle can not be confiscated by the District Magistrate, so long as criminal case is pending. As per the provisions of Section 6 Sub Section (3) of the Act of 2004, the District Magistrate can confiscate the vehicle only when a competent court has found the offence proved in violation of Section 4, 5, and 6 of the Act of 2004, where trial is pending and charges are yet to be proved, the District Magistrate should have refrain from passing any order of confiscation of vehicle during pendency of the criminal case.

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11. In the matter of Sheikh Kalim Vs. State of MP reported in 2015 SCC

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Online MP 7676 , the Madhya Pradesh High Court has held in Para 7, 8, 9 and 11 as under:-

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That in the similar circumstances this Court while dealing a case under the Indian Forest Act read with the MP Vanopaj Vyapar Viniyaman Adhiniyam 1969 in the Premdas (Supra), held that confiscation of the vehicle is unsustainable until and unless the criminal proceedings are finalized.

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The full Bench of this court in the case of Madhukar Rao Vs. State of MP (2000(1) JLJ 304), has laid down the principle that during pendency of the criminal case, confiscation proceedings should not be held and be finalized. This judgment has been affirmed by the Hon'ble Supreme Court in the case of State of MP Vs. Madhukar Rao (2008 (1) JLJ 427), wherein the Court observed that:-

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"...... The submission was carefully considered by the Full Bench of the High Court and on an examination of the various provisions of the Act it was held that the provision of Section 39(1)(d) would come into play only after a Court of competent jurisdiction found the accusation and the allegations made against the accused as true and recorded the finding that the seized article was, as a matter of fact, used in the commission of offence."

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The aforesaid principle laid down in Madhukar Rao (supra), reiterated and affirmed by the Hon’ble Supreme Court in the case of Principal Chief Conservator of Forest Vs. J.K. Johnson (AIR 2012 SC 61)

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Thus, in absence of any finding with regard to violation of Sections 4, 5, 6-A and 6-B of the Adhiniyam, by the criminal Court, the order passed by the Collector, confiscating the said vehicle under the Section 11 (5) of the Adhiniyam is bad in law.”

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12. Further in the matter of Moin Vs. State of Madhya Pradesh reported in

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2016 SCC Online MP 9893 , the Madhya Pradesh High Court has held in

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Para-5 as under:-

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"5. Legal side of this matter was considered in detail by this Court in the case of Sarvan S/o Prahalad Suraha and another v. State of M.P. in M.Cr.C.No.593/2015 dated 24.08.2015. In this case in para 14 of the order, this Court expressed the following observations:-

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"14. Therefore, in the considered opinion of this Court, the manner in which the property is to be confiscated, is not provided by the Act and the rules and, therefore, applying the principles laid down in the case of Madhukar Rao (Supra), the District Magistrate has no power to confiscate the vehicle till it is held by the competent Court of Magistrate that offence was in fact committed and the vehicle was used in commission of the offence. In this view of the matter, the questions framed in para 4 may be answered thus:-

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(i) The proceedings for confiscation before the District Magistrate can continue, however, no final order can be passed.

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(ii) Final order in the proceedings can be passed only after conclusion of trial before the Judicial Magistrate in which it was held that offence under the Act was committed and the vehicle was used for transporting cow progeny for slaughter."

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13. In the matter of State of West Bengal Vs. Sujit Kumar Rana reported in

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(2004) 4 SCC 129 , the Hon’ble Supreme Court emphasized on the need to maintain balance between statutes framed in public interest such as the Forest Act, 1927 and the consequential proceeding, depriving a person of his property, arising therefrom. It was accordingly observed that “commission of an offence” is one of the requisite ingredients for passing an order of confiscation and the same should not be passed automatically. In para 26 of its judgment, the Hon’ble Supreme Court has held that:-

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“26. An order of confiscation of forest produce in a proceeding under Section 59-A of the Act would not amount either to penalty or punishment. Such an order, however, can be passed only in the event a valid seizure is made and the authorized officer satisfies himself as regards ownership of the forest produce in the State as also commission of a forest offence. An order of confiscation is not to be passed automatically, and in terms of sub-section (3) of Section 59- A a discretionary power has been conferred upon the authorized officer

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in relation to a vehicle. Apart from the ingredients which are required to be proved in terms of sub-section (3) of Section 59-A by reason of the proviso appended to Section 59-B, a notice is also required to be issued to the owner of the vehicle and furthermore in terms of subsection (2) thereof an opportunity has to be granted to the owner of the vehicle so as to enable him to show that the same has been used in carrying forest produce without his knowledge or connivance and by necessary implication precautions therefor have been taken."

