ABDUL VAHAB versus STATE OF MADHYA PRADESH on 4 March 2022

[2022] 3 S.C.R. 311

ABDUL VAHAB

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No. 340 of 2022)

MARCH 04, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Code of Criminal Procedure, 1973: s.482 – Jurisdiction ofHigh Court under s.482 for quashing of confiscation proceedingsunder s.11(5) of the M.P Prohibition of Cow Slaughter Act, 2004and Rule 5 of the M.P Govansh Vadh Pratishedh Rules, 2012 – Inthe instant case, appellant’s truck loaded with 17 cow progeny wasintercepted and the driver along with other accused was arrested –Case was registered under M.P Prohibition of Cow Slaughter Act,2004 and Prevention of Cruelty to Animals Act, 1960 – Vehicle wasseized – Trial court held that no offence was made out under theseActs – However, District Magistrate ordered confiscation ofappellant’s truck, despite the acquittal of appellant and otheraccused – Appellant filed s.482 petition challenging the confiscation– High Court upheld the order of confiscation with the observationthat separate proceedings before two Forums, one for prosecutionof the accused charged with the offence and the other forconfiscation of the vehicles/equipment used for the commission ofthe offence, were legally maintainable – High Court further heldthat jurisdiction under s.482 for quashing of the confiscationproceedings initiated under the 2004 Act was not available – Henceinstant appeal – Held: The 2004 Act does not have any non-obstanteclause which creates bar on jurisdiction of criminal courts – s.11(4)of the 2004 Act specifically applies the provisions Cr.P.C in realtionto search and seizure – Rules 5 and 6 of the MP Govansh VadhPratishedh Rules, 2012 empower the police to seize vehicle, thecow progeny and beef in case of violation of the 2004 Act, as pers.100 of the CrPC – Hence, there is no bar in exercising jurisdictionof Criminal Courts including High Court under s. 482 Cr.P.C –Appellant’s truck was confiscated on account of the criminalproceedings alone and therefore, under the applicable law, thevehicle cannot be withheld and then confiscated by the State, when

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312SUPREME COURT REPORTS

Athe original proceedings have culminated into acquittal –Confiscation of the appellant’s truck when he is acquitted in criminalprosecution amounts to arbitrary deprivation of his property andviolates the right under Art.300A – Constitution of India – Art.300A.

Constitution of India: Art.300A – Depriviation of enjoymentBof property – By reason of an order of confiscation, a person isdeprived of the enjoyment of his property – Art.300A of theConstitution provides that no person shall be deprived of hisproperty save by authority of law – Therefore, to deprive any personof their property, it is necessary for the State, inter-alia, to establishthat the property was illegally obtained or is part of the proceeds ofCcrime or the deprivation is warranted for public purpose or publicinterest.

M.P Prohibition of Cow Slaughter Act, 2004: s.13A –Confiscation order, justification of – Burden of proof – s.13A of the2004 Act, which shifts the burden of proof, is not applicable for theDconfiscation proceedings but for the process of prosecution – Byvirtue of s.13A of the 2004 Act, the burden on the State authority tolegally justify the confiscation order, cannot be shifted to the personfacing the confiscation proceeding.

Allowing the appeal, the CourtE

Conclusion

HELD: 1. Section 11(4) of the 2004 Act, specifically appliesthe provisions of CrPC, in relation to search and seizure andSection 11A(4) empowers the Appellate Authority to release thevehicle at interim stage itself. Rules 5 and 6 of the MP GovanshVadh Pratishedh Rules, 2012 empower the police to seize vehicle,Fthe 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. Asis discernible, the provisions of CrPC are specifically madeapplicable in the 2004 Act and the 2012 Rules. Therefore, anerroneous conclusion was drawn on absence of power, to entertainGthe petition of the vehicle owner. In the context of theproceedings initiated under the M.P. Prohibition of Cow SlaughterAct, 2004 and there being no bar to exercise of jurisdiction ofCriminal Courts including the High Court, under Section 482CrPC, the High Court was competent to entertain the petitionunder Section 482 CrPC. [Para 14][319-B-E]H

