IN
THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.
WRIT PETITION NO. OF 2017 (CR)
PETITIONER : SUNIL
DHANGAR
Versus
RESPONDENTS
: THE STATE OF MADHYA PRADESH
& Ors.
DECLARATION
(Under Rule 25
of Chapter X)
The copies as required by Rule 25 of Chapter X of the High Court of Madhya
Pradesh Rules, 2008, have served upon
Clerk of office of the
Advocate General for Madhya Pradesh at
PM on
2017
in Jabalpur.
PLACE : JABALPUR
DATE : ADVOCATE FOR
PETITIONER
IN THE HIGH
COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2017 (CR)
PETITIONER : SUNIL
DHANGAR
Versus
RESPONDENTS : THE STATE OF MADHYA
PRADESH
& Ors.
I N D E X
|
S. No.
|
Description of documents
|
Annexure
|
Pages
|
|
1.
|
DECLARATION
(Under Rule
25 of Chapter X)
|
|
1
|
|
2.
|
Index
|
|
2
|
|
3.
|
Chronology of Events
|
|
3 TO 5
|
|
4.
|
Memo of writ petition
with affidavit
|
|
6 TO 23
|
|
5.
|
List of documents.
|
|
24
|
|
6.
|
Copy of the Registration of the
Vehicle dated 14.06.2012
|
P-1
|
25
|
|
7.
|
Copy of the Rent agreement dated
20.01.2014
|
P-2
|
26
|
|
8.
|
Copy of the Application dated
25.02.2015 for interim custody
|
P-3
|
27
|
|
9.
|
Copy of statement recorded by all
the parties dated 24.03.2015 & 30.03.2015
|
P-4
|
28 TO 35
|
|
10.
|
Copy of the Order dated 06.01.2016
passed by respondent No. 3
|
P-5
|
36 TO 39
|
|
11.
|
Certified Copy
of the Order dated 26.11.2016 passed by the court of IXth Additional Session
Judge, Mr. Ram Kumar Choubey, Bhopal (Madhya Pradesh) in the file of Criminal
Revision No. 279 of 2016
|
P-6
|
40 TO 42
|
|
12.
|
VAKALATNAMA
|
|
43
|
|
13.
|
COURT FEE
|
|
44
|
PLACE : JABALPUR
DATED : ADVOCATE FOR PETITIONER
IN THE HIGH
COURT OF MADHY PRADESH PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2017 (CR)
PETITIONER : SUNIL
DHANGAR
Versus
RESPONDENTS
: THE STATE OF MADHYA PRADESH
& Ors.
CHRONOLOGY OF EVENTS
|
S.No
|
Date
|
Events
|
|
1.
|
14.06.2012
|
Truck bearing Registration No. MP
09/ GF 6672 was registered in the name of petitioner
|
|
2.
|
20.01.2014
|
The said truck was given to him,
Mohd. Farid Khan S/o Mr. Bashir Khan on a monthly rent of Rs. 24,000/- in the
month of January, 2014.
|
|
3.
|
16.08.2014
|
On 16.08.2014 a Truck bearing MP
09/ GF 6672 of the petitioner was seized by forest officials under the
provisions of Indian Forest Act, 1927 (hereinafter referred to as the '1927
Act'). As per the story of prosecution, the forest officials were petrolling
in the Ratapani Sanctuary to check illegal transportation of forest produce.
During the said petrolling, petitioner's Truck was found laden with Stamp, a
forest produce in the prohibited area. Accordingly, the vehicle was seized
and a forest criminal case was registered against the petitioner under 1927
Act. The 'forest produce' is defined in Section 4 of the 1927 Act. It is not
in dispute between the parties that forest officials sent an intimation of
aforesaid seizure to the Magistrate as per section 52 of 1927 Act (Madhya
Pradesh Amendment) and it is also not in dispute that such an information was
duly received by the concerned Magistrate.
|
|
4.
|
25.02.2015
|
Driver filed an application on
25.02.2015 for release of aforesaid truck on interim custody before the respondent
No. 2, i. e. Authorised Officer &
Superintendent, Ratapani Wildlife Sanctuary, Obedullaganj Forest Division, District
Raisen- 464 993, (Madhya Pradesh), on the ground that the said truck
was given to him, Mohd. Farid Khan S/o Mr. Bashir Khan on a monthly rent of
Rs. 24,000/- in the month of January, 2014.
|
|
5.