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14. It should be noted that the objective of the 2004 Act is punitive and deterrent in nature. Section 6 of the 2004 Act and Rule 7 of Rules of 2014, provided for seizure and confiscation of vehicle, in case of violation of sections 4, 5, and 6. The confiscation proceeding, before the District Magistrate, is different from criminal prosecution. However, both may run simultaneously, to facilitate speedy and effective adjudication with regard to confiscation of the means used for committing the offence. But in a case where the accused are acquitted in the Criminal Prosecution, the judgment given in the Criminal Trial should be factored in by the District Magistrate while deciding the confiscation proceeding. The ultimate result of confiscation of the vehicle when the accused is acquitted in the criminal prosecution, amounts to arbitrary, deprivation of his property and violates the right guaranteed to each person under Article 300-A of the Constitution of India.

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15. Thus, in the light of the aforesaid judgments of the Hon’ble Supreme Court and the Madhya Pradesh, High Court, it would not be out of place to mention here that in the provisions of the Act of 2004, even the confiscation proceeding pending before the District Magistrate the statutory bar to entertain the application for interim custody by the criminal courts has not been specified in the Rules as in the case in hand, trial is still pending and guilt of the accused have not been proved so far. Therefore, in such circumstances, the seized vehicle in the case may be released on interim custody.

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16. It is to be noted here that keeping the custody of the vehicle for a long time with the police or Court, is not required and is also not in the fair administration of justice. The Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in AIR 2003 SC 638, has emphasized the need of disposal of the property pending trial. It has been observed by the Hon’ble Supreme Court in Sunderbhai case (Supra) that the Court should exercise such power expeditiously and judiciously because it would serve various purposes, namely:-

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"1. Owner of the article would not suffer because of its remaining unused or by its misappropriation.

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Court or the police would not be required to keep the article in safe custody;

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If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and

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The jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."

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17. Therefore, in view of the forgoing discussion, as in the case on hand the trial is still pending and guilt of accused has not been proved so far under the Act of 2004. Therefore, in absence of findings of guilt, the District Magistrate can not confiscate the vehicle as provided under Section 6(3) of Act of 2004. The six month period has already been over from the date of its seizure. Therefore, this petition under Section 482 of Cr.P.C. filed by the petitioner is allowed and the orders passed by learned trial Court as well as learned Revisional Court are set aside.

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18. It is directed that the seized Pick up vehicle bearing Registration No. CG 13 AR 4830 shall be released on interim custody to the petitioner on furnishing the relevant undertakings to the tune of Rs. 7,00,000/- along with one surety

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in the like some to the satisfaction of the learned trial Court, subject to following conditions :-

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(i) that the petitioner/registered owner of the vehicle shall not alienate or transfer the vehicle during pendency of trial.

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(ii) that he will not commit similar offence under the provisions of the Act of 2004 till the matter is finally decided by the Criminal Court.

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(iii) that he shall also not change its machinery, color, outward appearance make etc.

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(iv) If in the judgment passed by criminal Court, the accused is convicted for commission of offence under the provisions of the Act of 2004, the petitioner shall produce the vehicle within a period of 7 days from date of delivery of judgment before the concerned police or District Magistrate and then, the District Magistrate concerned shall be at liberty to pass the order in confiscation proceeding in accordance with law.

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(v) The petitioner/ Registered owner of vehicle shall produce the vehicle before Criminal Court or the District Magistrate whenever and wherever, he is directed to do so.

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19. With the aforesaid condition, the present petition is allowed.

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Sd/(Ravindra Kumar Agrawal) Judge

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sagrika

Shyam Kumar Sahu v. State of Chhattisgarh

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Shyam Kumar Sahu v. State of Chhattisgarh

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