2. By reason of an order of confiscation, a person is deprivedof the enjoyment of his property. Article 300A of the Constitutionprovides that no person shall be deprived of his property save byauthority of law. Therefore, to deprive any person of their property,it is necessary for the State, inter-alia, to establish that the propertywas illegally obtained or is part of the proceeds of crime or thedeprivation is warranted for public purpose or public interest.[Para 17][320-E-G]

3. The submission was made by the State that the burdenof proof is on the truck owner in the process of confiscation.Section 13A of the 2004 Act, which shifts the burden of proof, isnot applicable for the confiscation proceedings but for the processof prosecution. By virtue of Section 13A of the 2004 Act, theburden on the State authority to legally justify the confiscationorder, cannot be shifted to the person facing the confiscationproceeding. The contention to the contrary of the State’s counsel,is accordingly rejected. In the present case, the appellant’s truckwas confiscated on account of the criminal proceedings alone andtherefore, under the applicable law, the vehicle cannot be withheldand then confiscated by the State, when the original proceedingshave culminated into acquittal. It is also not the projected casethat there is a likelihood that the appellant’s truck will be usedfor committing similar offence. [Paras 19, 20][321-E-G]

4. The objective of the 2004 Act is punitive and deterrentin nature. Section 11 of the 2004 Act and Rule 5 of M.P GovanshVadh Pratishedh Rules, 2012, allows for seizure and confiscationof vehicle, in case of violation of sections 4,5,6, 6A and 6B. Theconfiscation proceeding, before the District Magistrate, isdifferent from criminal prosecution. However, both may runsimultaneously, to facilitate speedy and effective adjudication withregard to confiscation of the means used for committing theoffence. The District Magistrate has the power to independentlyadjudicate cases of violations under Sections 4, 5, 6, 6A and 6Bof the 2004 Act and pass order of confiscation in case of violation.But in a case where the offender/accused are acquitted in theCriminal Prosecution, the judgment given in the Criminal Trial A

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Ashould be factored in by the District Magistrate while decidingthe confiscation proceeding. [Para 21][321-H; 322-A-C]

State of MP. v. Smt. KalloBai (2017) 14 SCC 502; Niteshs/o Dhannalal v. State of M.P. (2016) SCC Online MP7622; State of M.P v. Uday Singh (2020) 12 SCC 733 :B[2019] 6 SCR 154; State of M.P v. Madhukar Rao 2008(14) SCC 624 : [2008] 1 SCR 413; Madhukar Rao v.State of MP (2000) 1 MP LJ 289 (FB); State of W.B v.Sujit Kumar Rana (2004) 4 SCC 129[2004] 1 SCR 870– referred to.

Case Law Reference

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D[2004] 1 SCR 870

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.340 of 2022.

From the Judgment and Order dated 15.05.2019 of the High Courtof Madhya Pradesh Bench at Indore in Miscellaneous Criminal CaseENo.1813 of 2019.

Pulkit Tare, Aditya Shekhar, Baibhaw Gaulaut, Advs. for theAppellant.

Abhinav Shrivastava, Sunny Choudhary, Advs. for the Respondent.

FThe Judgment of the Court was delivered by HRISHIKESH ROY, J.

1. Heard Mr. Pulkit Tare, learned counsel appearing for theappellant. Also heard Mr. Abhinav Shrivastava learned counsel appearingfor the State of Madhya Pradesh.G

2. Leave granted.

3. The primary challenge in this appeal is to the Confiscation Orderdated 09.08.2017 for the appellant’s truck (bearing No.MP/09/GF/2159),passed by the District Magistrate, Agar Malwa, purporting to exerciseHpowers 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 theM.P Govansh Vadh Pratishedh Rules, 2012. The Confiscation orderwas affirmed on 22.9.2018 by the Court of Additional Commissioner,Ujjain. The Revision Petition challenging the confiscation order wasdismissed by the 3[rd ]Additional Sessions Judge, Ujjain in the CriminalRevision No.211/2018. The Truck owner preferred a Petition undersection 482 CrPC before the High Court of Madhya Pradesh, wherein,the High Court affirmed the orders passed by the forums below, whileholding that no error has been committed by the District Magistrate inordering the truck’s confiscation, even after acquittal of the accusedpersons from the criminal case.