|
24.03.2015 & 30.03.2015
|
In a statement recorded on
30.03.2015 petitioner categorically stated that he had not accorded sanction
for the illegal transportation, so also he had not given prior permission/
nor consenting party to the same.
|
|
6.
|
17.08.2014
|
Accordingly the seized truck was
confiscated in Forest Crime No. 23097 of 2007 vide Order dated 17.08.2014 passed
by Respondent No. 1, i. e. Forest Range Officer,
Delabadi, Obedullaganj Forest Division, District Raisen- 464 993, (Madhya
Pradesh)
|
|
7.
|
23.04.2015
|
So also the same was confirmed vide
Order No. 12 dated 23.04.2015 passed by respondent No. 2, i. e. Authorised Officer & Superintendent, Ratapani Wildlife Sanctuary, Obedullaganj Forest Division, District
Raisen- 464 993, (Madhya Pradesh).
|
|
8.
|
06.01.2016
|
Petitioner preferred an appeal before the respondent No. 3, i. e. Appellate Authority - Chief Conservator Of Forest,
Circle- Bhopal, 74 Bungalows, Sports Premises, Bhopal - 462 002, (Madhya
Pradesh),’which was resulted into same fate.
|
|
9.
|
26.11.2016
|
Petitioner
preferred a Criminal Revision under the provisions of Section 52 – B of the
Indian Forest Act, 1927 against the order passed by respondent No. 3, i. e. Appellate Authority - Chief Conservator Of Forest,
Circle- Bhopal, 74 Bungalows, Sports Premises, Bhopal - 462 002, (Madhya
Pradesh), resulted in dismissal of the same by the Order dated
26.11.2016 passed by the court of IXth Additional Session Judge, Mr. Ram
Kumar Choubey, Bhopal (Madhya Pradesh) in the file of Criminal Revision No.
279 of 2016
|
|
10.
|
|
Petitioner preferred a
Writ Petition under Article 226 of the Constitution of India against the Order
dated 26.11.2017 passed by the court of IXth Additional Session Judge, Mr.
Ram Kumar Choubey, Bhopal (Madhya Pradesh) in the file of Criminal Revision
No. 279 of 2016, before the Hon’ble High Court of
Madhya Pradesh Principal Seat at Jabalpur.
|
PLACE : JABALPUR
DATED : ADVOCATE FOR PETITIONER
Format No. 7
(Chapter X, Rule 23)
IN
THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.
WRIT PETITION NO. OF
2017 (CR).
CAUSE
TITLE
PETITIONER/ : SUNIL DHANGAR, Aged about 36 years,
Applicant Son
of Mr. Maan Singh Dhangar, R/o Village – Myana Jadhopur, Tahsil- Shujalpur,
District- Shajapur, (Madhya Pradesh), Idea : 99267-62571
Versus
RESPONDENTS
:1. THE STATE OF MADHYA PRADESH,
Forest
Range Officer, Delabadi, Obedullaganj Forest Division, District Raisen- 464 993,
(Madhya Pradesh). Phone : 07480 -22 4062(O), 22 4063(R)
2. Authorised Officer
& Superintendent, Ratapani Wildlife Sanctuary, Obedullaganj Forest Division, District Raisen-
464 993, (Madhya Pradesh).
.
3. Appellate Authority - Chief
Conservator Of Forest, Circle- Bhopal, 74 Bungalows, Sports Premises, Bhopal -
462 002, (Madhya Pradesh).
(Writ Petition under Article 226 of the Constitution
of India).
1. Particulars of the Cause/ Order against
which the petition is made:
|
S. No.
|
Date of Order /
Notification/ Circular / Policy/ Decision Etc. :
|
Passed in (Case Or File
Number) :
|
Passed by (Name and
Designation of the Court, Authority, Tribunal Etc.)
|
|
|
(1)
|
(2)
|
(3)
|
|
1.
|
17.08.2014
|
Forest Crime No. 23097 of 2007
|
Forest Range Officer, Delabadi, Obedullaganj Forest Division,
District Raisen- 464 993, (Madhya Pradesh)
|
|
2.
|
23.04.2015
|
12
|
Authorised Officer
& Superintendent, Ratapani Wildlife Sanctuary, Obedullaganj Forest Division, District
Raisen- 464 993, (Madhya Pradesh).
|
|
3.
