Mohd. Islam and Others vs State of M.P. and Others

M.K. Mudgal, J.—The petitioners have filed the revision u/s 397 of the Code of Criminal Procedure being aggrieved by the order dated 31.5.2013 passed by the Court of Additional Sessions Judge Lahar in Criminal Revision No. 100/2013 setting aside the order dated 8.5.2013 passed by the Court of Judicial Magistrate First Class Lahar releasing the seized trucks to the petitioners. Facts in brief of the case are that on 18.04.2013, the Station House Officer, Police Station Damoh on receiving information from an informer that five trucks loaded with calves (cow progeny) are being carried for illegal sale, he along with posse of policemen intercepted the trucks near Kaksi Road mandir of village Fardua and seized three trucks, truck No. UP78/BTO1 28 loaded with 39 calves, truck No. UP77 N 1579 loaded with 33 calves and UP77 N 9154 with 22 calves.

As per allegation of the prosecution, the cow progeny was loaded mercilessly and there was no space for them to move. On being asked the drivers of the said trucks stated their names to be Mohd. Nasim, Devendra Kumar alias Rajveer and Mohd. Azad, the respondents No. 2, 3 and 4. The said drivers were arrested and the trucks along with calves were also seized. A criminal case bearing Crime No. 49/13 for the offence punishable under Sections 6, 6(a), 3(2), 9 of the Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam (hereinafter referred as to ''the Act'') and under Sections 11(d)(f) and (o), 26 of the Prevention of Cruelty to Animals Act was registered. Later the said accused were released on bail by the Court of Learned Judicial Magistrate First Class.

The petitioners have submitted that they are the owner of the said trucks they applied for releasing and handing over the said trucks on supardagi before the learned Magistrate. The learned Magistrate was pleased to allow the application and it was ordered vide order dated 8.5.2013 that the said trucks be given in Supurdagi to the petitioners on their furnishing sureties and supurdginama. On that very day the petitioners furnished surety and supurdginama before the learned Magistrate and learned Magistrate ordered the police station Damoh to hand over the said trucks to them.

It has been further alleged by the petitioners that the said Station House Officer disobeyed the order and did not handover the trucks. The revision petition against the order dated 08.05.2013 filed by the respondent before the Court of Additional Sessions Judge, Lahar where from allowing the Criminal Revision No. 100/2013 setting aside the order dated 08.05.2013 the applications filed by the petitioners were rejected vide order dated 31.05.2013. The instant revision has been filed against the impugned order.

The learned senior counsel for the petitioners submits that the order of the learned Additional Sessions Judge being illegal contrary to law deserves to be set aside. Though there is a provision u/s 11(5) of the Act the District Magistrate shall confiscate such vehicle, cow progeny and beef in such manner as may be prescribed yet jurisdiction of the Judicial Magistrate is not barred to release the seized property in interim custody. The learned counsel further argues that the learned Additional Sessions Judge has tried to justify the impugned order on the basis of the provisions of the other acts as Forest Act, M.P. Excise Act, The Wild Life Protection Act, Drugs and Psychotropic substances Act and Essential Commodities Act, wherein there is a specific provision to restrict the jurisdiction of a judicial Magistrate for releasing the seized property in interim custody if the proceedings of the confiscation are commenced before the competent authority and the information in this regard is received to the concerned Magistrate. However, the Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam has no provision in the like manner the said provisions. The order of the Judicial Magistrate First Class was based on proper reasonings. There was no reason to interfere in the said order. In spite of this the order dated 08.05.2013 was set aside by the impugned order without any legal basis. The learned counsel placing reliance on the judgment State of M.P. and Others Vs. Madhukar Rao, .

The learned Public Prosecutor appearing on the behalf of the respondent/state controverting the submissions made by the petitioners'' counsel has submitted that the reasonings of the impugned order are based on proper approach as the provision u/s 11(5) of the Act is provided for the confiscating of the property seized under the Act by the District Magistrate. The learned Public prosecutor further submits that in the instant case the proceedings have been commenced by the District Magistrate for confiscation of the seized trucks, hence learned Judicial Magistrate First Class has no jurisdiction to pass the order dated 08.05.2013 for releasing the seized trucks because of this the said order was set aside by the impugned order.

Heard the arguments of both the parties and perused the record.

On perusal of the impugned order dated 31.05.2013, it becomes clear that the order runs in 11 pages. Indisputedly, the ownership of the seized trucks was not disputed neither before the learned judicial Magistrate First Class nor learned Additional Sessions Judge, Lahar.

The following question arises for consideration in this revision:-

Whether the trial Court i.e. the Court of Judicial Magistrate has jurisdiction to release the seized property in interim custody under Sections 451 and 457 of the Cr.P.C.?

In the impugned order dated 31.05.2013 the learned Additional Sessions judge has referred to the provisions of the Forest Act, M.P. Excise Act., Wile Life Protection Act, the NDPS Act and the Essential Commodities Act and the order has been burdened with unnecessarily details. The provisions of the said act are not analogous to the Act of Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam. As in the aforesaid Acts there is a specific provision to restrict the jurisdiction of the trial Court i.e. Judicial Magistrate First Class to release the seized property in interim custody where the proceedings for confiscation have commenced before the competent authority and information in this regard is received by the concerned trial court i.e. Judicial Magistrate but there is no provision in the Act. The learned A.S.J. Court has relied on the provision of 11(5) of the Act which is as under:-

(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 vehicle, cow progeny and beef in such manner as may be prescribed.

In the Act no procedure has been prescribed for the proceedings of confiscation. The learned counsel of both the parties have informed the Court that no rules have been framed under the said act. An appeal may be filed u/s 11-A against the order of confiscation which is passed u/s 11(5) of the Act and revision may be filed u/s 11-B of the Act against the order of the appellate authority before the court of sessions judge. On perusal of the aforesaid provisions, it is evident that there is no provision to restrict the jurisdiction of the Judicial Magistrate First Class to release the seized property in interim custody during pendency of the investigation or trial. Where a specific restriction is not made in the provision of the Act the jurisdiction of the Judicial Magistrate cannot be deemed to be ousted as held by the learned Additional Sessions Judge without any basis.

The Hon''ble Apex Court in the judgment Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, has held as under:

The powers under S. 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes namely:

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

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

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 property in detail: and

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.

The procedure for disposal of seized articles and currency notes, vehicles, seized liquor and Narcotics durgs suggested. Further Magistrate directed to pass appropriate orders immediately and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. The said object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly.

The learned Additional Sessions Judge has cited various judgments in the impugned order which are not related to the question involved in this case. The learned Additional Sessions Judge has mentioned in pare 26 to 28 in the impugned order that the proceedings for confiscation of the seized trucks have been commenced before the District Magistrate and so the Judicial Magistrate First Class has no jurisdiction to pass the order dated 08.05.2013 releasing the seized trucks to be handed over to the owners of the trucks on supardagi. The view taken by the learned Additional Sessions Judge is not based on correct approach. For the sake of movement even if the proceedings for confiscation have been commenced before the District Magistrate for confiscation of the seized trucks. The jurisdiction of the Judicial Magistrate First Class i.e. trial court is not ousted from releasing the said property in interim custody as there is no rider in the act to restrict the power of the judicial Magistrate to release the seized property in interim custody. On the above analysis, it is concluded that the order dated 31.05.2013 passed by the learned Additional Sessions Judge being contrary to law is hereby set aside and the order dated 08.05.2013 passed by the Court of Judicial Magistrate First Class, Lahar is restored. Consequently, the revision petition is allowed accordingly.