Nitin Singh v. State of U.P. and Anr

Reserved on 20.03.2024 Delivered on 03.04.2024 Court No. - 27 Case :- CRIMINAL MISC. WRIT PETITION No. - 28598 of 2021 Petitioner :- Nitin Singh Respondent :- State Of U.P. And Anr. Counsel for Petitioner :- Firoz Ahmad Khan,Anil Kumar Tiwari,Ramzan Ali Khan Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.

¶1Heard Sri Nitin Singh, learned counsel for the petitioner and Sri Ashok Kumar Singh, learned A.G.A.-I for the State and perused the record.

¶2This petition under Article 227 of the Constitution of India has been filed with the following relief (s):

(i) issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 12.07.2021 passed by the learned District Magistrate, Ayodhya in Case No. 00546/2021 (Nitin Singh Vs. State of U.P.) Computerized No. D202104230000546 under Section 5-A Uttar Pradesh Prevention of Cow Slaughter Act, 1955 as well as order dated 28.01.2021 passed by the learned Judicial Magistrate-Ist, Faizabad, in Crime No. 731/2020, under Sections 3/5/8 of Uttar Pradesh Prevention of Cow Slaughters Act and 11 of Prevention of Cruelty to Animals Act and Section 307, 504 pertaining to Police Station Inayat Nagar, District Faizabad/Ayodhya, as contanined as Annexure no. 1 & 2 to this writ petition.

(ii) Issue a writ, order or direction in the nature of mandamus to stay the operation and implementation of the impugned judgment and orders dated 12.07.2021 passed by the learned District Magistrate, Ayodhya in Case No. 00546/2021 (Nitin Singh Vs. State of U.P.) Computerized No. D202104230000546 under Section 5-A Uttar Pradesh Prevention of Cow Slaughter Act, 1955 as well as order dated 28.01.2021 passed by the learned Judicial Magistrate-Ist, Faizabad, in Crime No. 731/2020, under Sections 3/5/8 of Uttar Pradesh Prevention of Cow Slaughters Act and 11 of Prevention of Cruelty to Animals Act and Section 307, 504 pertaining to Police Station Inayat Nagar, District Faizabad/Ayodhya and further the Hon'ble Court may kindly be pleased to release the confiscated vehicle bearing registration No. UP-50-4451 in favour of the petitioner, in the interest of justice."

¶3Learned A.G.A. has already filed counter affidavit and in reply thereto learned counsel for the petitioner has filed rejoinder affidavit, which are available on record.

¶4Learned counsel for the petitioner further submits that on

27.12.2020 police of Police Station Inayat Nagar lodged the F.I.R. in Case Crime No. 731/2020, under Sections 3/5/8 of Uttar Pradesh Prevention of Cow Slaughters Act and 11 of Prevention of Cruelty to Animals Act and Section 307, 504 I.P.C., pertaining to Police Station-Inayat Nagar District Faizabad/Ayodhya against four accused persons. In the said FIR the police has leveled the serious allegations in regard to slaughtering of cows and further alleged for transportation of the prohibited animal for the purpose of slaughtering. The police have filed the charge sheet without making proper investigation against the culprits.

¶5petitioner is the registered owner of Vehicle/D.C.M.No. UP-50-CT-4451 which is duly registered in the Transport Department, U.P. and he is plying his vehicle as a hire purchase and during the course of business on 27.12.2020 the vehicle was caught by the police of Police Station Inayat Nagar, District Ayodhya was seized on 27.12.2020. He further submits that the said vehicle at the time of seizer completed the entire formalities for registration and the vehicle was plying by the driver.

¶6petitioner moved release application before the Judicial Magistrate-Ist, Faizabad on 01.01.2021 but learned Magistrate without applying his judicial mind rejected the same on 28.01.2021 and recorded the perverse finding that in the matters of release the vehicles this Court having no jurisdiction.

¶7Learned counsel for the petitioner further submits that thereafter the petitioner moved release application befor the District Magistrate, Ayodhya on 29.01.2021 and the learned Magistrate rejected the application of the petitioner vide order dated 12.07.2021 with the finding that the seized vehicle at the time of the incident having no any valid papers for transportation of bullocks and presumes that the said vehicle was indulge in transporting bullocks.

¶8impugned order dated 12.07.2021 passed by the District Magistrate, Ayodhya is totally illegal. He further submits that the learned Magistrate by exceeding its jurisdiction has passed the impugned order on a wrong finding that the confiscated vehicle was used in cow slaughtering or in transportation of cow or its progeny which is totally perverse and the learned Magistrate has not considered the evidence adduced by the petitioner.

¶9Learned counsel for the petitioner further submits that no such activities of transportation of the aforesaid cow species were done as per the allegations made by the prosecution but the vehicle in question of the petitioner has been seized in an arbitrary manner.

¶10petitioner is facing great jeopardize due to confiscated of vehicle by learned District Magistrate, Ayodhya and his livelihood is depend upon the said vehicle and now his family has come at the verge of starvation.

¶11vehicle was seized on 27.12.2020 and the said vehicle is standing in open yard for more than 11 months and with the passage of time ultimately it will become junk and after sometime it is not useful for any purpose. Reliance has been placed on the law laid down by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujrat, AIR 2003 SC 638.