|
06.01.2016
|
Revenue/ 05
|
Appellate Authority - Chief Conservator Of Forest, Circle-
Bhopal, 74 Bungalows, Sports Premises, Bhopal - 462 002, (Madhya Pradesh).
|
|
4.
|
20.11.2016
|
Criminal Revision No. 279 of 2016
|
Mr. Ram Kumar Choubey, IXth Additional Session, Bhopal (Madhya Pradesh)
|
(4) Subject –matter in
brief : By preferring this petition under Article 277 of the Constitution of
India invoking the supervisory writ jurisdiction of this Hon’ble High Court
whereby calling in question the legality, validity, propriety and correctness
of the impugned order dated 26.11.2016 whereby and wherein a criminal revision under
the provisions of Section 52-B of the Indian Forest Act, 1927 was dismissed inspite
of the fact that if vehicle is unnecessarily kept in the
police station or with the forest department, no useful purpose would be
served. The vehicle would be damaged because it is exposed to sun and rain and
in that eventuality, the vehicle can very well be released.
An order of confiscation of forest-produce in a proceeding
under Section 59-A of the Act would not amount either
to penalty or punishment. Such an order, however, can be passed only in the
event a valid seizure is made and the authorized officer satisfies himself as
regard ownership of the forest- produce in the State as also commission of a
forest-offence. An order of confiscation is not to be passed automatically, and
in terms of sub-section (3) of Section
59-A a discretionary power has been conferred upon the
authorized officer in relation to a vehicle. Apart from the ingredients which
are required to be proved in terms of sub-section (3) of Section
59-A by reason of the proviso appended to Section
59-B, a notice is also required to be issued to the owner of the
vehicle and furthermore in terms of sub-section (2) thereof an opportunity has
to be granted to the owner of the vehicle so as to enable him to show that the
same has been used in carrying forest- produce without his knowledge or
connivance and by necessary implication precautions therefor has been taken.
2.
A
declaration that no proceeding on the same subject matter has been previously
instituted in any Court, Authority or Tribunal, if instituted, the Status or
result thereof, along with copy of the Order:
Petitioner declares that that no proceeding on the same subject matter
has been previously instituted in any Court, Authority or Tribunal.
3. Details of the remedied exhausted :
The petitioner declares that he has
availed all statutory and other remedies.
4. Delay, if any, in filing the petition and
explanation therefor :
From pillar to post petitioner was knocking every door for the
redressal of his grievances but at the end petitioner surrenders himself before
this Hon’ble High Court to seek justice as litigation is the last resort when government authority
completely disregard the rule of law. Petitioner engaged some local lawyer who
pursued the matter before the Court below to engage a suitable Lawyer at
Jabalpur but due to mis – communication it was not filed before this Hon’ble
High Court. It is well settled under the Law that litigant should not suffer
for the fault of the Advocate.
5. Facts of the Case :
1.
Petitioner is a
peace loving national of India and entitled for the all the benefit and
fundamental rights as enshrined in Part III of the Constitution of India.
Respondents are the instrumentality of state within the meaning of Article 12
of the Constitution of India and therefore amenable to the writ jurisdiction of
this Hon’ble High Court.
2.
On 16.08.2014, a Truck
bearing MP 09/ GF 6672 belonging to the petitioner was seized by forest
officials under the provisions of Indian Forest Act, 1927 (hereinafter referred
to as the '1927 Act'). As per the story of prosecution, the forest officials
were petrolling in the Ratapani Sanctuary to check illegal transportation of
forest produce. During the said petrolling, petitioner's Truck was found laden
with Stamp, a forest produce in the prohibited area. Accordingly, the vehicle
was seized and a forest criminal case was registered against the petitioner
under 1927 Act. The 'forest produce' is defined in Section 4 of the 1927 Act.
It is not in dispute between the parties that forest officials sent an intimation
of aforesaid seizure to the Magistrate as per section 52 of 1927 Act (Madhya
Pradesh Amendment) and it is also not in dispute that such an information was
duly received by the concerned Magistrate. Copy of the Registration of the
Vehicle is filed herewith and marked as Annexure
P-1. Driver
filed an application on 25.02.2015 for release of aforesaid truck on interim
custody before the respondent No. 2 on the ground that the said truck was given
to him, Mohd. Farid Khan S/o Mr. Bashir Khan on a monthly rent of Rs. 24,000/-
in the month of January, 2014. Copy of the Rent agreement dated 20.01.2014 is
filed herewith and marked as Annexure
P-2. Copy of the Application dated 25.02.2015 for interim custody is
filed herewith and marked as Annexure
P-3.
