Dinesh Mishra vs State of C.G. and Others

Manindra Mohan Shrivastava, J.—With the consent of the parties, the matter is heard finally.

By this petition, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 9-4-13 (Annexure-1) passed by respondent No. 3 whereby petitioner''s application for interim custody/supurdnama of the Dumper, Mini Hyva, Poke Lane, Mixture Machine including diesel pump has been rejected.

Relevant factual matrix which is in narrow encompass is that the petitioner is engaged as a Contractor executing certain works in the Forest Area, District Korba. It so happened that during inspection made in a forest area near an irrigation dam by an inspection team of the Forest Department, the aforesaid vehicle/machines of construction owned by the petitioner were found and were seized on the allegation of commission of forest offence by the forest officials. The Competent Authority upon being informed, initiated confiscation proceedings. Notices were issued to the petitioner. The petitioner came out with justification that the construction is being carried out with the permission of the Competent Authority of the Department of Water Resources under an agreement and work order issued to him. However, the proceedings ended in an order of confiscation on 8-2-10. Being aggrieved, an appeal was preferred though, unsuccessfully. A revision was, thereafter, preferred before the First Additional Sessions Judge, Bilaspur, which was also dismissed. Finally, a writ petition was filed by the petitioner before this Court which was eventually allowed vide order dated 5-3-13 (Annexure P-8) mainly on the satisfaction that the petitioner was not afforded proper opportunity of hearing.

The petitioner, thereafter, appeared before the Competent Authority on 2-4-13 and filed an application for release of vehicle/machineries by way of interim custody till final decision of the confiscation proceedings. The application, however, was rejected giving rise to this petition.

Learned Counsel for the petitioner contended that the Competent Authority rejected the application without adverting to relevant considerations in the matter of grant of interim custody swayed by an erroneous assumption of law that it is beyond its jurisdiction to grant interim custody. Learned Counsel for the petitioner submitted that the vehicle and machinery was confiscated as early as in the year 2009 and now, the matter having been remanded for fresh consideration after four years, it would be proper to release the vehicle and machinery rather than allowing it to be junked and of no use to anyone. In that event, even if the confiscation proceedings end up in favour of the petitioner, the vehicle and machinery would become rot. He further submits that the petitioner is a contractor working with the Government Department for which the vehicle and machinery are required for various construction works. If the vehicle and machinery are made available in the interim custody, the petitioner is prepared to give an undertaking that the vehicle and machinery shall be submitted before the authority as and when directed.

On the other hand, learned State Counsel submits that the petitioner was prima facie found to have committed forest offence and the vehicle/machinery having been found involved, were seized by the forest officials in the year 2009. He further submits that if the vehicle and machinery are released on interim custody to the petitioner, the vehicle and machinery may again be misused and may not be made available for confiscation in future. He also submits that the confiscation authority does not have jurisdiction to release the vehicle on interim custody.

The question whether the Competent Authority has jurisdiction to release the vehicle subject to confiscation proceedings, on interim custody, need not detain this Court, in view of the judgment of the Division Bench of the High Court of Madhya Pradesh in the case of Kailash Chand and Another Vs. State of Madhya Pradesh and Others, wherein, it has been clearly held in Para 31 of the judgment that the power to order temporary custody or possession of the property subjected to confiscation proceedings is incidental or ancillary to the power of confiscation. Therefore, the view of the authority that they had no jurisdiction to pass an order of interim custody is quite erroneous in law. In the case of Smt. Indrani Shrivastava Vs. State of Chhattisgarh and another, , this Court allowed the interim custody of the vehicle subjected to confiscation proceedings on the consideration that if the vehicle is allowed to lie idle for a long period, it will rot.

Undisputedly, in this case, the vehicle is lying idle for the last four years and if it is allowed to stand at one place, the vehicle and its various parts including tyres, tubes, metal body would be deteriorated, rusted which will ultimately affect the market value of the vehicle. Moreover, if the petitioner, at the culmination of the case, is entitled to his vehicle, he will have to be supplied the vehicle in the same condition in which it was taken away from him. The vehicle cannot be allowed to rust and rot. Therefore, I am of the view that the vehicle and machinery should be allowed to be released on interim custody.

It is accordingly ordered that on petitioner''s furnishing of unconditional undertaking in favour of the Competent Authority along with two solvent sureties in the sum of Rs. 5,00,000/- that in the event of order of confiscation being passed, the vehicle/machinery would be submitted to the custody of the authority, the vehicle and machinery shall be released on interim custody in favour of the petitioner. Accordingly, the petition is allowed. No order as to costs.