¶12Learned counsel for the petitioner has further drawn the attention of the Court regarding the provisions of Sections 451 and 457 of Cr.P.C., which is quoted as under:-"451. Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.-For the purposes of this section," property" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

¶457Procedure by police upon seizure of property.-(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

¶13petitioner is ready to comply with all the conditions, which the lower court will impose while releasing the vehicle. Undisputedly, petitioner is the rightful owner of the vehicle, therefore, the vehicle be released in his favour and the impugned order be quashed.

¶14Per contra, learned A.G.A. submits that the vehicle in question was being used for transportation of bullocks illegally at the time of alleged offence and the vehicle in question was correctly seized by the District Magistrate, Ayodhya vide its impugned order dated

12.07.2021. Thus, the District Magistrate, Ayodhya has rightly passed the impugned order dated 12.07.2021 and there is no illegality and the appeal was rightly dismissed, no interference is required.

¶15I have heard the learned counsel for the parties and carefully gone through the relevant legal provisions and the judgments rendered by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (supra) and the judgment passed by this court in various cases.

¶16The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai, AIR 2003 SC 638 (supra) in para 17 and 21 has been pleased to held as under:- "17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of application for return of such vehicles.

¶21However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. Are properly and promptly exercised 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. This 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."

¶17In Nand Vs. State of U.P., 1996 Law Suit (All) 423 this Court has observed that pendency of the confiscation proceedings under Section 72 of the U. P. Excise Act is not a bar for release of the vehicle which is required for the trial under Section 60 of the U.P. Excise Act. It has been clearly observed by this Court in para 7 that:- "I think it is not proper to allow the truck to be damaged by remaining stationed at police station. Admittedly, the ownership of the truck is not disputed. The State of Uttar Pradesh does not claim its ownership. Therefore, I think it will be proper and in the larger interest of public as well as the revisionist that the revisionist gives a Bank guarantee of Rs. 2 lakhs before the C.J.M., Kanpur Dehat and files a bond that he shall be producing the truck as and when needed by the criminal courts or the District Magistrate, Kanpur Dehat, and he shall not make any changes nor any variation in the truck."

¶18This Court further has held in the case of Jai Prakash Vs. State of U.P., 1992 AWC 1744 that mere pendency of confiscation proceedings before the Collector is no bar to release the vehicle.

¶19In Kamaljeet Singh Vs. State of U.P., 1986 U.P. Cri. Ruling 50 (Alld), the same view was taken by this court that pendency of confiscation proceedings shall not operate as bar against the release of vehicle seized u/s 60 of Excise Act.

¶20In the opinion of this Court, it is not disputed that the power under Section 451 of Cr.P.C. is not properly and widely used by the court below while passing the orders. The power conferred under Section 451 of Cr.P.C. be exercised by the court below with judicious mind and without any unnecessarily delay. So that the litigant may not suffer, merely keeping the article in the custody of the police in the open yard will not fulfil any purpose and ultimately it result the damage of the said property. The owner of the property be allowed to enjoy the fruits of the said property for the remaining period for which the property is being made.

¶21Further in the opinion of this Court, the procedure as contemplated under Section 457 of Cr.P.C. be also followed promptly, so that the concerned Magistrate may take prompt decision for disposal of such properties and be released in favour of the entitled person of the said property, keeping the said property in the custody will not solve any purpose and that gives a mental and financial torture to the owner of the said property which is also against the law and against the principles of natural justice.

¶22As per the legal propositions mentioned above and keeping in view this fact that undisputedly the petitioner is the registered owner of the seized vehicle and the ownership of the vehicle is not in dispute neither the State or any other person has claimed their ownership over the vehicle, therefore, no useful purpose will be served in keeping the vehicle stationed at the police station in the open yard for a long period allowing it to be damaged with the passage of time.

¶23In view of the above facts and circumstances of the case, the impugned orders is not sustainable in the eye of law and requires interference by this court.

¶24Accordingly, the present petition under Article 227 of the Constitution of India is allowed and the impugned order dated

12.07.2021 passed by the learned District Magistrate, Ayodhya in Case No. 00546/2021 (Nitin Singh Vs. State of U.P.) Computerized No. D202104230000546 under Section 5-A Uttar Pradesh Prevention of Cow Slaughter Act, 1955 as well as order dated 28.01.2021 passed by the learned Judicial Magistrate-Ist, Faizabad, in Crime No. 731/2020, under Sections 3/5/8 of Uttar Pradesh Prevention of Cow Slaughters Act and 11 of Prevention of Cruelty to Animals Act and Section 307, 504 pertaining to Police Station Inayat Nagar, District Faizabad/Ayodhya are set aside and reversed.

¶25The District Magistrate, Ayodhya is directed to release the vehicle in question forthwith in favour of the petitioner. The petitioner is directed to give a bank guarantee of Rs. 50,000/- before the Chief Judicial Magistrate, Ayodhya and file a bond that he shall be producing the vehicle as and when needed by the trial courts or the District Magistrate, Ayodhya, and he shall not make any changes nor any variation in the vehicle.

¶26No order as to costs.

¶27Let the copy of this order be sent to the court concerned for its compliance. Order Date :- 03.04.2024 Arvind (Shamim Ahmed,J.) High Court of Judicature at Allahabad, Lucknow Bench