3. In
a statement recorded on 30.03.2015 petitioner categorically stated that he had
not accorded sanction for the illegal transportation, so also he had not given
prior permission/ nor consenting party to the same. Copy of statement recorded
by all the parties dated 24.03.2015 & 30.03.2015 are
filed herewith and collectively filed as Annexure
P-4. Accordingly the seized truck was confiscated in Forest Crime No.
23097 of 2007 vide Order dated 17.08.2014 passed by Respondent No. 1, so also
the same was confirmed vide Order No. 12 dated 23.04.2015 passed by respondent
No. 2. Petitioner preferred an appeal before the respondent No. 3, which was
resulted into same fate. Copy of the Order dated 06.01.2016 passed by
respondent No. 3 is filed herewith and marked as Annexure P-5. Petitioner preferred a Criminal Revision under
the provisions of Section 52 – B of the Indian Forest Act, 1927 against the
order passed by respondent No. 3, resulted in dismissal of the same. Copy of
the Order dated 26.11.2016 passed by the court of IXth Additional Session
Judge, Mr. Ram Kumar Choubey, Bhopal (Madhya Pradesh) in the file of Criminal
Revision No. 279 of 2016 is filed herewith and marked as Annexure P-6. Petitioner is challenging the most arbitrary
and illegal order passed by the Court below on the following grounds amongst
others :
6. Grounds urged :
A.
For that, if
vehicle is unnecessarily kept in the police station or with the forest
department, no useful purpose would be served. The vehicle would be damaged
because it is exposed to sun and rain and in that eventuality, the vehicle can
very well be released.
B.
For that, The
corresponding provisions in the Forest Act for
seizure and confiscation of the vehicle of the forest can also be reproduced
here as under:-
52. Seizure of property liable to confiscation and procedure
therefor.
(1) When there is reason to believe that a forest offence has been
committed in respect of any forest produce, such produce, together with all
tools, boats, vehicles, ropes, chains or any other article used in committing
any such offence may be seized by any Forest Officer or Police Officer.
(2) Every officer seizing any property under this section shall
place on such property a mark indicating that the same has been so seized and
shall, as soon as may be, either produce the property seized before an officer
not below the rank of an Extra Assistant Conservator of Forest authorised by
the State Government in this behalf by notification (hereinafter referred to as
the authorised officer) or where it is, having regard to quantity of bulk or
other genuine difficulty, not practicable to produce the property seized before
the authorised officer, make a report about the seizure to the authorised
officer or where it is intended to launch criminal proceedings against the
offender immediately, make a report of such seizure to the Magistrate having
jurisdiction to try the offence on account of which the seizure has been made:
Provided that when the forest produce with respect to which
offence is believed to have been committed is the property of Government and
the offender is unknown, it shall be sufficient if the officer makes, as soon
as may be, a report of the circumstances to his official superior.
(3)
Subject to sub-section (5), where the authorised officer upon production before
him of property seized of upon receipt of report about seizure, as the case may
be, is satisfied that a forest offence has been committed in respect thereof,
he may by order in writing and for reasons to be recorded confiscate forest
produce so seized together with all tools, vehicles, boats, ropes, chains or
any other article used in committing such offence. A copy of order on
confiscation shall be forwarded without any undue delay to the Conservator of
Forests of the forest circle in which the timber produce, as the case may be,
has been seized.
(4)
No order confiscating any property shall be made under sub section (3) unless
the authorised officer-
(a)
sends an intimation in form prescribed about initiation of proceedings for
confiscation of property to the magistrate having jurisdiction to try the
offence on account of which the seizure has been made;
(b)
issues a notice in writing to the person from whom the property is seizure, and
to any other person who may appear to the authorised officer to have some
interest in such property;
(c)
affords an opportunity to the persons referred to in clause (b) of making a
representation within such reasonable time as may be specified in the notice
against the proposed confiscation, and
(d)
gives to the officer effecting the seizure and the person or persons to whom
notice has been issued under clause (b), a hearing on date to be fixed for such
purpose.
No
order of confiscation under sub-section (3) of any tools, vehicles, boats,
ropes,chains or any other article (other
than the timber or forest produce seized shall be made if any person referred
to in clause (b) of sub-section (4) proves to the satisfaction
of authorised officer that any such tools, vehicles, boats, ropes, chains or
other articles were used without his knowledge or connivance or as the case may
be, without the knowledge or connivance of his servant or agent and that all
reasonable and necessary precautions had been taken against use of the objects
aforesaid for commission."