4. The necessary facts for the present appeal are that theappellant’s truck, loaded with 17 cow progeny, was intercepted and thedriver of the vehicle, Surendra and one other person, Nazir, sitting in thetruck were arrested. Thereafter, Crime No.102/2013 was registered atPolice Station Kannad, District Agar Malwa for offences under Sections4 and 9 of the 2004 Act read with Section 11 (d) of the Prevention ofCruelty to Animals Act, 1960 (for short ‘the 1960 Act’). The vehiclewas seized and the accused persons, including the truck owner, werecharge 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 occurrenceaccused with motive of slaughter of 17 bulls or with knowledgethat the bulls will be slaughtered, transported or aided intransportation or surrendered of the same for slaughter of theaforesaid bulls outside the territory of M.P. to Nasik?”

6. Under the judgment dated 28.11.2016 (Annexure P-1), onevaluation of evidence, the learned Judge concluded that the prosecutionhad failed to establish the primary ingredient of the charge, that the cowprogeny was being transported “for the purpose of its slaughter” andas such no offence was made out under the 2004 Act. Thus, theaforequoted question no.1, as formulated by the Court, was specificallyheld to be not proved. All four accused were accordingly acquitted ofcharges under the 1960 Act and also the charges under Section 4 readwith Section 9 of the 2004 Act. The appellant, who was additionallycharged under different sections of the Motor Vehicles Act, was alsoacquitted of those charges.

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A7. Subsequently, however, the District Magistrate on 09.08.2017ordered confiscation of the appellant’s truck, for violation of section 6 ofthe 2004 Act despite being apprised of the acquittal of the accused personsby the Trial Court. In the acquittal order, it was pertinently recorded thatthe prosecution witnesses including the Investigating Officer (IO) andthe main witnesses PW1 and PW2 had not testified on involvement ofBthe accused with the act of intended slaughtering of cattle. The veterinarydoctor (PW4) commented tellingly that the animals were healthy and fitfor agricultural purpose. The Trial Court also observed that theprosecution’s case of proposed slaughter was not at all supported by themedical evidence on record.C

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8. Assailing the order of confiscation of the truck and theconsequential rejection of the challenge to the District Magistrate’s order,the learned counsel for the appellant, Mr. Pulkit Tare makes hissubmissions. He contends that confiscation of the vehicle is whollyunjustified when all four accused were acquitted of the criminal chargesDin the related proceedings. The appellant’s counsel refers to the decisionof the Coordinate Bench of the Madhya Pradesh High Court in Niteshs/o Dhannalal vs. State of M.P.[1 ]wherein, in circumstances of confiscationof a vehicle, under the relevant provisions of the 2004 Act, the Courtinterpreted various provisions of the Act to hold that, unless the criminaloffence is committed, seizure of the vehicle which was involved in theEincident, would be unwarranted.

9. On the other hand, Mr. Abhinav Shrivastava, learned counselappearing for the State of Madhya Pradesh refers to various judgmentsto contend that proceedings towards confiscation of the offending vehicleand also criminal prosecution against the accused are parallellyFmaintainable. The State’s counsel then refers to Section 13A of the 2004Act to point out that the burden of proof is on the accused when he isbeing prosecuted under the Act. He further refers to the evidence of theVeterinary Assistant Surgeon, Arvind Mahajan (PW-4) who examinedthe animals to contend that there is adequate justification for confiscationGof the truck, on the basis of the evidence of PW-4.

