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Madhya Pradesh High Court · body

2009 DIGILAW 821 (MP)

Pratik Parik v. State of M. P.

2009-07-20

J.K.MAHESHWARI

body2009
JUDGMENT : J.K. Maheshwari, J. This petition has been filed under Section 482 of the Cr. PC., assailing the order dated 28.5.09, passed in Criminal Revision No. 86/09 by Additional Sessions Judge, Bagli, district Dewas, affirming the order dated 17.4.09 passed by the Judicial Magistrate First Class, Bagli in Criminal Case No. 244/09, rejecting the application of the applicant under Section 451/457 of the Cr.P.C. 2. On perusal of the order impugned the trial Court has rejected the application of the applicant, filed under Section 451/457 of the Cr. PC., because it is filed by the Power of Attorney holder, however, in absence of the prayer of registered owner order to release the vehicle on supurdgi cannot be directed. The revisional Court though set aside the findings and held the vehicle may be released on supurdgi to the Power of Attorney holder, but because the liquor seized was more than 50 bulk liters and the jurisdiction to pass an order of disposal of such property by the competent criminal Court is barred under M.P. Excise Act; however, the application was rejected. It has also observed that an information for initiation of the confiscation proceedings of the seized vehicle was sent by the investigating Officer to the competent authority; however, release of the seized vehicle on supurdgi by the Court is not permissible. 3. At the time of issuance of notice to show cause against admission learned Government Advocate has requested to seek instruction whether an intimation of initiation of the confiscation proceedings has been conveyed to Court by the competent authority or not? Learned Government Advocate has contended that on 6.7.09 notice has been issued by the Investigating Officer, to the registered owner of the vehicle to appear before the Collector, and to show cause why the seized vehicle may not be confiscated; however, on the strength of the said document it is submitted that an intimation has been given by the competent authority to the Court, therefore, the order passed by the revisional Court is liable to be upheld. 4. After having heard learned counsel of both side, the core question arises for consideration in this case is whether jurisdiction of the competent criminal Court is barred, as per Section 47-D of the M.P. Excise Act, in view of the facts & circumstances of this case and the finding recorded by the revisional Court is justified? 5. 4. After having heard learned counsel of both side, the core question arises for consideration in this case is whether jurisdiction of the competent criminal Court is barred, as per Section 47-D of the M.P. Excise Act, in view of the facts & circumstances of this case and the finding recorded by the revisional Court is justified? 5. To adjudicate the said issue it is necessary to reproduce the provisions of Sections 47-A & 47-D of M.P. Excise Act, which are as under :- "[47-A Confiscation of Seized intoxicants, articles, implements, utensils, materials, conveyance etc.] (1) Whenever any offence covered by clause (a) or (b) sub-Section (1) of Section 34 is committed and the quantity of liquor found at the time or in the course of detection of offence exceeds fifty bulk liters, every office, empowered under Section 52, while seizing any intoxicants, articles, implements, utensils, materials, conveyance etc. under sub-Section (2) of Section 34 or Section 52 of the Act, shall place on the property seized a mark indicating that the same has been so seized and shall without undue delay either produce the seized property before the officer not below the rank of District Excise Officer authorised by the State Government by a notification in this behalf (hereinafter referred to as the Authorised officer), or where having regard to its quantity or bulk or any other genuine difficulty it is not expedient to do so, make a report containing all the details about the seizure to him. (2) When the Collector, upon production before him of intoxicants, articles, implements, utensils, materials, conveyance etc. or on receipt of a report about such seizure as the case may be, is satisfied that an offence covered by clause (a) or clause (b) of sub-Section (1) of Section 34 has been committed and where the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk liters he may, on the ground to be recorded in writing, order the confiscation of the intoxicants, articles, implements, utensils, materials, conveyance etc. so seized. He may, during the pendency of the proceedings for such confiscation also pass an order or interim nature for the custody, disposal etc. of the confiscated intoxicants, articles, implements, utensils, materials, conveyance etc. as may appear to him to be necessary in the circumstances of the case. so seized. He may, during the pendency of the proceedings for such confiscation also pass an order or interim nature for the custody, disposal etc. of the confiscated intoxicants, articles, implements, utensils, materials, conveyance etc. as may appear to him to be necessary in the circumstances of the case. (3) No order under sub-Section (2) shall be made unless the Collector has - (a) sent an intimation in a form prescribed by the Excise Commissioner about initiation of proceedings for confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance, etc to the court having jurisdiction to try the offence on account of which the seizure has been made. (b) Issued a notice in writing to the person from whom such intoxicant, articles, implements, utensils, materials, conveyance, etc. have been seized and to any person staking claim to and to any other