Section 52A (Madhya
Pradesh Amendment) reads as under:-
"52A.
Appeal against the order of confiscation.-- (1) Any person aggrieved by an
order of confiscation may, within thirty days of the order, or if the fact of
such order has not been communicated to him, within thirty days of date of
knowledge of such order, prefer an appeal in writing, accompanied by such fee
and payable in such form as may be prescribed, along with certified copy of
order of confiscation to the conservator of forests (hereinafter referred to as
Appellate Authority) of the forest circle in which the forest produce has been
seized.
Explanation-(1)
The time requisite for obtaining certified copy of order of confiscation shall
be excluded while computing period of thirty days referred to in this sub
section. (2) The Appellate Authority referred to in sub-section (1), may, where
no appeal has been preferred before him, "suo motu" within thirty
days of date of receipt of copy of order of confiscation by him, and shall on
presentation of memorandum of appeal issue a notice for hearing of appeal or,
as the case may be, of "suo motu" action to the officer effecting
seizure and to any other person (including appellant, if any) who in the
opinion of the Appellate Authority, is likely to be adversely affected by the
order of confiscation, and may send for the record of the case:
Provided
that no formed notice of appeal need be issued to such amongst the appellant,
officer effecting seizure and any other person likely to be adversely affected
as aforesaid, as may waive the notice or as may be informed in any other manner
of date of hearing of appeal by the Appellate Authority. (3) The Appellate
Authority shall send intimation in writing of lodging of appeal or about
"suo motu" action, to the authorised officer.
(4)
The Appellate Authority may pass such order of "Interim" nature for
custody preservation or disposal (if necessary) of the subject matter of
confiscation , as may appear to be just or proper in the circumstances of the
case.
(5)
The Appellate Authority having regard to the nature of the case or the
complexities, involved, may permit parties to the appeal to be represented by
their respective legal practitioner.
(6)
On the date fixed for hearing of the appeal or "suo motu" action, or
on such date to which the hearing may be adjourned, the Appellate Authority
shall peruse the record and hear the parties to the appeal if present in
person, or through any agent duly authorised in writing or through a legal
practitioner, and shall thereafter proceed to pass an order of confirmation,
reversal or modification order of confiscation:
Provided
that before passing any final order the Appellate Authority may if it is
considered necessary for proper decision of appeal or for proper disposal of
"suo motu" action make further inquiry itself or cause it to be made
by the authorised officer, and may also allow parties to file affidavits for
asserting or refuting any fact that may raise for consideration and may allow
proof of facts by affidavits.
(7)
The Appellate Authority may also pass such orders of consequential nature, as
it may deem necessary. (8) Copy of final order on an order of consequential
nature, shall be sent to the authorised officer for compliance or for
passing any appropriate order in conformity with the order of Appellate
Authority. Section 52B (Madhya
Pradesh Amendment) reads as under:-
"52B.
Revision before Court of Sessions against order of Appellate Authority.-- (1)
Any party to the appeal, aggrieved by final order or by order of consequential
nature passed by the Appellate Authority, may within thirty days of the order
sought to be impugned, submit a petition for revision to the Court of Sessions
division whereof the headquarters of the Appellate Authority are situate.
Explanation.- In computing the period of thirty days under this sub-section the
time requisite for obtaining certified copy of order of Appellate Authority
shall be excluded.
(2)
The Court of Sessions may confirm, reverse or modify any final order or an
order of consequential nature passed by the Appellate Authority. (3) Copies of
the order passed in revision shall be sent to the Appellate Authority and to
the Authorised Officer for compliance or for passing such further order or for
taking such further action as may be directed by such Court.
(4)
For entertaining, hearing and deciding a revision under this section, the Court
of session shall as far as may be, exercise the same powers and follows the
same procedure as it exercises and follows while entertaining, hearing and
deciding a revision under the Code of
Criminal Procedure, 1973 (Act No. 2 of 1974).
(5)
Notwithstanding anything to the contrary contained in the Code of
Criminal Procedure , 1973 (Act No. 2 of 1974) the order of the Court of
Sessions passed under this section shall be final and shall not be called in
question before any Court.
Sec.