10. The High Court upheld the order of confiscation by the DistrictMagistrate with the observation that separate proceedings before twoForums, one for prosecution of the accused charged with the offenceand the other for confiscation of the vehicles/equipment used for the H1 (2016) SCC Online MP 7622

commission of the offence, are legally maintainable. According to theHigh Court, the jurisdiction under Section 482 of the Code of CriminalProcedure for quashing of the confiscation proceedings initiated underthe 2004 Act, is not available to the Court.

11.1 The impugned judgment , relied on a line of cases under theIndian Forest Act, 1927, particularly, State of MP. Vs Smt. KalloBai[2]wherein, it was clarified that confiscatory proceedings are independentof main criminal proceedings and its main purpose is to provide a deterrentmechanism and to stop further misuse of the subject vehicle.

11.2 In the same case, in the context of the confiscationproceedings under the Indian Forest Act, 1927 and the local legislationi.e.Madhya Pradesh Van Upaj (Vyaapar Viniyam) Adhiniyam, 1969,thisCourt observed that under Section 15-C of the Adhiniyam,ajurisdictional bar on Courts and Tribunals are provided. Commenting onthe power of the Authority to order confiscation under Section 15 of the1969 Adhiniyam, it was found; “that Section 15 gives independent power to the authorityconcerned to confiscate the articles, as mentioned thereunder,even before the guilt is completely established. This power canbe exercised by the officer concerned if he is satisfied that thesaid objects were utilized during the commission of a forestoffence.”

11.3 According to the scheme of the legislation, it was also observedin Kallo Bai (supra) that the jurisdiction of the criminal courts, regardingdisposal of property, are made subject to the jurisdiction of the AuthorizedOfficer under the Act.

12. The learned Judge in the impugned judgment, also placedreliance on State of M.P Vs. Uday Singh[3], wherein it was held that theHigh Court erred in directing the Magistrate to release the seized vehiclein exercise of its inherent jurisdiction under Section 482 CrPC. Since theconfiscation proceedings were initiated under Section 52(3) of the ForestAct, 1927 (as substituted by the MP Act 25 of 1983), further procedurewas governed by the relevant provisions of the said act (and the M.Pamendments to the Forest Act) and the jurisdiction of the criminal courtsstood excluded. Further, the non-obstante clause in Section 52-C(1) gave 2 (2017) 14 SCC 502

3 (2020) 12 SCC 733

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Aoverriding effect to the legislation. Resultantly, the powers vested in themagistrate under the CrPC were taken away. The relevant passage inthe relied upon judgment reads as under:- 29.3. Section 52-C stipulates that on the receipt of an intimationby the Magistrate under sub-section (4) of Section 52, no court,Btribunal or authority, other than an authorised officer, an appellateauthority 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 whichconfiscation proceedings have been initiated. Sub-section (1) ofSection 52-C has a non obstante provision which operatesCnotwithstanding anything to the contrary contained in the ForestAct, 1927 or in any other law for the time being in force. The onlysaving is in respect of an officer duly empowered by the StateGovernment for directing the immediate release of a propertyseized under Section 52, as provided in Section 61. Hence, uponDthe receipt of an intimation by the Magistrate of the initiation ofconfiscation proceedings under sub-section (4)(a) of Section 52,the bar of jurisdiction under sub-section (1) of Section 52-C isclearly attracted 29.4. The scheme contained in the amendments enacted to theEForest Act, 1927 in relation to the State of Madhya Pradesh, makesit abundantly clear that the direction which was issued by theHigh Court in the present case, in a petition under Section 482CrPC, to the Magistrate to direct the interim release of the vehicle,which had been seized, was contrary to law. The jurisdiction underSection 451 CrPC was not available to the Magistrate, once theFauthorized officer initiated confiscation proceedings.

