Futile To Keep Seized Vehicles At Police Stations For Long: J&K HC

Legal Article

While ruling on a very significant legal point pertaining to the keeping of seized vehicles in police stations, it would be vital to note that the Jammu and Kashmir and Ladakh High Court at Jammu in a learned, laudable, landmark and latest judgment titled Qadeer Hussain vs UT of J&K in WP(Crl) No. 1/2024 that was reserved on 12.01.2024 and then finally pronounced on 23.02.2024 has minced just no words to hold unambiguously that it is futile to keep vehicles seized in connection with criminal cases, at police stations for long periods. It must be mentioned here that the Single Judge Bench comprising of Hon’ble Mr Justice Wasim Sadiq Nargal has underscored that courts vested with the power regarding such case-related property must immediately pass appropriate orders for its release by taking the requisite bond and security to ensure return of the vehicle, if required at any later point of time. Most commendably, the Single-Judge Bench was most unequivocal in holding clearly that, “This Court is of the considered view that whatever be the situation, it would be a futile exercise to keep seized vehicles at the police stations for a long period.” No denying it.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Wasim Sadiq Nargal sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner through the medium of the present petition is seeking following reliefs:-

a) Certiorari, seeking quashment of the order dated 20.07.2023 passed by the Court of Learned Chief Judicial Magistrate in the case titled “UT of J&K through SHO Police Station Loran Vs Qadeer Hussain and Anr,” File No. 60/Challan having CNR No. JKPN030008182023 to the extent that the vehicle of the petitioner bearing Registration No. JK12 5099 (Tata Goods Carrier) has been ordered to be forfeited to SPCA (Society for Prevention of Cruelty against Animals), Poonch in complete violation of principle of Natural Justice and Code of Criminal Procedure;

b) Certiorari, seeking quashment of the order dated 02.11.2023 passed by the Court of Learned Principal Session Judge, Poonch in the case titled “Qadeer Hussain Vs UT of J&K through SHO Police Station Poonch,” bearing File No. 10/Criminal appeal having CNR No. JKPN010003092023 to the extent whereby the appeal against the impugned order dated 20.07.2023 passed by the Court of Learned Chief Judicial Magistrate, Poonch in the case titled “UT of J&K through SHO Police Station Loran Vs Qadeer Hussain and Anr,” under File No. 60/Challan having CNR No. JKPN030008182023 was dismissed being illegal arbitrary and against the statutory provisions of law;

c) Mandamus, seeking directions to the respondents to release the vehicle bearing Registration No. JK12 5099 (Tata Goods Carrier) seized in case titled “UT of J&K through SHO Police Station Loran Vs Qadeer Hussain and Anr,” pending before the Court of Learned Chief Judicial Magistrate arising out of F.I.R bearing No. 0013/2023 registered with Police Station Loran which was ordered to be forfeited to SPCA (Society for Prevention of Cruelty against Animals), Poonch vide impugned orders dated 20.07.2023 and 02.11.2023 (Supra);”

BRIEF FACTS OF THE CASE:

To put things in perspective, the Bench envisages in para 2 that, “The petitioner is claiming to be the lawful and absolute owner of the vehicle bearing Registration No. JK12 5099 (Tata Goods Carrier) and possesses all legal documents and titles establishing unchallenged ownership rights over the aforementioned vehicle as alleged by him.”

While elaborating in detail on the facts of the case, the Bench enunciates in para 3 that, “The petitioner challenges the order dated 20.07.2023 passed by the Court of Chief Judicial Magistrate, Poonch in the case titled UT of J&K through SHO Police Station, Loran Vs. Qadeer Hussain and Another by virtue of which the vehicle bearing Registration No. JK12 5099 has been ordered to be forfeited to SPCA (Care and Maintenance of Case Property Animals) under Rule 8 of Notification Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules 2017. The petitioner is also seeking quashment of the order dated 02.11.2023 passed by the Court of Principal Sessions Judge, Poonch in case titled Qadeer Hussain Vs. UT of J&K through Police Station, Poonch in file No. 10/Criminal Appeal, whereby, Court of Principal Sessions Judge, Poonch has dismissed the appeal.”

