RAEES Vs. STATE OF M P

JUDGEMENT

(1.) Both these petitions are arising out of the orders passed by the Judicial Magistrate First Class, rejecting the applications under Section 451, Cr.P.C. refusing the interim custody of the vehicles used for an offence registered under Sections 4, 5, 6 and 9 of the Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam, 2004 (hereinafter it referred "the Adhiniyam, 2004") and Section 11-D of the Prevention of Cruelty to Animals Act, 1960 while transporting the alleged cattle, cow-progeny and beef. The orders passed by the Revisional Court affirming such order has also been assailed invoking the jurisdiction under Section 482, Cr.P.C. by filing both these petitions. On perusal of the orders passed by the two Courts it is apparent, that in Misc. Criminal Case No. 4938/2013 interim custody of the vehicle bearing No. MP-09-GF-4269 was refused; while in Misc. Criminal Case No. 1102/2013 interim custody of vehicle bearing registration No. MP-41-GA-0685 was refused. The Courts below have rejected the application merely on account of receiving the initiation of pendency of confiscation proceeding before the District Magistrate while passing the orders impugned, which are under challenge in these petitions.

(2.) Learned Counsel representing petitioners contends that as per the Adhiniyam, 2004, the power of confiscation has been conferred to the District Magistrate under Section 11(5) in a manner prescribed by law, but the jurisdiction of the Criminal Court to grant interim custody of the property pending trial has not been ousted, however, the order passed by the Trial Court refusing interim custody of the vehicles affirmed by the Revisional Court is not in conformity to law. It is submitted that either in the Adhiniyam, 2004 or in the Rules after commencement of the confiscation proceeding or on receiving the intimation to the Court from the Confiscating Authority the jurisdiction of the Court is not ousted. In support reliance has been placed on a judgment of Hon'ble the Apex Court in the case of Sunderbhai Ambalal Desia Vs. State of Gujarat, 2003 AIR(SC) 638 and the Full Bench judgment of this Court in the case of Madhukar Rao s/o Malik Rao Vs. State of M.P. and others, 2000 1 MPLJ 289 and also the order passed in Moh. Amjad s/o Asgar Husain Vs. State of M.P. and others, M.Cr.C. No. 8765/2012, decided on 9-8-2012, by the Principal Seat of this Court wherein the vehicle was seized under the provisions of the Adhiniyam, 2004 was released. In view of the aforesaid, it is urged that the refusal of the interim custody by the two Courts below is illegal, however, the orders impugned may be set aside and the direction to release the vehicle on Supurdagi may be issued during the trial.

(3.) Per contra Shri Karnik, learned Government Advocate representing the State submits that as per Section 11(5) of the Adhiniyam, 2004, the District Magistrate is having power to confiscate the vehicle or cow progeny and beef in a manner so prescribed. The State Government has framed the Rules in exercise of the powers conferred under Section 17 of the Adhiniyam, which is known as Madhya Pradesh Govansh Vadh Pratishedh Niyam, 2012 (hereinafter referred to as "the Rules of 2012"). Rule 5 specifies confiscation, by the District Magistrate, of the vehicles, cow progeny and beef. Thus, when the proceedings of confiscation is pending before the District Magistrate recourse under Section 451, Cr.P.C. for grant of interim custody by the Court is not permissible. It is his submission that after confiscation the person aggrieved may file appeal as per Rule 6 to the Divisional Commissioner, therefore, two Courts below have rightly refused the interim custody by passing the orders impugned. At this stage, it is his contention that as per the M.P. Excise Act, 1915 when the vehicle in question has been involved in commission of the offence of the said Act, after initiation of the pendency of confiscation proceedings, by the Court power under Section 451, Cr.P.C. is arrested. However, applying the similar analogy in the present case, the prayer so made in these petitions may be refused, upholding the orders of Courts below.