Vehicle cannot be confiscated merely on accusation of commission of offence, by invoking Section 451 of Cr.P.C. said vehicle can be released

advtanmoy 21/12/2018 6 minutes read

The vehicles seized under Section 50 from alleged offender cannot become property of State unless there is trial and finding reached by competent court that property seized was used for committing the offence. The vehicle cannot be confiscated merely on accusation or suspicion of commission of offence. It was further held that by invoking Section 451 of Cr.P.C. said vehicle can be released.

(2015) 1 MPWN 167 : (2014) 47 RCR(Criminal) 871

MADHYA PRADESH HIGH COURT (GWALIOR BENCH)

SINGLE BENCH

( Before : Sujoy Paul, J. )

SHRIRAM YADAV — Appellant

Vs.

GAME RANGE STATE OF M.P — Respondent

Writ Petition No. 5012 of 2013 and 2461 of 2014

Decided on : 03-12-2014

Criminal Procedure Code, 1973 (CrPC) – Section 451
Wild Life (Protection) Act, 1972 – Section 39(1)(d), 50
Cases Referred

Madhukar Rao Vs. State of M.P., (2000) (I) MPLJ 289
Premdas Vs. State of M.P., (2013) 3 M.P.H.T. 342
Princl. Chief Conservator of Forest Vs. J.K. Johnson, AIR 2012 SC 61
State of M.P. Madhukar Rao, (2008) 14 SCC 624

ORDER

Sujoy Paul, J.—Since these matters are arising out of same incident and are interconnected, on the joint request of parties, matters were finally heard and decided by this common order.

WP No. 5012/2013

2. The petitioner is owner of a tractor. As per prosecution story, the petitioner’s tractor was found at the bank of Mahuar river at Chandpatha Ghat. The labourers were filling the trolley attached with tractor by sand. The tractor and trolley with 2.80 cubic meter sand were seized. The offence under various sections of Wild Life Protection Act, 1972 (1972, Act) were alleged against the petitioner. The concerned Magistrate was intimated by the Forest Department about the incident on 13.01.2013. This is admitted between the parties that trial is going on. The prescribed authority passed the impugned order dated 27.06.2013 and petitioner’s tractor and trolley is confiscated.

3. In earlier WP. 5012/2013, this Court on 22.10.2013 passed an interim order and stayed the effect and operation of impugned order dated 27.06.2013. It is made clear that said interim order would not mean that vehicle seized shall be given in custody of the petitioner. It was also made clear that it shall remain in the custody of State unless and until the Magistrate concerned issues directions in accordance with law. Equipped with this order, the petitioner filed an application under Section 451 Cr.P.C. before the court below. The Court below by order dated 29.10.2013 rejected the interim application. Petitioner assailed this order by filing Criminal Revision No. 2/2014 before Additional Session Judge, Karera (Shivpuri). The said Court did not interfere with the impugned order and rejected petitioner’s prayer for releasing the vehicle.

4. Shri B.S. Dhakad, learned counsel for the petitioner, relied on 2000 (I) MPLJ 289 ( Madhukar Rao v. State of M.P. & Ors.) to submit that in view of this full Bench Judgment which is affirmed by the Supreme Court in (2008) 14 SCC 624 ( State of M.P. & Ors. Madhukar Rao) it is clear that unless petitioner is held to be guilty by the Court of competent jurisdiction, his vehicle cannot be confiscated. He submits that any property including vehicle seized on accusation or suspicion of commission of offence under the Act can be released by the Magistrate. Mere seizure of any property on the charge of commission of offence would not make the property to be a State Government’s property under Section 39(1)(d) of 1972 Act. He also relied on the judgment of Supreme Court reported in AIR 2012 SC 61 (Princl. Chief Conservator of Forest & Anr. v. J.K. Johnson & Ors.) and judgment reported in 2013 (3) M.P.H.T. 342 (Premdas v. State of M.P. & Ors.). Criticizing the impugned orders dated 29.10.2013 & 22.03.2014 (Annexure P/1 & P/2), it is urged that courts below have erred in rejecting the application preferred under Section 451 Cr.P.C. on the ground that the WP No. 5012/2013 is subjudice. By placing reliance on the interim order dated 22.10.2013, it is argued that it was open for the competent Court to decide the application in accordance with law. Courts below have failed to apply mind and exercise the jurisdiction vested in it which warrants interference by this Court.

5. Per Contra, Shri A.S. Rathore, supported the impugned orders. He relied on various paragraphs of the reply.

6. In the opinion of this Court, In Madhukar Rao (Supra) in no uncertain terms the Full Bench of this Court opined that the vehicles seized under Section 50 from alleged offender cannot become property of State unless there is trial and finding reached by competent court that property seized was used for committing the offence. The vehicle cannot be confiscated merely on accusation or suspicion of commission of offence. It was further held that by invoking Section 451 of Cr.P.C. said vehicle can be released. This view is followed by Apex Court in J.K. Johnson (Supra) The Apex Court opined that forfeiture and seizure have different meaning and connotation in law. The judgment of Madhukar Rao (Supra) is followed by Supreme Court. In Premdas (Supra) the Principal Bench again followed the same principle. In the present case, admittedly, the trial is still pending and no finding is recorded by the competent Court that the petitioner’s vehicle was used for commission of forest offence. Thus, the impugned order dated 27.06.2013 to the extent petitioner’s vehicle is confiscated, needs to be interfered with. Resultantly, the said order to the extent deals with confiscation is set aside.

7. I find substance in the argument of Shri Dhakad that in view of interim order dated 22.10.2013 and even otherwise it was open to the competent court to decide the application preferred by the petitioner under Section 451 of Cr.P.C. The Courts below have erred in rejecting the said application on the ground of pendency of WP. 5012/2013. Resultantly, order dated 29.10.2013 & 22.03.2014 are set aside. Judicial Magistrate First Class, Karera is directed to rehear the parties on the application preferred under Section 451 Cr.P.C. and decide it in accordance with law. It is made clear that this Court has not expressed any view on merits of the matter. Putting it differently, it is open to the Court below to decide whether petitioner is entitled for relief of release of the vehicle and in this regard, no view is expressed by this Court.

8. Petitions are allowed to the extent indicated above. No costs.