J.K. Maheshwari, J.
1. Both these petitions are arising out of the orders passed by the Judicial Magistrate First Class, rejecting the applications under Section 451, Cr.P.C. refusing the interim custody of the vehicles used for an offence registered under Sections 4, 5,6 and 9 of the Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam, 2004 (hereinafter it referred "the Adhiniyam, 2004") and Section 11-D of the Prevention of Cruelty to Animals Act, 1960 while transporting the alleged cattle, cow-progeny and beef. The orders passed by the Revisional Court affirming such order has also been assailed invoking the jurisdiction under Section 482, Cr.P.C. by filing both these petitions. On perusal of the orders passed by the two Courts it is apparent, that in Misc. Criminal Case No. 4938/2013 interim custody of the vehicle bearing No. MP-09-GF-4269 was refused; while in Misc. Criminal Case No. 1102/2013 interim custody of vehicle bearing registration No. MP-41-GA-0685 was refused. The Courts below have rejected the application merely on account of receiving the initiation of pendency of confiscation proceeding before the District Magistrate while passing the orders impugned, which are under challenge in these petitions.
2. Learned Counsel representing petitioners contends that as per the Adhiniyam, 2004, the power of confiscation has been conferred to the District Magistrate under Section 11(5) in a manner prescribed by law, but the jurisdiction of the Criminal Court to grant interim custody of the property pending trial has not been ousted, however, the order passed by the Trial Court refusing interim custody of the vehicles affirmed by the Revisional Court is not in conformity to law. It is submitted that either in the Adhiniyam, 2004 or in the Rules after commencement of the confiscation proceeding or on receiving the intimation to the Court from the Confiscating Authority the jurisdiction of the Court is not ousted. In support reliance has been placed on a judgment of Hon'ble the Apex Court in the case of Sunderbhai Ambalal Desia Vs. State of Gujarat, reported in AIR 2003 SC 638, and the Full Bench judgment of this Court in the case of Madhukar Rao s/o Malik Rao Vs. State of M.P. and others, reported in 2000 (2) M.P.H.T. 445 (FB) : 2000 (1) MPLJ 289 and also the order passed in Moh. Amjad s/o Asgar Husain Vs. State of M.P. and others, M.Cr.C. No. 8765/2012, decided on 9-8-2012, by the Principal Seat of this Court wherein the vehicle was seized under the provisions of the Adhiniyam, 2004 was released. In view of the aforesaid, it is urged that the refusal of the interim custody by the two Courts below is illegal, however, the orders impugned may be set aside and the direction to release the vehicle on Supurdagi may be issued during the trial.
3. Per contra Shri Karnik, learned Government Advocate representing the State submits that as per Section 11(5) of the Adhiniyam, 2004, the District Magistrate is having power to confiscate the vehicle or cow progeny and beef in a manner so prescribed. The State Government has framed the Rules in exercise of the powers conferred under Section 17 of the Adhiniyam, which is known as Madhya Pradesh Govansh Vadh Pratishedh Niyam, 2012 (hereinafter referred to as "the Rules of 2012"). Rule 5 specifies confiscation, by the District Magistrate, of the vehicles, cow progeny and beef. Thus, when the proceedings of confiscation is pending before the District Magistrate recourse under Section 451, Cr.P.C. for grant of interim custody by the Court is not permissible. It is his submission that after confiscation the person aggrieved may file appeal as per Rule 6 to the Divisional Commissioner, therefore, two Courts below have rightly refused the interim custody by passing the orders impugned. At this stage, it is his contention that as per the M.P. Excise Act, 1915 when the vehicle in question has been involved in commission of the offence of the said Act, after initiation of the pendency of confiscation proceedings, by the Court power under Section 451, Cr.P.C. is arrested. However, applying the similar analogy in the present case, the prayer so made in these petitions may be refused, upholding the orders of Courts below.
4. After hearing the rival submissions advanced by the learned Counsel for the parties and to advert such contention the relevant provision of the Adhiniyam, 2004 is required to be seen. As per Section 11(5) of the Adhiniyam, 2004, it is clear that in case of any violation of Sections 4, 5, 6-A and 6-B, the Police Authorities is empowered to seize the vehicle or cow progeny and beef. The District Magistrate is having power to confiscate the same in a manner prescribed. Rules 5 and 6 of the Rules of 2012, which deals, confiscation, and appeal are relevant, however, it is reproduced as under:--
Rule 4. Confiscation by District Magistrate.--
In case of any violation of Sections 4, 5, 6, 6-A and 6-B, the police shall be empowered to seize the vehicles, cow progeny and beef as per the provisions of Section 100 of Criminal Procedure Code, 1973 (No. 2 of 1974) in following manner:--
(i) He shall take possession of the vehicle.
(ii) He shall intimate the Veterinary Department to take in custody of the cow-progeny and beef.
(iii) The beef of cow-progeny shall be disposed of by the Department by such procedure as he deems fit.
Rule 6. Manner of Appeal.-- Any person aggrieved by an order of confiscation under sub-section (5) of Section 11 of the Act, may prefer an appeal in writing to the Divisional Commissioner within thirty days of the date of knowledge of such order. Every appeal shall be made under sub-section (1) of Section 11-A of the Act.
