Mohammad Saddam vs State Of Haryana

Suvir Sehgal, J

Petitioner has moved this Court assailing orders dated 21.07.2020 and 07.12.2020 (Annexures P-1 and P-2) passed by the authorities under Haryana Gauvansh Sanrakshan and Gausamvardhan Act, 2015 (for short the “Act of 2015”).

Counsel for the petitioner states that petitioner is the owner of a container bearing No.RJ-05-GA-4375 which was impounded in FIR No.166 dated 13.05.2020 lodged for offences under Sections 279, 336 IPC and Sections 5, 13(2) of Act of 2015. Counsel submits that an application moved before the Judicial Magistrate for releasing the vehicle on sapurdari, on furnishing surety bonds has been rejected vide order (Annexure P-1) and petitioner remained unsuccessful in appeal which has been dismissed by the impugned order (Annexure P-2). Counsel has argued that the vehicle has been confiscated by the authorities without recording their satisfaction that it is being used for commission of the offence which is mandatory under Section 17(2) of Act of 2015. Placing a reliance upon the judgment of a Division Bench of this Court in Gurbinder @ Shinder V/s. State of Punjab, 2016(4) RCR (Criminal) 492, counsel contends idle parking of a vehicle, unattended in the premises of the police station would not serve any purpose and the petitioner is prepared to furnish an undertaking to assure that the production of vehicle as and when required by the trial Court.

Writ petition has been contested by the respondent by filing a response.

State counsel has invited the attention of the Court to the FIR (Annexure R-1) to assert that the vehicle was intercepted on information and on search, 30 Gauvansh (cows) were found with their legs and mouth tied with a rope. State counsel submits that Sanjay and Sakeel, who were travelling in the canter were apprehended. It is assertion that the cows were being carried for slaughter and after investigation of the FIR, challan has been presented and both the accused are facing trial. He emphasizes that the vehicle was involved in a serious offence and it has been legally confiscated under the provisions of Section 17 of the Act of 2015.

I have heard counsel for the parties and considered their respective submissions besides examining the documents appended with the paper-book.

The legality of the impugned orders has to be tested on the anvil of Section 17(2) of the Act of 2015 which reads as under:-

“(2) Where any vehicle referred to in sub-section (1) is confiscated in connection with the commission of any offence punishable under this Act, a report about the same, without unreasonable delay, be made by the person seizing it to the competent authority and whether or not a prosecution is instituted for commission of such offence, the competent authority, having jurisdiction over the area where the said vehicle was confiscated, may, if satisfied that the said vehicle was used for commission of offence under this Act, order confiscation of the said vehicle:

Provided that before ordering confiscation of the said vehicle, a reasonable opportunity of being heard shall be afforded to the owner of the said vehicle.”

A plain reading of the above reproduced provision shows that a competent authority having the jurisdiction over the area where the vehicle has been seized is empowered to order confiscation of a seized vehicle on being satisfied that it is being used for commission of the offence under the Act of 2015. Proviso to the sub-section provides that the competent authority has to give a sufficient opportunity of hearing to the owner of the seized vehicle before ordering confiscation.

While confiscating the vehicle, the competent authority passed the impugned order (Annexure P-1). The operative part of the order reads as under:-

“I have gone thoroughly in the statement of the Investigating Officer and the statement of the vehicle owner, the vehicle owner himself has told in his statement that he has given his vehicle to the Sanjay son of Shri Lajpat through GPA, which was noticed. Therefore, in view of the above facts, I pass orders for confiscation of the above vehicle number RJ05-GA-4375 under the powers conferred in the Haryana Gauvansh Sanrakshan and Gausamvardhan Act, 2015. The copy of the same be sent to the In-charge of Police Station Hodal.

The file be consigned in the record room.”

Perusal of the above reproduced order shows that the competent authority has failed to record any satisfaction that the vehicle was used for the commission of an offence under the Act of 2015. He has simply passed the order on the basis of the statement of the Investigating Officer and that of the petitioner who had stated that he had given the vehicle on GPA to accused Sanjay. Even the Appellate Authority has failed to advert to the mandatory provision while rejecting the appeal vide order (Annexure P-2). On account of this reason alone, impugned orders cannot be sustained. It is not in dispute that the petitioner is the registered owner of the vehicle as is evident from the copy of the Registration Certificate (Annexure P-3). He is therefore entitled to the release of the vehicle on sapurdari.

A Division Bench of this Court in Gurbinder Singh’s case (supra), observed that there is no logic in denying the interim custody of a vehicle seized by the police as neither the State nor the owner of the vehicle is going to be benefited, if the vehicle remained parked unattended at the police station occupying a large space causing inconvenience to the department. The Division Bench observed that it is an open secret that if vehicle is parked unattended, its valuable parts are casually taken away or stolen and by the time the Court comes to a conclusion that the vehicle was used for committing the crime, the value of the vehicle would have substantially depreciated.

For the foregoing reasons, writ petition is allowed. Impugned orders (Annexures P-1 and P-2) are set aside. Vehicle is ordered to be released on sapurdari to the petitioner, subject to his furnishing a surety bond of the value of Rs.2,00,000/-, besides complying with other formalities including an undertaking to the effect that he will produce the vehicle as and when required by the Court or the authorities.