52C of Madhya Pradesh Amendment Bar to jurisdiction of courts etc. under
certain circumstances:- (1) On receipt of intimation under Sub-section 4
of Section 52 about initiation of the proceeding for confiscation of the
property by the Magistrate having jurisdiction to try the offence on account of
which the seizure of the property which is subject matter of confiscation, has
been made, no court, tribunal or authority (other than the authorized officers,
appellate authority and the court of Sessions referred to in Section 52, 52-A, and 52-B), shall have
jurisdiction to make order with regard to possession, delivery, disposal of
distribution of the property in regard to which proceedings for confiscation
are initiated under Section 52,
notwithstanding any thing to the contrary contained in this Act or any other
law for the time being in force.
Explanation
: where under any law for the time being in force two or more courts have
jurisdiction to try forest offence, then receipt of intimation under sub-
section 4 of Section 52 by one of the courts of Magistrate having such
jurisdiction shall be construed to be in receipt of intimation under that
provision by all the courts and the bar to exercise jurisdiction shall operate
on all such courts."
C.
For that, The
provisions of Indian Forest Act and
the amendment incorporated therein was considered by the Coordinate Bench of
this Hon’ble High Court in the case of Ramniwas Vs. Game Range Chambal Sanctuary,
Bhind, Headquarter, Ambah, District - Morena reported in 2012
Cr.L.J. 1747 = 2012(2) MPLJ 661. The Hon’ble High Court
compared analogous provisions in Bengal Amendment Act, 1927 and observed by
placing reliance on the judgment of Hon'ble the Supreme Court in the case of
State of West Bengal and others Vs.Sujeet Kumar Rana 2004(4) SCC 159 in
para 17 reads as under:-
“17.
The principles which can be culled out from the provisions of the 1927 Act and
the judgment in Sujeet Kumar Rana's case (supra) are as under:-
(i) Forest Act is a Special Act;
(ii)
M.P. Amendments provide a complete Code in itself by giving sufficient
safeguards both substantive and procedural against any arbitrary exercise of
power. It also prescribe hierarchy of adjudicatory bodies;
(iii) Section 52-C creates
a bar on the jurisdiction of courts as described in it. Because of non-obstante
clause used in Section 52-C it
will have an overriding effect on other laws including general provisions
of Cr.P.C.;
(iv)
Once intimation of initiation of confiscation proceedings is given to
Magistrate, the jurisdiction of Magistrate is ousted;
(v)
Magistrate and revisions Courts can't grant interim custody of vehicle de hors
the bar of Section 52-C.
(vi)
Once confiscation proceeding is initiated, the jurisdiction of criminal courts
in terms of Section 52- C of the 1927 Act is barred, the High Court also cannot
exercise its jurisdiction under section 482 Cr.P.C.
for interim release of such vehicle/property.
D.
For that, Thus,
it may be seen that amendment in the Madhya Pradesh in Indian Forest Act provides
a complete code in itself and also section 52 (c) quoted
above have overriding effect on other laws including general provisions
of Cr.P.C. However, in MP
Govansh Vadh Pratishedh Adhiniyam (hereinafter referred to as the Act), such
analogous provisions are not incorporated and, therefore, the Coordinate Bench
of this Court in the case of Sheikh Kalim Vs. State of MP in MCRC No.1296/2015
dated 13.07.2015 placed reliance on the judgment of Full Court decision in the
case of Madhukar Rao Vs. State of MP and others reported in 2000(1) JLJ 304 and
also on the judgment of Hon'ble the Supreme Court in the case of State of MP
and others Vs. Madhukar Rao reported in 2008(1) JLJ 427 and observed that when
the trial Court did not find the accused guilty of alleged offence under the
Act, confiscation of the property is not possible.
E.
For that, Before
proceeding further, the observations made in the case of Madhukar Rao (supra)
by the Full Bench of this Court may be quoted here with some benefit in para 18
of the judgment:-
“18.------------------------------------------------- If the
argument on behalf of the State is accepted a property seized on accusation
would become the property of the State and can never be released even on the
compounding of the offence. The provisions of Clause (d) of Section 39 have to be
reasonably and harmoniously construed with other provisions of the Act and the Code which
together provide a detailed procedure for the trial of the offences. If, as
contended on behalf of the State, seizure of property merely on accusation
would make the property to be of the Government, it would have the result of
depriving an accused of his property without proof of his guilt. On such
interpretation Clause (d) of Section 39(1) of the Act would suffer from the
vice of unconstitutionality. The interpretation placed by the State would
mean that a specified officer under the Act merely by seizure of property of an
accused would deprive him of his property which he might be using for his
trade, profession or occupation. This would be a serious encroachment on the
fundamental right of a citizen under Article 19(1)(g) of
the Constitution to carry on his trade, occupation or business. The power thus
would be exercised by an Executive Officer and without any proof of commission
of an offence. Such arbitrary and uncannalised powers cannot be allowed to any
Executive Authority. That would be against basic structure of the Constitution.