person who may appear before the Collector to have an interest in it. (c) afforded an opportunity to the persons referred to in clause (b) above of making a representation against proposed confiscation. (d) given to the officer effecting the seizure under sub-Section (1) and to the person or persons who have been noticed under clause (b) a hearing.] [47-D. Bar of jurisdiction of the Court under certain circumstances. - Notwithstanding anything to the contrary contained in the Act, or any other law for the time being in force, the Court having jurisdiction to try offences covered by the clause (a) or (b) of sub-Section (1) of Section 34 on account of which such seizure has been made, shall not make any order about the disposal, custody etc. of the intoxicants, articles, implements, utensils, materials, conveyance etc. seized after it has received from the Collector an intimation under Clause (a) of sub-Section (3) of Section 47-A about the initiation of the proceedings for confiscation of seized property.]" 6. Bare reading of the aforesaid it is apparent that the competent authority i.e., Collector at the time of confiscation of the seized intoxicants, articles, implements, utensils, materials, conveyance is required to intimate the Court having jurisdiction to try the offence in which the seizure has been made under Section 47-A (3) (a) of the M.P. Excise Act. Bare reading of the aforesaid it is apparent that the competent authority i.e., Collector at the time of confiscation of the seized intoxicants, articles, implements, utensils, materials, conveyance is required to intimate the Court having jurisdiction to try the offence in which the seizure has been made under Section 47-A (3) (a) of the M.P. Excise Act. If such an intimation is given by the confiscating authority i.e., Collector, on intimation of the confiscating authority the jurisdiction of the Court to pass an order about disposal or the custody of the seized intoxicants, articles, implements, utensils, materials, conveyance is barred. 7. In the present case it does not reflect from the documents produced that an intimation under Section 47-A(3)(a) of the M.P. Excise Act has been communicated to the Court, trying the offence, however, the Bar of Section 47-D of the M.P. Excise Act is not attracted until and unless an intimation has been received by the Court from the confiscating authority i.e., Collector. 8. As per Section 451 of the Cr. PC. the competent Criminal Court may pass an order of custody and disposal of the property during inquiry or trial or otherwise if the property subject to speedy and natural decay the court after recording such findings as feels necessary order it to be sold or otherwise dispose of. If a person is unknown the Magistrate may detain the property and in such case shall issue a proclamation specifying the articles to which such property consists and requiring any person who may have a claim thereto to appear before the Magistrate and to establish his claim with respect to property within six months form the date of proclamation. 9. In view of the foregoing discussion it is apparent that general powers for disposal of the property have been given under the Cr. P.C. to the competent Court trying offences wherein the said property was seized. The competent criminal Court may pass an order of interim custody in view of the terms and conditions as discussed herein above. While in the cases registered under Section 34 of the M.P. Excise Act the jurisdiction of the Court is barred under certain circumstances. P.C. to the competent Court trying offences wherein the said property was seized. The competent criminal Court may pass an order of interim custody in view of the terms and conditions as discussed herein above. While in the cases registered under Section 34 of the M.P. Excise Act the jurisdiction of the Court is barred under certain circumstances. Thereby on satisfaction of the confiscating authority on commission of offence in case of recovery of the liquor exceeding 50 bulk liters the orders are required to be passed by the said authority either of interim nature or the custody or disposal thereof. While passing the order under Section 47-A(2) the confiscating authority is bound to intimate the Court having jurisdiction to try the offence on account of which seizure has been made in a prescribed form. As per Section 47-D, it is apparent that after receiving an information from the confiscating authority of the proceedings of confiscation the jurisdiction under Sections 451 and 457 of Cr.P.C. vested with the criminal Court, is arrested, meaning thereby prior to receiving an intimation from the confiscating authority to competent criminal Court trying the offence the bar of Section 47-D is not attracted, but on receiving the intimation the bar applies. 10. In the case in hand no document has been produced even before this Court showing communicating of intimation by the confiscating authority i.e., Collector to the Court, however, the bar of Section 47-D of the M.P. Excise Act does not come in the way, while deciding the application under Section 451/457 of the Code of Criminal Procedure. However the finding recorded by the revisional Court of sending an intimation by the Investigating Officer to confiscating authority i.e., Collector, is not sufficient to arrest the jurisdiction of the competent criminal Court trying the offences, even in case of Section 34 of the M.P. Excise Act. 11. Accordingly, this petition is allowed. The orders passed by the trial Court as well as revisional Court are hereby set aside. The Courts below are directed to pass appropriate orders on the application filed by the applicant in accordance with law and in view of the discussions as made herein above.