5. On perusal of the aforesaid, it is apparent that in the aforesaid rules the procedure has been prescribed for confiscation and against the said order the appeal may be maintained before the Divisional Commissioner. After going through the provisions of the Adhiniyam, 2004 as well as the Rules of 2012 the bar of jurisdiction of the Criminal Court to grant interim custody of property as specified in Section 451 of Cr.P.C. is not there. Similarly, under the Prevention of Cruelty to Animals Act, 1960, there is no bar to grant interim custody. Therefore, it is to be held that the application under Section 451 of the Cr.P.C. filed by any person aggrieved, seeking interim custody of the vehicle, cow progeny and beef can be entertained by the Criminal Courts. Here to deal with the argument of learned Government Advocate that grant of interim custody on receiving intimation of confiscation is not proper; it is relevant to note that in Madhya Pradesh Excise Act, 1951, Section47-A specifies the confiscation of seized intoxicant article, equipments, utensils, characters and materials. Section 47-Dcreates a bar of jurisdiction of the Criminal Court under the circumstance when an intimation as per clause (a) of sub-section (3) of Section 47-A of the said Act has been sent to the Court by Collector then the power of Criminal Court to grant interim custody is ousted. But as stated herein above either in the Adhiniyam, 2004 or in the Rules of 2012 or under the Prevention of Cruelty to Animals Act, 1960 no such statutory bar over the Criminal Court to entertain the application under Section 451, Cr.P.C. is, there, however, the said argument is not supported by law, hence repealed.
6. In the sequel of the aforesaid fact and after going through the provisions of the Adhiniyam, 2004 and the Rules of 2012, it is clear that the District Magistrate is having power to confiscate the vehicle, cow progeny and beef in a manner prescribed. The rules specifies the procedure for confiscation and the after passing the order of confiscation an appeal shall lie to Divisional Commissioner. Until the order of confiscation is passed by the District Magistrate, the initiation of action for confiscation is not assailable by filing the appeal. Thus, after seizure of vehicle for the offences under the Adhiniyam, 2004 or the Prevention of Cruelty to Animals Act, 1960 during pendency of the trial or proceedings for confiscation if an application under Section 451, Cr.P.C. has been filed, the Criminal Courts are competent to pass the order of interim custody in accordance with law.
7. In the present case, looking to the observations made by the two Courts below, it is clear that the order of confiscation has not yet been passed by the District Magistrate and the proceedings are pending before him, however, refusal of the interim custody by the two Courts below is unsustainable in law. It is relevant to note here that even after passing an order of confiscation statutory bar to entertain the application for interim custody by the Criminal Court has not been specified in the Rules, but looking to the fact, against the order of confiscation passed by District Magistrate, the recourse of filing an appeal has been specified, in Rule 6 to the Divisional Commissioner, therefore, the Criminal Court may refrain to grant the interim custody of the vehicle, cow progeny and beef after passing the order of confiscation, however, applying the self imposed restrictions and taking note of the procedure prescribed after the order of confiscation, until and unless, the exceptional circumstances is prevalent, order passing the interim custody ought to be avoided by the Criminal Courts. After the confiscation order parties may be relegated to take recourse as permissible under the provisions of the Adhiniyam and the Rules.
8. It is to be noted here that keeping the custody of the vehicle, cow progeny and beef for a long time with the prosecution agency, is also not in the fair administration of the justice. Hon'ble the Apex Court in the case of Sunderbhai Ambalal Desia (supra), has emphasised the need for disposal of the property pending trial. It has been observed by the Apex Court that the Court should exercise such power expeditiously and judiciously because it would serve various purposes namely:--
(1) Owner of the article would not suffer because of its remaining unused or by its misappropriation;
(2) Court or the police would not be required to keep the article in safe custody;
(3) If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
(4) The jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
9. This Court in a case of Moh. Amjad (supra), has directed to release the vehicle, which was seized under Section 11(5) of the Adhiniyam, 2004. Thus, considering the legal position as enumerated in the judgment of Sunderbhai Ambalal (supra), and also looking to the fact that statutory bar to release the vehicle, cow progeny and beef is not within the Adhiniyam and on considering the existing need to release the interim custody of the property, may be directed by the Court in view of the foregoing observations. In the facts of this case, order of refusal of interim custody of the vehicles passed by the Judicial Magistrate, First Class and affirmed by the Revisional Court are set aside. In view of the discussions made hereinabove both these petitions filed by the petitioners are hereby allowed. The orders impugned passed by the Judicial Magistrate First Class and the Revisional Court are hereby set aside. It is directed that on furnishing the Supurdginama by the petitioners to the sum of Rs. 5,00,000/- each with one surety in the like amount to the satisfaction of Chief Judicial Magistrate concerned, the seized vehicles, bearing registration Nos. MP-09-GF-4269 and MP-41-GA-0685 be released subject to complying the following conditions:--
(i) That, applicant shall produce the same before the Trial Court as and when directed to do so.
(ii) That, in the meantime, they shall not alienate the vehicle or make use of vehicle for any unlawful purpose; and
(iii) That, they shall not carry out any change in the colour and outward appearance of the vehicle.
C.C. as per rules.