Court No. - 42
Case :- APPLICATION U/S 482 No. - 22886 of 2019 Applicant :- Mohd. Akram Asharfi Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vikrant Gupta Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsels for the parties.
This application has been filed praying for quashing of the order dated 29.03.2019 passed by the Chief Judicial Magistrate, Rampur in Criminal Misc. Case No.183 of 2019 under Section 41/42 of the Indian Forest Act and Sections 9, 41, 48-A of Wild Life Protection Act and Section 11 of Prevention of Cruelty to Animals Act in Case Crime No.153 of 2019, Police Station Civil Lines, District Rampur.
The brief facts of the case are that the police caught the vehicle of the applicant, being vehicle No.U.P. 22T 8460, wherein the prohibited birds, parakeets and rabbits about 60-70 in numbers were found being carried on 17.02.2019. The police registered the case under the aforesaid sections. An application was moved on behalf of the applicant claiming that he is power of attorney holder of the registered owner of the vehicle, Sri Rajeev son of Ram Kumar and the vehicle aforesaid has been seized by the police and it is standing in the open place. The vehicle was not involved in the incident and has been falsely implicated in the present case. It was further prayed that the aforesaid vehicle may be released in favour of the applicant regarding which he is ready to furnish security and undertaking. The accuseds have already been enlarged on bail.
On the aforesaid application, the Chief Judicial Magistrate, Rampur called for a report from the Divisional Forest Officer, Rampur and he submitted his report dated 06.03.2019 stating that as per Section 52D of the Indian Forest Act, 1927 there is bar of entertaining any proceedings by any court regarding custody, possession, delivery, disposal or distribution of property and regarding release of a vehicle which has been seized under Section 52A(1) of the Act and it is only the authorised officer under Section 52A or the State Government under Section 52B who had jurisdiction in this regard.
Accordingly, the Chief Judicial Magistrate, Rampur by the impugned order dated 29.03.2018 has rejected the application of the applicant for release of the vehicle on the ground that the proceedings for seizure of vehicle is pending before the Forest Officer and therefore, it cannot be released in favour of the applicant in view of the Section 52D of the Forest Act. Aggrieved by the aforesaid order, the applicant has approached this Court.
The counsel for the applicant has relied upon the order passed by this Court in Application U/s 482 No.11832 of 2018 on 06.07.2018 and has submitted that as yet the vehicle in dispute has not been confiscated by the Forest Officer and therefore, the Magistrate had power to release the vehicle till the order of confiscation is passed by the Forest Officer.
He has relied upon the following paragraphs of the aforesaid order:-
"Learned AGA as well as learned counsel for the applicant have placed before this Court the decision of the Hon'ble Supreme Court in State of UP Vs. Lalloo Singh 2007 (7) SCC 334 wherein it has been observed:-
"13. For appreciating this contention reference is necessary to Section 39 of the Act. Clause (d) of sub-section (1) of Section 39 deals with a situation when any vehicle, vessel, weapon, trap or tool has been used for committing an offence and has been seized under the provisions of the Act. The twin conditions are that the vehicle etc. must have been used for committing an offence and has been seized. Mere seizure of the property without any material to show that the same has been used for committing an offence does not make the seized property, the property of the Government. At this juncture, it is also to be noted that under sub-section (1) of Section 50 action can be taken if the concerned official has reasonable grounds for believing that any person has committed an offence under the Act. In other words, there has to be a reasonable ground for belief that an offence has been committed. When any person is detained, or things seized are taken before the magistrate, he has the power to deal with the same "in accordance with law". There is a significant addition in sub-section (4) by Act 16 of 2003 i.e. requirement of intimation to the Chief Wild Life Wardon or the officer authorized in this regard as to the action to be taken by the Magistrate when the seized property is taken before a Magistrate. A combined reading of the omitted sub- section (2) and the substituted sub-section (3A) of the Section 50 makes the position clear that prior to the omission, the officials under the Act had the power to direct release of the seized article. Under sub-section (1), the power for giving temporary custody subject to the condition that the same shall be produced if and when required by the magistrate is indicative of the fact that the Magistrate can pass appropriate orders in respect of the purported seized property which is taken before him. While dealing with an application for temporary release of custody, there cannot be a complete adjudication of the issues involved as the same is a matter for trial. While dealing with the application the Magistrate has to take into account the statutory mandate that the seized property becomes the property of the State Government when the same has been used for commission of an offence under the Act and has been seized. It appears that insertion in sub-section (4) relating to the intimation to the Chief Wild Life officer or the officer authorized by him is intended to give concerned official an opportunity of placing relevant materials on record before the Magistrate passes any order relating to release or custody. In appropriate cases on consideration of materials placed before him, prayer for such release or custody can be rejected." A perusal of the aforesaid exposition of law would show that immediately upon seizer of an article or vehicle under Section 39 of the Act, 1972, after amendments brought about by the Act 16 of 2003, the Magistrate is not powerless to deal with an application under Section 451 CrPC. He has to find out from the materials on record whether the vehicle or other property in question has been used prima facie in commission of an offence under the Act and has been seized. He may in appropriate cases make an order giving temporary custody of the seized vehicle/article subject to the condition that the same shall be produced if and when required by the Magistrate as provided in Sub-Section (3)(a) of Section 50 of the Act, 1972. It is also of importance that before the Magistrate passes an order relating to release from custody under Section 451 CrPC or decides not to do so, he must by virtue of Sub-Section 4 of Section 50 of the Act, 1972 give intimation to the Chief Wild Officer or other Officer authorized by him and provide him opportunity of placing relevant material on record.
In the present case the Magistrate has completely abdicated his jurisdiction to act in the matter holding as if seizer of an article in connection with an offence under the Act, 1972 by virtue of Section 39 operates has automatic confiscation and vesting in the State. This is not the correct position of law. Here in the present case no order of confiscation as per stand taken by the State has yet been passed. The Magistrate would, therefore, have jurisdiction to deal with application under Section 451 CrPC after intimation to the Chief Wild Life Officer or other Officer authorized by him in accordance with Section 50(4) of the Act, 1972 and affording him an opportunity to place relevant material on record. The Magistrate may upon consideration of material placed on record by the Investigating Agency and the Chief Wild Officer or other officer as aforesaid, pass orders either releasing the vehicle or giving it in temporary custody but subject to conditions imposed that the same shall be produced as and when required by the Magistrate or on the happening of any other contingency. "
In the case considered above, this Court finds that during the pendency of confiscation proceedings, the power of the Magistrate under Section 451 Cr.P.C. remains and he has to apply his mind whether he can pass an appropriate order of giving temporary custody of seized vehicle on the condition that it shall be produced before the Magistrate as and when required.
The Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujrat, 2003 AIR (SC) 638 has held that the vehicle should not be kept at police station for long time and should be given in interim custody of the real owner or any person who undertakes to produce the same as and when directed by the Magistrate.
Learned AGA could not dispute the above legal position.
In view of the above consideration, the Chief Judicial Magistrate, Rampur is directed to release the vehicle of the applicant till the Forest Officer passes any order of confiscation of the vehicle in his favour subject to suitable conditions which may be imposed by him within ten days of filing of certified copy of the order before him. The vehicle is standing in the police station since February, 2019 and will become useless if appropriate orders are not passed by the C.J.M. to prevent the vehicle from being further damaged in rainy season. In case the order of confiscation of vehicle has been passed by Forest Officer then order shall not have any effect and applicant would be at liberty to avail remedy provided under Section 52B of Indian Forest Act, 1927.
This application is allowed.
Order Date :- 24.6.2019 Nitin Verma