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2009 DIGILAW 584 (CAL)

Arun Kumar Mishra v. STATE OF WEST BENGAL

2009-08-05

ASHIM KUMAR ROY

body2009
Judgment :- (1) The truck in question was seized in connection with an offence punishable under Section 5 of the West Bengal Molasses Control Act, 1973 for alleged contravention of Section 3 of the said Act, read with Rule 18 (2) of the West Bengal Molasses Control (Regulation, Storage and Transport) Notified Order, 1986 by the Excise Officer, when the present petitioners claiming to be the registered owner of the said truck made a prayer before the Learned Chief Judicial Magistrate, Raiganj, Uttar Dinajpur for return of the same. Since, their such prayer has been rejected by the court below, the legality and propriety of such order is now challenged in the instant criminal revisional application. (2) Heard the learned Counsels appearing on behalf of the parties. Perused the impugned order and other materials on record. (3) It appears from the impugned order that the Learned Magistrate rejected the prayer for return of the vehicle on the ground that after the seizure of vehicle on the prayer of the Investigating Officer, a confiscation proceeding has been initiated in respect thereof and the same is still pending as such it is the Collector concerned who alone can consider the question of custody of the seized vehicle. The Learned Magistrate was of the further opinion till the prosecution report is filed he is not competent to decide the question of custody. (4) At the very outset it may be noted that vehicle in question has not been seized in connection with an offence punishable under the Bengal Excise Act, whereas the same was seized for its involvement in the commission of the offence punishable under the West Bengal Molasses Control Act, 1973. While the Bengal Excise Act provides for confiscation of any conveyance if the same is used for carrying any intoxicants in respect of which an offence punishable under the said Act is committed and vested the power of confiscation upon the Collector there is no such provisions of confiscation contained in West Bengal Molasses Control Act, 1973. Thus, when any vehicle is seized in connection with a case relating to any offence punishable under the West Bengal Molasses Control Act, 1973, even by an Excise Officer, there is no question of referring the matter to the collector or for initiation of any confiscation proceedings. Thus, when any vehicle is seized in connection with a case relating to any offence punishable under the West Bengal Molasses Control Act, 1973, even by an Excise Officer, there is no question of referring the matter to the collector or for initiation of any confiscation proceedings. Since there is no provisions for confiscation of the vehicle by the Collector under the Molasses Control Act, the learned Magistrate is not de hore of jurisdiction to decide the question of custody of such vehicle seized relating to an offence punishable under the said Act. The findings on which the Learned Magistrate rejected the petitioners prayer for return of the vehicle is wholly misconceived and not tenable in law. The order impugned is thus set aside. (5) Now it is the case of the petitioner that since the seizure of the vehicle in question the same has been lying at the Excise Barrack uncared under the open sky. The contention of the petitioner has not been disputed by the State and it is also an admitted position no prosecution report has been filed till date. Thus, in my opinion, no useful purpose will be served by detaining the vehicle in question at Excise Barrack till the conclusion of the trial, otherwise in passage of time the vehicle would be reduced to mere scrap. I, therefore, direct the vehicle in question be returned to its registered owner on a bond of Rs. 2 lakhs to the satisfaction of the Learned Chief Judicial Magistrate, Raiganj, Uttar Dinajpur on further condition that no third party interest be created in respect of the said vehicle nor the nature and character of the same be changed till the disposal of the criminal case in connection with same has been seized. The Learned Magistrate shall pass necessary order of release of the vehicle after being fully satisfied that the petitioners are the registered owner of the same. Since the prayer for return of the goods carrying in the said vehicle has not been pressed by the learned Counsel of the petitioners, during the hearing of this case no order is needed to be passed in this criminal revision. However, this order will not preclude the lawful owner of the same to make such prayer in accordance with law. However, this order will not preclude the lawful owner of the same to make such prayer in accordance with law. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible.