Allowed

MD Aiyub v. the State of Jharkhand

Jharkhand HC8 Sept 2020Cr.Rev./111/2020

Case brief

AI extract

What is this about?

Petitioner challenged rejection of application for release of seized vehicle. Court held forfeiture requires conviction after trial, distinguished confiscation, set aside impugned order, and directed release on indemnity bond.

What did the court decide?

Vehicle released on furnishing of indemnity bond with two sureties, undertaking not to alienate vehicle, and submission to additional police conditions.

MD Aiyub Vs the State of Jharkhand — Property and Title | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No.111 of 2020

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Md Aiyub @ Mohammad Ayub …… Petitioner

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Versus

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The State of Jharkhand ….. Opp. Party ---------

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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA --------- For the Petitioner : Mr. Rahul Pandey, Advocate Mr. Ankit Apoorva, Advocate For the State : Mr. Suraj Verma, Special P.P ---------

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04/Dated: 08th September, 2020

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1. This revision application has been preferred under Sections 397 & 401 of the Code of Criminal Procedure against the order dated 09.01.2020 passed by the court of learned Chief Judicial Magistrate, Simdega in Misc. Criminal Application No.767 of 2019, whereby the prayer for release of vehicle bearing registration No.JH-01-CD-3934, in favour of the petitioner, has been rejected.

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2. Learned counsel for the petitioner has submitted that T. Tangar P.S. Case No. 50 of 2019 was registered under Section 414 read with Section 34 of the Indian Penal Code, Section 11 of Prevention of Cruelty to Animals Act, 1960 and Sections 12(1)(2)/ 13 of Jharkhand Bovine Animal (Prohibition of Slaughter) Act, 2005. It is submitted that the aforementioned vehicle was seized by the police on the allegation that cattle were being carried in the vehicle in a cruel manner.

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It is submitted that the court below has rejected the application without following the guidelines as laid down by the Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat (2002) 10, SCC, 283; and the order dated 20.06.2014 passed in Cr. Revision No.91of 2014 by this Court.

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3. Learned APP while opposing the application has not controverted that this Court in similar circumstances had ordered for release of the seized vehicle.

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4. Heard. It appears from the impugned order that the court below has rejected the prayer for release of the vehicle on the ground that the investigation was still going on and

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the Officer-in-Charge had informed the court that a petition has been filed for for confiscation of the vehicle bearing registration No. JH-01-CD-3934.

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Before going into the legality and propriety of the impugned order, it is pertinent to point that neither under Prevention of Cruelty to Animals Act, 1960 (for short ' the Act of 1960 ') nor under Jharkhand Bovine Animal (Prohibition of Slaughter) Act, 2005 (for short ' the Act of 2005 '), there is any provision for confiscation of the vehicle used in transportation of cattle or beef in contravention of the provisions of the Act, as provided under some Acts, e.g., Section 6 of Essential Commodities Act, 1955; Section 52 of the Forest Act; Section 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985, there is provision of confiscation of the articles or vehicle used for transportation in contravention of the provisions of this Act.

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5 . Section 12 of Act of 1960 is a penal provision prescribing the punishment to be inflicted and forfeiture of the animal and Section 13 prescribes for destruction of an animal in certain circumstances by the competent authority as mentioned in Section 13.

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On the other hand under the Act of 2005, sub-section (3) of Section 12 provides for forfeiture of the vehicle used in transportation of cattle or beef contravening any provision of the Act.

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For proper appreciation, it will be profitable to refer to the provisions of Section 12 of the Act of 2005, which reads as under :-

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“12. Penalty – (1) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of Section 3 or Section 5 or Section 6 or Section 7 shall on conviction be punished with a rigorous imprisonment of either description for a term which shall not be less than one year but may extend to 10 years and with fine which may extend to ten thousand rupees.

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(2) Whoever contravenes or attempts to contravene or abets the contravention of the provisions of sub-section -3- (a) and (b) of Section 4 shall on conviction be punished with rigorous imprisonments of either description for a term which may extend up to 3 years and with a fine which may extend to 5 thousand rupees:

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Provided that except for special and adequate reasons to be recorded n the judgment of the Court such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees.

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(3) Whenever a vehicle is found to have been used in transportation of Cattle or beef contravening any

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provision of this Act the vehicle shall be forfeited to the State Government.”

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On plain reading of the provision it is evident that Section 12 prescribes the punishment to be inflicted after the accused is found guilty, on the basis of the evidence led during trial, of committing the offence under the provisions of the Act of 2005.

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6 . In this connection it is necessary to reiterate the well settled proposition of law that when words of statute are clear, plain and unambiguous and susceptible to one meaning then the court's function is to follow the rule of literal interpretation and give effect to it because in such cases the statute unequivocally speaks about the intention of the legislature. In other words in the absence of any context indicating a contrary intention the same meaning should be attached to the word used in the statute and construction of a statute which leads to confusion should be avoided. It goes without saying that the words used in a statute are not static but dynamic and the court's function is to adopt the dynamic meaning which gives the thrust to the statute for achieving the objectivity which is intended by the legislature.

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It is true that while constructing the statute, courts are not only required to take into consideration the purpose for which the statute has been enacted but also the mischief which it seeks to suppress consequently the meaning of the word or expression in common parlance or in common used should be accepted.

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The Supreme Court in State of Andra Pradesh Vs. Andra Provincial Potteries, Ltd., & Ors,; AIR 1973 SC 2429 (at page 2433), has observed :

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“ …......... Where the words of the section are very clear it is unnecessary to consider whether it embodies any principle and whether that principle is consistent with the principle as embodied in certain other sections which are differently worded. In interpreting a penal provision it is not permissible to give an extended meaning to the plain words of the section on the ground that a principle recognised in respect of certain other provisions of law requires that this section should be interpreted in the same way”.

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7. It is well settled proposition that in deciding the true scope and effect of the relevant words in any statutory provisions the context in which the provision is intended or inserted and the policy underlying the statute assume relevance and become material. It is relevant to note that in

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Halsburys' Law it has been stated that the word should be construed in the light of their context rather than what may be either strict etymological sense or their popular meaning apart from the context.

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8. The cardinal rule in construing the statute is that all parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof, so that the construction to be put on a particular provision makes a consistent enactment the whole statute. Thus, in view of the established legal proposition it is necessary to interpret the usage of the words 'found' and 'forfeiture' as incorporated in Sub-section (3) of Section 12 of the Act.

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9. The word 'found' as inserted in Sub-section (3) of Section 12, in legal sense means the conclusive finding arrived by the court, on the basis of the evidence led during the trial, regarding the guilt or innocence of the accused.

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'Forfeiture' is of two types, i.e., criminal forfeiture that is known as forfeiture in personam and civil forfeiture that is known as forfeiture in rem. Forfeiture in criminal cases is based upon, and requires, the finding that the accused is guilty of committing the offence and thereafter the article or vehicle stands forfeited. The forfeiture of such vehicle follows the conviction, and operates as a punishment as against a specific individual (in personam). The property is forfeited because of the guilt of the owner, not the ‘guilt’ of the property.

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10. The procedure of forfeiture is distinct from 'confiscation'. It is relevant to state that 'confiscation' is derivative of the Latin word ' confiscare ' which means “to consign to the fiscus” in simple words which mean “transfer to the treasury.”

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The process of confiscation, as provided under other Acts, e.g., under Section 52 the Indian Forest Act, is not dependent upon launching of criminal prosecution as it has nowhere been provided in the Forest Act, that the forest produce seized can be confiscated only after criminal prosecution is launched and the condition precedent for initiating a confiscation proceeding is commission of forest offence.

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11. In view of the discussion made, hereinabove, it is

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abundantly clear that forfeiture of the vehicle under Subsection (3) of Section 12 of the Act, can be ordered only after the court has recorded its satisfaction and found the accused guilty with the finding that the vehicle was used in transportation of cattle or beef in contravention of the provisions of the Act. This aspect of the provisions of Section 12(3) has not been considered by the the court of Chief Judicial Magistrate, Simdega.

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12. It is noticed as matter of common experience that large number of vehicles are kept under the open sky in an uncared manner in the premises of the police station and due to vagaries of weather the vehicles are damaged and become junk, as such, detention of commercial vehicle for a long period in the premises of police station will not serve any purpose. It will not only cause loss to the owner but also loss of revenue to the State Exchequer due to non-pliance of the commercial vehicle.

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13. In the attending facts and circumstances, the petitioner is at liberty to file an appropriate application, along with relevant documents, in the court below. If the application is so filed, the court below shall call for a report from the District Transport Officer and the Investigating Officer regarding the genuinity of the documents and if the report is submitted in favour of the petitioner, the court below shall release the vehicle bearing registration No.JH-01-CD-3934 in favour of the petitioner on furnishing of indemnity bond with two sureties of the like amount each. The petitioner shall give an undertaking and guarantee that :-

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(i) he shall not sale, mortgage or transfer the ownership of the vehicle on hire purchase agreement or mortgage or in any manner, till conclusion of the trial;

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(ii) the custody of the vehicle shall be subject to the orders to be passed by the court on conclusion of trial;

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(iii) he shall not alienate or tamper with the identification of the vehicle in any manner

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(iv) he shall produce the vehicle before the competent authority as and when directed by the court;

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14. Before release of the vehicle the court below shall

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direct the police to take the photographs of the vehicle and prepare a detailed panchnama; and the court below is at liberty to impose any other terms and conditions which it deems fit and proper.

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15. With the said direction the impugned order dated 09.01.2020, passed by the court of learned Chief Judicial Magistrate, Simdega, in Misc. Criminal Application No.767 of 2019, is, hereby, set aside.

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16. Let a copy of this order be communicated to the court below.

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17. In the result the application is, hereby, disposed off.

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(AMITAV K. GUPTA, J.)

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Chandan-Rohit/-

MD Aiyub v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

MD Aiyub v. the State of Jharkhand

Case brief

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