As we see, the Bench then points out in para 4 that, “The case of the petitioner is that an FIR bearing No. 0013/2023 dated 07.07.2023 was lodged against the petitioner and subsequently, a challan was presented before the Court of Chief Judicial Magistrate, Poonch, wherein the petitioner pleaded guilty to allegations constituting offences under Section 188 of Indian Penal Code, 1860 and Section 11 of the Prevention of Cruelty to Animals Act, 1960.”

Further, the Bench then discloses in para 5 that, “Further case of the petitioner is that the Chief Judicial Magistrate, Poonch while awarding punishment to the petitioners and concluding the trial, directed the forfeiture of the aforesaid vehicle owned by the petitioner to the SPCA, Poonch under Rule 8 of Notification Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules 2017 and as per Rule 8, if the accused person is convicted, or pleads guilty, the Magistrate shall deprive him of the ownership of animals and forfeit the seized animals to the infirmary Pinjrapole, SPCA Animal Welfare Organization or Gaushala already having custody for proper adoption or other disposition.”

Furthermore, the Bench then reveals in para 6 that, “Learned counsel for the petitioner submits that the petitioner has filed an appeal against the order dated 20.07.2023 passed by the Chief Judicial Magistrate, Poonch, and the same was dismissed by the Principal Sessions Judge, Poonch vide order dated 02.11.2023.”

Quite ostensibly, we see that the Bench then states in para 7 that, “Feeling aggrieved of the orders passed supra, the petitioner has filed the instant petition.”

LEGAL ANALYSIS

Do note, the Bench notes in para 11 that, “From the bare perusal of the order passed by the Chief Judicial Magistrate, Poonch, it is apparently clear that the accused/applicant was deprived of the ownership of the cattle and vehicle bearing registration No. JK12-5099(TATA Mobile) used in the commission of offence which was seized by the police and subsequently, forfeited to the Government and was ordered to be handed over to SPCA (SOCIETY FOR PREVENTION OF CRUELTY AGAINST ANIMALS), Poonch, which shall be the absolute owner thereof, for their custody and disposal under rules by relying upon Rule 8 of the Notification Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules 2017 . The said rule is reproduced as under:-

“8. Status of animal upon disposal of litigation –(1) if the accused is convicted, or pleads guilty, the Magistrate shall deprive him of the ownership of animal and forfeit the seized animal to the infirmary, Pinjrapole, SPCA, Animal Welfare Organization or Gaushala already having custody for proper adoption or other disposition”.”

Be it noted, the Bench notes in para 12 that, “From the record, it appears that the Chief Judicial Magistrate, Poonch has relied upon Rule 8 of the Notification Supra, which pertains only to the status of the animal upon disposal of litigation and could not have been applied for forfeiture of the vehicle. The order passed by the Chief Judicial Magistrate, Poonch accordingly, is flawed, however, the appellate Court with a view to rectify the mistake done by the Chief Judicial Magistrate, Poonch although has referred to Section 452 of the Code of Criminal Procedure, which is applicable to the disposal of the property (vehicle) at the conclusion of the trial yet there is no reference of the aforesaid statutory provision by the Chief Judicial Magistrate, Poonch. Pertinently, the Chief Judicial Magistrate, Poonch has not disposed of the property by applying the aforesaid statutory provisions rather, he has placed reliance on Rule 8 of the Notification Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules 2017 which was applicable to the extent of animals only and not to the vehicle in question.”

Briefly stated, the Bench states in para 13 that, “In terms of sub-section (1) of Section 452, when an inquiry or trial before a criminal court has been concluded, the court is empowered to pass an appropriate order for its disposal by destruction, confiscation or delivery to any person claiming to be entitled to the possession thereof or otherwise, entitlement postulates a right. The function which the Court exercises under Section 452 is of a judicial nature. In making that order, the court must undoubtedly have due regard to the entitlement claimed by the person who seeks the possession of the property.”

While citing the relevant case law, the Bench observes in para 14 that, “The Hon’ble Apex Court has succinctly explained the object and scheme of the various provisions of the Code as to disposal of case property in the case titled Sunderbhai Ambalal Desai Vs State Of Gujarat, reported as 2002 Supp (3) SCR 39 Court has observed as follows:

“The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary.” In view of the ratio-laid down by the Hon’ble Apex Court, it is clear that unless the case property is necessary, court cannot retain the case property either in its custody or in the custody of police for any time longer. Therefore, it is the duty of court to pass appropriate property orders according to law without any delay.””

We see that the Bench in para 15 then discusses in detail what the Hon’ble Apex Court held in Bharat Sanchar Nigam Limited Vs. Suryanarayanan & Anr reported as AIR online 2018 SC 1377 which is similar to what has been held above.

Most significantly, the Bench mandates in para 16 that, “This Court is of the considered view that whatever be the situation, it would be a futile exercise to keep seized vehicles at the police stations for a long period. It is for the Courts vested with the power to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. Therefore, the court under section 452 of the Code of Criminal Procedure cannot decide any claim to manage any property or any title to the property, but shall dispose of the property on the basis of possession.”

As a corollary, the Bench holds in para 17 that, “Thus, the order passed by the Court of Chief Judicial Magistrate, Poonch was legally flawed and the finding recorded by the appellate authority to the extent that there is no illegality in the aforesaid order dated 20.07.2023 is also legally not sustainable being alive to the fact that Section 452 of the Code of Criminal Procedure was applicable to the case in hand and therefore the same is liable to be set aside.”

Most remarkably, the Bench postulates in para 18 that, “From bare perusal of Section 452 of the Code Supra, it is apparently clear that the order for disposal of the property could be done at the conclusion of the trial and not otherwise. In the instant case, the accused/applicants have been deprived of the ownership of the cattle and the vehicle used in the commission of offence by the Chief Judicial Magistrate, Poonch by placing reliance upon Rule 8 which was applicable only insofar as the status of animal upon disposal of the litigation was concerned and not the vehicle. The forfeiture of the vehicle can only be done under Section 452 Cr.PC and that too after the conclusion of the trial and not otherwise, but in the present case, there is no reference of the aforesaid statutory provision in the order passed by the Chief Judicial Magistrate Poonch.”

To be sure, the Bench then directs in para 19 that, “Thus, this Court is of the view that the order passed by the Chief Judicial Magistrate, Poonch to the extent of forfeiture of the vehicle by placing reliance of Rule 8 of Notification Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules 2017 is legally not sustainable and liable to be quashed.”

In addition, the Bench further directs in para 20 that, “Besides, the order passed by the appellate authority dated 02.11.2023 to the extent of recording the finding that there is no illegality in the order dated 20.07.2023 shall also stand quashed.”

Most rationally, the Bench propounds in para 21 that, “The appellate Authority although has referred to the aforesaid statutory provision dealing with the confiscation of the vehicle, yet it has escaped the eye of the appellate authority that the said provision has not been relied at the time of confiscation or forfeiture of the vehicle by the Chief Judicial Magistrate, Poonch and rather, the appellate authority instead of quashing the order of Chief Judicial Magistrate, Poonch to that extent, has instead upheld the said order by placing reliance on Section 452 Cr.PC in a way to undo the wrong done by the Learned Chief Judicial Magistrate, Poonch. Thus, the order passed by the appellate authority is also flawed and cannot sustain the test of law and for the reasons discussed above, the order of the appellate authority also stands quashed.”

What’s more, the Bench directs in para 22 that, “In the aforesaid backdrop, this Court deems it proper to allow the petition by remanding the case back to the Chief Judicial Magistrate, Poonch to examine the issue afresh in conformity with the provisions of Rule 8 of Notification Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules 2017 coupled with Section 452 of the Code of Criminal Procedure within a period of six weeks from the date, copy of this order along with writ petition and its annexures are made available to the said Court.”

Finally, the Bench then concludes by holding in para 23 that, “Parties are directed to appear before the Court of Chief Judicial Magistrate, Poonch on 04.03.2024.”

In a nutshell, the Jammu and Kashmir and Ladakh High Court has made it indubitably clear that it is futile to keep seized vehicles at police stations for long. It is the bounden duty of the police to comply in totality with what has been held so very commendably by the Court in this leading case and discussing the relevant Apex Court rulings also. The earlier this is done by the police, the better it shall be in the longer run!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.