13. The above would show that the powers of seizure, confiscationand forfeiture of produce illegally removed from forest is vestedexclusively in Authorized Officers. As such, once the confiscationproceedings are initiated under the provisions of the aforenoted legislation,Gthe jurisdiction of criminal courts is ousted, since it is the authorizedofficer who is vested with power to pass orders for interim custody ofvehicles and the Magistrate is kept away.

14. The aforenoted cases were cited in the impugned judgment tohold that the Court did not have jurisdiction under Section 482, CrPC toHgrant relief to the appellant. This in our view is unacceptable since the

applicable provisions in the aforementioned cases are not pari materia tothe provisions of the 2004 Act. Most significantly, the 2004 Act withwhich we are concerned here, does not have any non obstante clause asin the Section 52-C(1) of the Forest Act,1927 (as amended in relation tothe State of Madhya Pradesh by M.P Act 25 of 1983) or Section 15-Cof the Madhya Pradesh Van Upaj (Vyaapar Viniyam) Adhiniyam,1969 which create bar on jurisdiction of the criminal courts. Returningto the present matter and the law that was invoked, we may gainfullynotice that Section 11(4) of the 2004 Act, specifically applies the provisionsof CrPC, in relation to search and seizure and Section 11 A(4) empowersthe Appellate Authority to release the vehicle at interim stage itself. TheRules 5 and 6 of the MP Govansh Vadh Pratishedh Rules, 2012empower the police to seize vehicle, the cow progeny and beef in caseof violation of Sections 4, 5, 6,6A and 6B of the 2004 Act, as per Section100 of the CrPC. As is discernible, the provisions of CrPC are specificallymade applicable in the 2004 Act and the 2012 Rules. Therefore, anerroneous conclusion was drawn on absence of power, to entertain thepetition of the vehicle owner. In the context of the proceedings initiatedunder the M.P. Prohibition of Cow Slaughter Act, 2004 and therebeing no bar to exercise of jurisdiction of Criminal Courts including theHigh Court, under Section 482 CrPC, the High Court in our opinion wascompetent to entertain the petition under Section 482 CrPC.

15. We find support for the above view, from the ratio in the Stateof M.P Vs. Madhukar Rao[4], wherein this Court while adverting to theprovisions of another legislation i.e. the Wild Life (Protection) Act, 1972opined that the power of the Magistrate to order interim release ofconfiscated vehicle under Section 451 CrPC, is not affected. The Courtreasoned that withdrawal of the power of interim release conferred onthe Authorities under Section 50(2), cannot be construed to mean a baron the powers of the Magistrate under Section 451 of the Code ofCriminal Procedure. It was next noted that a clear intention to the contrarycan 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 withaccording to law (and not according to the provisions of the Act) .

16. Pertinently, State of M.P Vs. Madhukar Rao[5 ]affirmed thedecision of the High Court in Madhukar Rao v. State of MP[6],wherein4 2008 (14) SCC 6245 2008 (14) SCC 6246 (2000) 1 MP LJ 289 (FB)

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AJustice D.M Dharmadhikari, writing for the Full Bench, opined that theprovision 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 beingused for the commission of an offence, runs afoul of the Constitutionalprovisions. It is succinctly observed in Para 18,B

“18… If the argument on behalf of the State is accepted a propertyseized on accusation would become the property of the State andcan never be released even on the compounding of the offence.The provisions of Clause (d) of section 39 have to be reasonablyand harmoniously construed with other provisions of the Act andCthe Code which together provide a detailed procedure for the trialof the offences. If, as contended on behalf of the State, seizure ofproperty merely on accusation would make the property to be ofthe Government, it would have the result of depriving an accusedof his property without proof of his guilt. On such interpretationDClause (d) of section 39(1) of the Act would suffer from the viceof unconstitutionality. The interpretation placed by the State wouldmean that a specified officer under the Act merely by seizure ofproperty of an accused would deprive him of his property whichhe might be using for his trade, profession or occupation. Thiswould be serious encroachment on the fundamental right of aEcitizen under Article 19(1)(g) of the Constitution to carry on histrade, occupation or business.”

