Abdul Vahab vs The State Of Madhya Pradesh on 4 March, 2022


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Supreme Court of India

Abdul Vahab vs The State Of Madhya Pradesh on 4 March, 2022

Author: Hrishikesh Roy

Bench: K.M. Joseph, Hrishikesh Roy

                                                                                      [REPORTABLE]

                                    IN THE SUPREME COURT OF INDIA
                                   CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO.340 OF 2022
                                   (@ SLP (Crl.) No. 8964 OF 2019)

          ABDUL VAHAB                                                  APPELLANT(S)

                                                 VERSUS


          STATE OF MADHYA PRADESH                                      RESPONDENT(S)



                                            J U D G M E N T

Hrishikesh Roy, J.

1. Heard Mr. Pulkit Tare, learned counsel appearing

for the appellant. Also heard Mr. Abhinav Shrivastava

learned counsel appearing for the State of Madhya

Pradesh.

2. Leave granted.

3.
Signature Not Verified The primary challenge in this appeal is to the
Digitally signed by
Nidhi Ahuja
Date: 2022.03.04

Confiscation Order dated 09.08.2017 for the appellant’s
16:51:08 IST
Reason:

truck (bearing No.MP/09/GF/2159), passed by the

1
District Magistrate, Agar Malwa, purporting to exercise

powers under Section 11(5) of the M.P. Prohibition of

Cow Slaughter Act, 2004 (hereinafter referred to as,

‘the 2004 Act’) and Rule 5 of the M.P Govansh Vadh

Pratishedh Rules, 2012. The Confiscation order was

affirmed on 22.9.2018 by the Court of Additional

Commissioner, Ujjain. The Revision Petition challenging

the confiscation order was dismissed by the 3rd

Additional Sessions Judge, Ujjain in the Criminal

Revision No.211/2018. The Truck owner preferred a

Petition under section 482 CrPC before the High Court

of Madhya Pradesh, wherein, the High Court affirmed the

orders passed by the forums below, while holding that

no error has been committed by the District Magistrate

in ordering the truck’s confiscation, even after

acquittal of the accused persons from the criminal

case.

4. The necessary facts for the present appeal are that

the appellant’s truck, loaded with 17 cow progeny, was

intercepted and the driver of the vehicle, Surendra and

one other person, Nazir, sitting in the truck were
2
arrested. Thereafter, Crime No.102/2013 was registered

at Police Station Kannad, District Agar Malwa for

offences under Sections 4 and 9 of the 2004 Act read

with Section 11 (d) of the Prevention of Cruelty to

Animals Act, 1960 (for short ‘the 1960 Act’). The

vehicle was seized and the accused persons, including

the truck owner, were charge sheeted for the

aforementioned offences.

5. The Judicial Magistrate, First Class, Agar Malwa,

formulated, inter alia, the following question for

consideration as the trial Court:

“1.Whether on the above date, time and place of
occurrence accused with motive of slaughter of
17 bulls or with knowledge that the bulls will
be slaughtered, transported or aided in
transportation or surrendered of the same for
slaughter of the aforesaid bulls outside the
territory of M.P. to Nasik?”

6. Under the judgment dated 28.11.2016 (Annexure P-1),

on evaluation of evidence, the learned Judge concluded

that the prosecution had failed to establish the

primary ingredient of the charge, that the cow progeny

3
was being transported “for the purpose of its

slaughter” and as such no offence was made out under

the 2004 Act. Thus, the aforequoted question no.1, as

formulated by the Court, was specifically held to be

not proved. All four accused were accordingly acquitted

of charges under the 1960 Act and also the charges

under Section 4 read with Section 9 of the 2004 Act.

The appellant, who was additionally charged under

different sections of the Motor Vehicles Act, was also

acquitted of those charges.

7. Subsequently, however, the District Magistrate on

09.08.2017 ordered confiscation of the appellant’s

truck, for violation of section 6 of the 2004 Act

despite being apprised of the acquittal of the accused

persons by the Trial Court. In the acquittal order, it

was pertinently recorded that the prosecution witnesses

including the Investigating Officer (IO) and the main

witnesses PW1 and PW2 had not testified on involvement

of the accused with the act of intended slaughtering of

cattle. The veterinary doctor (PW4) commented tellingly

that the animals were healthy and fit for agricultural
4
purpose. The Trial Court also observed that the

prosecution’s case of proposed slaughter was not at all

supported by the medical evidence on record.

8. Assailing the order of confiscation of the truck

and the consequential rejection of the challenge to the

District Magistrate’s order, the learned counsel for

the appellant, Mr. Pulkit Tare makes his submissions.

He contends that confiscation of the vehicle is wholly

unjustified when all four accused were acquitted of the

criminal charges in the related proceedings. The

appellant’s counsel refers to the decision of the

Coordinate Bench of the Madhya Pradesh High Court in

Nitesh s/o Dhannalal vs. State of M.P.1 wherein, in

circumstances of confiscation of a vehicle, under the

relevant provisions of the 2004 Act, the Court

interpreted various provisions of the Act to hold that,

unless the criminal offence is committed, seizure of

the vehicle which was involved in the incident, would

be unwarranted.

1 (2016) SCC Online MP 7622
5

9. On the other hand, Mr. Abhinav Shrivastava, learned

counsel appearing for the State of Madhya Pradesh

refers to various judgments to contend that proceedings

towards confiscation of the offending vehicle and also

criminal prosecution against the accused are parallelly

maintainable. The State’s counsel then refers to

Section 13A of the 2004 Act to point out that the

burden of proof is on the accused when he is being

prosecuted under the Act. He further refers to the

evidence of the Veterinary Assistant Surgeon, Arvind

Mahajan (PW-4) who examined the animals to contend that

there is adequate justification for confiscation of the

truck, on the basis of the evidence of PW-4.

10. The High Court upheld the order of confiscation by

the District Magistrate with the observation that

separate proceedings before two Forums, one for

prosecution of the accused charged with the offence and

the other for confiscation of the vehicles/equipment

used for the commission of the offence, are legally

maintainable. According to the High Court, the

jurisdiction under Section 482 of the Code of Criminal
6
Procedure for quashing of the confiscation proceedings

initiated under the 2004 Act, is not available to the

Court.

11.1 The impugned judgment , relied on a line of

cases under the Indian Forest Act, 1927, particularly,

State of MP. Vs Smt. KalloBai2 wherein, it was clarified

that confiscatory proceedings are independent of main

criminal proceedings and its main purpose is to provide

a deterrent mechanism and to stop further misuse of the

subject vehicle.

11.2 In the same case, in the context of the

confiscation proceedings under the Indian Forest Act,

1927 and the local legislation i.e. Madhya Pradesh Van

Upaj (Vyaapar Viniyam) Adhiniyam, 1969, this Court

observed that under Section 15-C of the Adhiniyam, a

jurisdictional bar on Courts and Tribunals are

provided. Commenting on the power of the Authority to

order confiscation under Section 15 of the 1969

Adhiniyam, it was found;

2(2017) 14 SCC 502
7
“that Section 15 gives independent power to
the authority concerned to confiscate the
articles, as mentioned thereunder, even
before the guilt is completely established.
This power can be exercised by the officer
concerned if he is satisfied that the said
objects were utilized during the commission
of a forest offence.”

11.3 According to the scheme of the legislation, it

was also observed in Kallo Bai (supra) that the

jurisdiction of the criminal courts, regarding disposal

of property, are made subject to the jurisdiction of

the Authorized Officer under the Act.

12. The learned Judge in the impugned judgment, also

placed reliance on State of M.P Vs. Uday Singh3, wherein

it was held that the High Court erred in directing the

Magistrate to release the seized vehicle in exercise of

its inherent jurisdiction under Section 482 CrPC. Since

the confiscation proceedings were initiated under

Section 52(3) of the Forest Act, 1927 (as substituted

by the MP Act 25 of 1983), further procedure was

governed by the relevant provisions of the said act

(and the M.P amendments to the Forest Act) and the

jurisdiction of the criminal courts stood excluded.
3 (2020) 12 SCC 733
8
Further, the non-obstante clause in Section 52-C(1)

gave overriding effect to the legislation. Resultantly,

the powers vested in the magistrate under the CrPC were

taken away. The relevant passage in the relied upon

judgment reads as under:-

29.3. Section 52-C stipulates that on the receipt of an
intimation by the Magistrate under sub-section (4) of
Section 52, no court, tribunal or authority, other than
an authorised officer, an appellate authority or Court
of Session (under Sections 52, 52-A and 52-B) shall
have jurisdiction to pass orders with regard to
possession, delivery, disposal or distribution of the
property in regard to which confiscation proceedings
have been initiated. Sub-section (1) of Section 52-C
has a non obstante provision which operates
notwithstanding anything to the contrary contained in
the Forest Act, 1927 or in any other law for the time
being in force. The only saving is in respect of an
officer duly empowered by the State Government for
directing the immediate release of a property seized
under Section 52, as provided in Section 61. Hence,
upon the receipt of an intimation by the Magistrate of
the initiation of confiscation proceedings under sub-
section (4)(a) of Section 52, the bar of jurisdiction
under sub-section (1) of Section 52-C is clearly
attracted

29.4. The scheme contained in the amendments enacted to
the Forest Act, 1927 in relation to the State of Madhya
Pradesh, makes it abundantly clear that the direction
which was issued by the High Court in the present case,
in a petition under Section 482 CrPC, to the Magistrate
to direct the interim release of the vehicle, which had
been seized, was contrary to law. The jurisdiction
under Section 451 CrPC was not available to the
Magistrate, once the authorized officer initiated
confiscation proceedings.