The Constitution envisages trial of offences by an independent judiciary. An
interpretation which would render Clause (d) of Section 39(1) to be
unconstitutional has to be eschewed and interpretation which makes it
constitutional should be preferred. See the following observations of the
Supreme Court in Kedarnath v. State
of Bihar (AIR 1962 SC 955) :
"It is well settled that if certain provisions of law,
construed in one way, would make them consistent with the Constitution, and
another interpretation would render them unconstitutional, the Court would lean
in favour of the former construction."
F.
For that, The
matter travelled upto Hon'ble the Supreme Court where the Supreme Court in the
case of State of MP and others Vs. Madhukar Rao (supra) observed as under:-
The submission was carefully considered by the Full Bench of the
High Court and on an examination of the various provisions of the Act it was
held that the provision of section 39(1)(d) would
come into play only after a Court of competent jurisdiction found the
accusation and the allegations made against the accused as true and recorded
the finding that the seized article was, as a matter of fact, used in the
commission of offence.
7. Relief Prayed for :
From
the facts and circumstances of the case, petitioner prays for the following
writ or directions :
(i)
To call for the records of Criminal
Revision No. 279 of 2016 of the Court of IXth Additional Session Judge, Mr. Ram
Kumar Choubey, Bhopal (M. P.) for its kind perusal.
(ii)
To issue appropriate writ
or direction in the nature of certiorari quashing the portion of the impugned
Order dated 06.01.2016 passed by respondent No. 3
(iii)
To issue appropriate writ
or direction in the nature of certiorari quashing the portion of the impugned
Order dated 26.11.2016 passed by the Court of IXth Additional Session Judge,
Mr. Ram Kumar Choubey, Bhopal (M. P.), in the matter of Sunil Dhangar V/s The
State of Madhya Pradesh in the file of Criminal Revision No. 279 of 2016.
(iv)
Cost of this
petition be also awarded in favour of the petitioner.
Any other writ or direction deems fit
and proper may also be granted looking to the peculiar facts and circumstances
of the case.
8. Interim Order / Writ, if prayed
for :
In view of the facts and circumstance of the case during pendency
of instant writ petition truck in question bearing Registration
No. MP 09/ GF 6672, may kindly be given to petitioner
on interim custody, on such terms and conditions as may be imposed by this
Hon’ble High Court, in the larger interest of justice.
9.
Documents relied on but not in possession of the petitioner :
All the
relevant material and original records in relation to subject matter in dispute
is lying with respondent authorities which my kindly be requisitioned by the
Hon’ble High Court for its kind perusal.
10.
Caveat
:
That, no notice of
lodging a caveat by the opposite party is received.
PLACE
:
JABALPUR
DATE : ADVOCATE FOR
PETITIONER
IN THE HIGH
COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.
WRIT PETITION
NO. OF 2017 (CR).
CAUSE TITLE
PETITIONER : SUNIL
DHANGAR
Versus
RESPONDENTS
: THE STATE OF MADHYA PRADESH
& Ors.
AFFIDAVIT
I, SUNIL
DHANGAR, Aged about 36 years, Son of Mr. Maan Singh Dhangar, R/o Village –
Myana Jadhopur, Tahsil- Shujalpur, District- Shajapur, (Madhya Pradesh), Idea :
99267-62571, the above named deponent, solemnly affirm and state on oath
as under:
1.
That I am the Petitioner in the above
mentioned writ petition and am fully
conversant with the facts deposed to in the writ
Petition.
2. That the contents of paragraphs 1 to 10 of the
accompanying writ petition are true to my
personal knowledge and the contents of paragraphs are based on legal advice,
which I believe to be true. No material has been concealed and no part is
false.
3. That the Annexure No(s). P-1 to P-6 to the
accompanying writ petition are true copies of
the originals and I have compared the said Annexures with their respective
originals and certify them to be true copies thereof.