17. By reason of an order of confiscation, a person is deprived ofthe enjoyment of his property. Article 300A of the Constitution providesthat no person shall be deprived of his property save by authority of law.FTherefore, to deprive any person of their property, it is necessary for theState, inter-alia, to establish that the property was illegally obtained or ispart of the proceeds of crime or the deprivation is warranted for publicpurpose or public interest.

18. At this stage, we may usefully refer to this Court’s opinion inGState of W.B vs. Sujit Kumar Rana[7]. Here it was emphasized on theneed to maintain balance between statutes framed in public interest suchas the Forest Act, 1927 (and the relevant insertions under W.B Act 22 of1988) 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 forpassing an order of confiscation and an order of confiscation should notbe passed automatically. The relevant passage is reproduced below:

“26. An order of confiscation of forest produce in a proceedingunder Section 59-A of the Act would not amount either to penaltyor punishment. Such an order, however, can be passed only in theevent a valid seizure is made and the authorized officer satisfieshimself as regards ownership of the forest produce in the State asalso commission of a forest offence. An order of confiscation isnot to be passed automatically, and in terms of sub-section (3) ofSection 59-A a discretionary power has been conferred upon theauthorized officer in relation to a vehicle. Apart from the ingredientswhich are required to be proved in terms of sub-section (3) ofSection 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 vehicleand furthermore in terms of sub-section (2) thereof an opportunityhas to be granted to the owner of the vehicle so as to enable himto show that the same has been used in carrying forest producewithout his knowledge or connivance and by necessary implicationprecautions therefor have been taken.”

19. Insofar as the submission of the State Counsel that the burdenof proof is on the truck owner in the process of confiscation, we mustobserve that Section 13A of the 2004 Act, which shifts the burden ofproof, is not applicable for the confiscation proceedings but for the processof prosecution. By virtue of Section 13A of the 2004 Act, the burden onthe State authority to legally justify the confiscation order, cannot beshifted to the person facing the confiscation proceeding. The contentionto the contrary of the State’s counsel, is accordingly rejected.

20. In the present case, the appellant’s truck was confiscated onaccount of the criminal proceedings alone and therefore, under theapplicable law, the vehicle cannot be withheld and then confiscated bythe State, when the original proceedings have culminated into acquittal.It is also not the projected case that there is a likelihood that the appellant’struck will be used for committing similar offence.

21. It should be noted that the objective of the 2004 Act is punitiveand deterrent in nature. Section 11 of the 2004 Act and Rule 5 of M.P

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AGovansh Vadh Pratishedh Rules, 2012, allows for seizure andconfiscation of vehicle, in case of violation of sections 4,5,6, 6A and 6B.The confiscation proceeding, before the District Magistrate, is differentfrom criminal prosecution. However, both may run simultaneously, tofacilitate speedy and effective adjudication with regard to confiscationof the means used for committing the offence. The District MagistrateBhas the power to independently adjudicate cases of violations underSections 4, 5, 6, 6A and 6B of the 2004 Act and pass order of confiscationin case of violation. But in a case where the offender/accused areacquitted in the Criminal Prosecution, the judgment given in the CriminalTrial should be factored in by the District Magistrate while deciding theCconfiscation proceeding. In the present case, the order of acquittal waspassed as evidence was missing to connect the accused with the charges.The confiscation of the appellant’s truck when he is acquitted in theCriminal prosecution, amounts to arbitrary deprivation of his propertyand violates the right guaranteed to each person under Article 300A.Therefore, the circumstances here are compelling to conclude that theDDistrict Magistrate’s order of Confiscation (ignoring the Trial Court’sjudgment of acquittal), is not only arbitrary but also inconsistent with thelegal requirements.22. In view of the foregoing, the confiscation order of the DistrictMagistrate cannot be sustained and it is declared so accordingly.EConsequently, the High Court’s decision to the contrary is set aside. Theappeal stands allowed with this order without any order on cost.

Devika Gujral

Appeal allowed

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