9

13. The above would show that the powers of seizure,

confiscation and forfeiture of produce illegally

removed from forest is vested exclusively in Authorized

Officers. As such, once the confiscation proceedings

are initiated under the provisions of the aforenoted

legislation, the jurisdiction of criminal courts is

ousted, since it is the authorized officer who is

vested with power to pass orders for interim custody of

vehicles and the Magistrate is kept away.

14. The aforenoted cases were cited in the impugned

judgment to hold that the Court did not have

jurisdiction under Section 482, CrPC to grant relief to

the appellant. This in our view is unacceptable since

the applicable provisions in the aforementioned cases

are not pari materia to the provisions of the 2004 Act.

Most significantly, the 2004 Act with which we are

concerned here, does not have any non obstante clause

as in the Section 52-C(1) of the Forest Act,1927 (as

amended in relation to the State of Madhya Pradesh by

M.P Act 25 of 1983) or Section 15-C of the Madhya

Pradesh Van Upaj (Vyaapar Viniyam) Adhiniyam, 1969
10
which create bar on jurisdiction of the criminal

courts. Returning to the present matter and the law

that was invoked, we may gainfully notice that Section

11(4) of the 2004 Act, specifically applies the

provisions of CrPC, in relation to search and seizure

and Section 11 A(4) empowers the Appellate Authority to

release the vehicle at interim stage itself. The Rules

5 and 6 of the MP Govansh Vadh Pratishedh Rules, 2012

empower the police to seize vehicle, the cow progeny

and beef in case of violation of Sections 4, 5, 6,6A

and 6B of the 2004 Act, as per Section 100 of the CrPC.

As is discernible, the provisions of CrPC are

specifically made applicable in the 2004 Act and the

2012 Rules. Therefore, an erroneous conclusion was

drawn on absence of power, to entertain the petition of

the vehicle owner. In the context of the proceedings

initiated under the M.P. Prohibition of Cow Slaughter

Act, 2004 and there being no bar to exercise of

jurisdiction of Criminal Courts including the High

Court, under Section 482 CrPC, the High Court in our

11
opinion was competent to entertain the petition under

Section 482 CrPC.

15. We find support for the above view, from the ratio

in the State of M.P Vs. Madhukar Rao4, wherein this

Court while adverting to the provisions of another

legislation i.e. the Wild Life (Protection) Act, 1972

opined that the power of the Magistrate to order

interim release of confiscated vehicle under Section

451 CrPC, is not affected. The Court reasoned that

withdrawal of the power of interim release conferred on

the Authorities under Section 50(2), cannot be

construed to mean a bar on the powers of the Magistrate

under Section 451 of the Code of Criminal Procedure. It

was next noted that a clear intention to the contrary

can be found in the Act in Section 50(4) under which,

any person detained, or things seized shall be taken

before a Magistrate to be dealt with according to law

(and not according to the provisions of the Act) .

4 2008 (14) SCC 624
12

16. Pertinently, State of M.P Vs. Madhukar Rao5 affirmed

the decision of the High Court in Madhukar Rao v. State

of MP6, wherein Justice D.M Dharmadhikari, writing for

the Full Bench, opined that the provision of Section

39(1)(d) of the Wildlife (Protection) Act, 1972,

providing for absolute vesting of seized property with

State Government, without a finding by the Competent

Court that the property was being used for the

commission of an offence, runs afoul of the

Constitutional provisions. It is succinctly observed in

Para 18,

“18… If the argument on behalf of the State is accepted
a property seized on accusation would become the
property of the State and can never be released even on
the compounding of the offence. The provisions of Clause

(d) of section 39 have to be reasonably and harmoniously
construed with other provisions of the Act and the Code
which together provide a detailed procedure for the
trial of the offences. If, as contended on behalf of the
State, seizure of property merely on accusation would
make the property to be of the Government, it would have
the result of depriving an accused of his property
without proof of his guilt. On such interpretation
Clause (d) of section 39(1) of the Act would suffer from
the vice of unconstitutionality. The interpretation
placed by the State would mean that a specified officer
under the Act merely by seizure of property of an
accused would deprive him of his property which he might
be using for his trade, profession or occupation. This
would be serious encroachment on the fundamental right
of a citizen under Article 19(1)(g) of the Constitution
to carry on his trade, occupation or business.”

5 2008 (14) SCC 624
6 (2000) 1 MP LJ 289 (FB)
13

17. By reason of an order of confiscation, a person is

deprived of the enjoyment of his property. Article 300A

of the Constitution provides that no person shall be

deprived of his property save by authority of law.

Therefore, to deprive any person of their property, it

is necessary for the State, inter-alia, to establish

that the property was illegally obtained or is part of

the proceeds of crime or the deprivation is warranted

for public purpose or public interest.

18. At this stage, we may usefully refer to this

Court’s opinion in State of W.B vs. Sujit Kumar Rana7.

Here it was emphasized on the need to maintain balance

between statutes framed in public interest such as the

Forest Act, 1927 (and the relevant insertions under W.B

Act 22 of 1988) and the consequential proceedings,

depriving a person of his property, arising therefrom.

It was accordingly observed that “commission of an

offence” is one of the requisite ingredients for

passing an order of confiscation and an order of

7 (2004) 4 SCC 129
14
confiscation should not be passed automatically. The

relevant passage is reproduced below:

“26. An order of confiscation of forest produce in a
proceeding under Section 59-A of the Act would not amount
either to penalty or punishment. Such an order, however, can
be passed only in the event a valid seizure is made and the
authorized officer satisfies himself as regards ownership of
the forest produce in the State as also commission of a
forest offence. An order of confiscation is not to be passed
automatically, and in terms of sub-section (3) of Section
59-A
a discretionary power has been conferred upon the
authorized officer in relation to a vehicle. Apart from the
ingredients which are required to be proved in terms of sub-
section (3) of Section 59-A by reason of the proviso
appended to Section 59-B, a notice is also required to be
issued to the owner of the vehicle and furthermore in terms
of sub-section (2) thereof an opportunity has to be granted
to the owner of the vehicle so as to enable him to show that
the same has been used in carrying forest produce without
his knowledge or connivance and by necessary implication
precautions therefor have been taken.”

19. Insofar as the submission of the State Counsel that

the burden of proof is on the truck owner in the

process of confiscation, we must observe that Section

13A of the 2004 Act, which shifts the burden of proof,

is not applicable for the confiscation proceedings but

for the process of prosecution. By virtue of Section

13A of the 2004 Act, the burden on the State authority

to legally justify the confiscation order, cannot be

shifted to the person facing the confiscation

15
proceeding. The contention to the contrary of the

State’s counsel, is accordingly rejected.

20. In the present case, the appellant’s truck was

confiscated on account of the criminal proceedings

alone and therefore, under the applicable law, the

vehicle cannot be withheld and then confiscated by

the State, when the original proceedings have

culminated into acquittal. It is also not the projected

case that there is a likelihood that the appellant’s

truck will be used for committing similar offence.

21. It should be noted that the objective of the 2004

Act is punitive and deterrent in nature. Section 11 of

the 2004 Act and Rule 5 of M.P Govansh Vadh Pratishedh

Rules, 2012, allows for seizure and confiscation of

vehicle, in case of violation of sections 4,5,6, 6A and

6B. The confiscation proceeding, before the District

Magistrate, is different from criminal prosecution.

However, both may run simultaneously, to facilitate

speedy and effective adjudication with regard to

confiscation of the means used for committing the
16
offence. The District Magistrate has the power to

independently adjudicate cases of violations under

Sections 4, 5, 6, 6A and 6B of the 2004 Act and pass

order of confiscation in case of violation. But in a

case where the offender/accused are acquitted in the

Criminal Prosecution, the judgment given in the

Criminal Trial should be factored in by the District

Magistrate while deciding the confiscation proceeding.

In the present case, the order of acquittal was passed

as evidence was missing to connect the accused with the

charges. The confiscation of the appellant’s truck when

he is acquitted in the Criminal prosecution, amounts to

arbitrary deprivation of his property and violates the

right guaranteed to each person under Article 300A.

Therefore, the circumstances here are compelling to

conclude that the District Magistrate’s order of

Confiscation (ignoring the Trial Court’s judgment of

acquittal), is not only arbitrary but also inconsistent

with the legal requirements.

17

22. In view of the foregoing, the confiscation order of

the District Magistrate cannot be sustained and it is

declared so accordingly. Consequently, the High Court’s

decision to the contrary is set aside. The appeal

stands allowed with this order without any order on

cost.

……………………………………………………J.

[K.M. JOSEPH]

……………………………………………………J.

[HRISHIKESH ROY]
NEW DELHI
MARCH 04, 2022

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