PLACE : JABALPUR
DATED : DEPONENT
VERIFICATION
I, SUNIL DHANGAR,
the above named deponent do hereby verify on oath that the contents of the
affidavit above are true to my personal knowledge and nothing material has been
concealed or falsely stated. Verified at ______this______day of _______
DEPONENT
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO. OF 2017 (CR)
PETITIONER : SUNIL
DHANGAR
Versus
RESPONDENTS : THE STATE OF MADHYA
PRADESH
& Ors.
LIST OF DOCUMENTS
|
S.No
|
Description of document
|
Date of document
|
Original copy
|
Number of page
|
|
1.
|
Registration of the Vehicle
|
14.06.2012
|
Xerox
|
01 (One)
|
|
2.
|
Rent agreement
|
20.01.2014
|
Xerox
|
01 (One)
|
|
3.
|
Application for interim custody
|
25.02.2015
|
Xerox
|
01 (One)
|
|
4.
|
Copy of statement recorded by all
the parties
|
24.03.2015 & 30.03.2015
|
Xerox
|
08
(Eight )
|
|
5.
|
Order passed by respondent No. 3
|
06.01.2016
|
Xerox
|
04 (Four)
|
|
6.
|
Order passed by
the court of IXth Additional Session Judge, Mr. Ram Kumar Choubey, Bhopal
(Madhya Pradesh) in the file of Criminal Revision No. 279 of 2016
|
26.11.2016
|
Certified
Copy
|
03 (Three)
|
PLACE : JABALPUR:
DATED : ADVOCATE FOR PETITIONER
APPENDIX 1-A
FORMAT OF V A K A L A T N A M A
[Rules
4 (1) of the Rules framed under the Advocates Act, 1961]
WRIT PETITION NO. OF 2017 (CR)
PETITIONER : SUNIL
DHANGAR
Versus
RESPONDENTS
: THE STATE OF MADHYA PRADESH
& Ors.
I, the petitioner named below do hereby appoint, engage and
authorize advocate (s) named below to
appear, act and plead in aforesaid case / proceeding, which shall include
applications for restoration, setting aside for ex - parte orders, corrections,
modifications, review and recall of orders assed in these proceedings, in this
Court or in any other Court in which the same may be tried / heard / proceeded
with and also in the appellate, revisional or executing Court in respect of the
proceedings arising from this case / proceedings as per agreed terms and
conditions and authorize them to sign and file
pleadings , appeals, cross objections, petitions, applications,
affidavits, or the other documents as may be deemed necessary and proper for
the prosecution / defence of the said
case in all its stages and also agrees to ratify and confirm acts done by them
as if done by me.
In
witness whereof I do hereby set my hands to these presents, the contents of
which have been duly understood by me, this – day of ----------------- 2016 at
Jabalpur.
Particulars (in block letters) of each Party Executing Vakalatnama
|
Name and father s / Husband s Name
|
Registered Address
|
E-Mail Address (if any)
|
Telephone Number (if any)
|
Status in the case
|
Full Signature/ **Thumb
Impression
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
|
|
PETITIONER
|
|
Accepted
Particulars (in block letters) of each Advocate Accepting
Vakalatnama
|
|
Full Name &
Enrollment No. in State Bar Council
|
Address for Service
|
E-mail Address (if any)
|
Telephone Number (if
any)
|
Full Signature
|
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
1.
|
VIJAY RAGHAV SINGH
EN. No. M. P. /
ADV / 1554 / 2003
|
SEAT NO. 93, GOLDEN
JUBILEE BUILDING, CHAMBER NO. 317, VIDHI BHAWAN, HIGH COURT PREMISES,
JABALPUR 482 001
|
IDEA 98261-43925
|
|
|
|
2.
|
VIJAY KUMAR
SHRIVASTAVA, EN. No. M. P. / ADV /
949/ 2006
|
SEAT NO. 81, HALL NO.
1, FIRST FLOOR, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR 482 001
|
NIL
|
RIM 93015 04927
AIRTEL 97554 82448
|
|
|
3.
|
AMIT KUMAR KHARE,
EN. No. M. P. /
ADV / 1291/ 2006
|
HOUSE NO. 1483 / 17,
SARASWATI COLONY, BEHIND PARIJAT BUILDING, CHERITAL, JABALPUR 482 001
|
NIL
|
BSNL 94258 66726
LAND LINE 0761 - 2345 005
|
|
*Score out
which is not applicable
** The thumb
impression shall be attested by a literate person giving above particulars.
No comments:
Post a Comment