Gujarat HC set aisde the 10.09.2020 passed by the Judicial Magistrate First Class, Songadh,
District Tapi, and confirmed by the Principal District & Sessions Judge, Tapi at Vyara vide order dated .07.11.2020 in Criminal Revision Application No.26 of 2020 was quashed and set aside. The Respondent no.2-Panjarapol, Kamrej was directed to release the muddamal livestock seized in connection with the FIR in question, in favour of the petitioner.
Petitioner that he purchased Buffaloes from one Asifbhai Rajjakbhai Multani, who is resident of Vasavad, Gondal, for his business use as the petitioner has business of animal husbandary as well as selling milk. During the transportation of animals, the police seized the Eicher Tempo bearing registration no. GJ-33-T-1256 in connection with the offence registered as CR. No.11824004200789 of 2020 before Songadh Police Station, Tapi and animals were also seized by police and sent to the Panjarapol, Kamrej.
The petitioner preferred an application under Section 451 of the Cr.P.C. before the Judicial Magistrate First Class, Songadh, District Tapi to get custody of animals, which came to be rejected and being aggrieved by the same, the petitioner challenged the order before the Sessions Court by way of filing Criminal Revision Application No.26 of 2020, which came to be rejected confirming the order of Judicial Magistrate First Class, Songadh, District Tapi. Hence, the petitioner has challenged both the orders by way of filing the present petition before this Court.
Learned advocate Mr.Rikinkumar Patel appearing for the petitioner has submitted that the animals are purchased by the petitioner for his business use of Animal Husbandary and milk selling purpose, however, during transportation, police has seized vehicle as well as the animals. He has drawn the attention of this Court to the certificate issued by Dhamane
Gram Panchayat, Taluka Shindkheda, District Dhule annexed at Annexure-C and submitted that the petitioner is a farmer by profession and he had purchased the livestock for the purpose of milking
Learned advocate for the respondent no.2 submitted that the petitioner has failed to prove his ownership qua seized the animals and the courts below have rightly rejected the applications of the petitioner after considering the documents produced by the petitioner. He has also submitted that the petitioner has faulted vital provisions of law and the certificate produced by the petitioner are not valid certificates and the genuineness of the certificates is doubted. He further submitted that as per amended Rule 125(E) of the Central Motor Vehicles Rules, the person transporting or carrying livestock has to adhere to the Rules and has to follow the relevant guidelines prescribed thereunder.
The court observed that there is no specific legal bar either in the provision or there is no such intent reflecting from the legislation so as to curtail the powers available under Section 451 of Cr.P.C.
Hence the Courts below were not precluded from exercising the powers available under Section 451 of Cr.PC in any manner and the Courts were required to examine the merits of the matter in its true sense and keeping in mind the intent and object of Section 451 of Cr.PC which provides for interim release of property during the pendency of trial. The above mentioned provisions of 1960 Act or 2005 Act provide for forfeiture by the orders of the Court which clearly would be applicable at the stage of conclusion of trial or as and when such orders directing the forfeiture are passed. None of the provisions can be inferred in a manner that such forfeiture restricts the grant of interim custody.
At this stage, It is also important to deal with the argument as raised by the respondent no.2 on the aspect as to turn down the claim of the petitioner as the ownership of the livestock is not proved by providing the ownership documents. The said argument is to be appreciated keeping in mind that this court is dealing with the application preferred under Section 451 of Cr.P.C. The said aspect would not turn the table much in a scenario when there is no rival claim as to the ownership of the seized property.
The muddamal consist of 12 Buffaloes. The petitioner, as stated in the petition, is into the business of milking. There is no allegation that the petitioner was transporting livestock for the purpose of slaughter. It is this Court finds that the findings of the Courts below in rejecting the application of the petitioner on the ground of alleged violation of the procedures is clearly erroneous and deserves to be set aside. It is important to keep in mind that commission of offence is always owing to some violation of law and it is only then criminal machinery is put in motion. Hence by merely citing that there has been violation of legal procedures, the powers available under Section 451 Cr.PC cannot be ignored.
The Court held that the findings of the courts below on the aspect of ownership and absence of material also requires interference in view of the settled legal position that the provisions of Section 451 do not require any adjudication of the ownership of property and that in absence of any rival claim the interim custody of the property can be handed over to the person from whose possession the property is seized by the investigating officer. The petitioner cannot be expected to prove his claim of ownership in the same manner as he has to prove the same in a civil court and hence the impugned orders cannot be permitted to sustain on this ground also. The Petition was allowed.