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2012 DIGILAW 2135 (RAJ)

Anmol Bus Service v. State of Rajasthan

2012-10-25

PRASHANT KUMAR AGRAWAL

body2012
ORDER Heard learned counsel for the parties. 2. The petitioner has preferred this Criminal Misc. petition under Section 482 Cr.P.C. against the order dated 24-9-2012 passed by the Additional Sessions Judge No. 2, Alwar in Criminal Revision Petition No. 267/2012 whereby the learned revisional Court by dismissing the revision petition filed by the petitioner has upheld and affirmed the order dated 1-8-2012 passed by the Judicial Magistrate No. 2, Alwar in Criminal Misc. Application No. 272/2012 whereby the application filed by the petitioner under Section 451/457 Cr.P.C. for releasing the vehicle (Bus) bearing Registration No. RJ-14-PA-9914 on "Supurdginama" was dismissed. 3. Brief relevant facts for the disposal of this petition are that the aforesaid vehicle, whose registration certificate stands in the name of the petitioner, was seized by the District Transport Officer, Alwar on 26-5-2012 on the premises that Rs. 5,01,464/- are due against it as tax and a demand notice for the payment of the same has already been issued by Taxation Officer, Jaipur but despite the demand being made, due tax has not been paid and the vehicle was being plied by using wrong number plate bearing registration No.RJ-32-PA-0097. The petitioner filed an application under Section 451/457 Cr.P.C. with a prayer to release the aforesaid vehicle on his "Supurdginama" which was opposed by the respondent and the learned Magistrate after hearing both the parties dismissed the application vide order dated 1-8-2012 on the ground that under the provisions of Rajasthan Motor Vehicles Taxation Act, 1951 (hereinafter to be referred as 'the Act'), Criminal Court has no jurisdiction to release a vehicle seized under the provisions of the Act. Feeling aggrieved by the aforesaid order, the petitioner filed revision petition before the revisional Court and the same was dismissed vide order dated 24-9-2012. Still dissatisfied, the petitioner is before this Court by way of this Criminal Misc. petition. 4. The legal question involved in this petition is "whether Criminal Court has jurisdiction under the provisions of Criminal Procedure Code to release a transport vehicle on “Supurdginama” which has been seized or detained under the provisions of the Act on the premises that due tax has not been paid and the vehicle was found to be plying or otherwise used in a public place." 5. Assailing the orders impugned before me, learned counsel for the petitioner submitted that even if a transport vehicle is seized or detained under the provisions of the Act on the ground that due tax has not been paid in respect of that vehicle, jurisdiction of the Criminal Court under the provisions of Criminal Procedure Code and more particularly under Sections 457 and 451 Cr. P.C. is not barred and such Court also has jurisdiction to release the seized vehicle on “Supurdginama”, when on an application moved before it the fact of seizure of the vehicle is reported to it. It was further submitted that despite the fact that legal position was brought to the knowledge of the Courts below, the same was not considered in right perspective and the application and the revision petition filed by the petitioner were dismissed without assigning proper reasons in support thereof. In support of his submissions, learned counsel for the petitioner relied upon the cases of Jawahar Lal v. State of Rajasthan reported in 2006 (1) WLC (Raj.) 484 : 2006 Cri LJ 2857 and the order dated 5-3-2012 passed by the Co-ordinate Bench of this Court in S. B. Criminal Misc. Petition No. 788/2012, Ramkaran v. State of Rajasthan. 6. On the other hand, learned Public Prosecutor by supporting the impugned orders submitted that in view of the provisions of the Act only Taxation Officer or any Officer authorized by the State Government is entitled to release a transport vehicle seized under the provisions of the Act and jurisdiction of Criminal Court is totally barred. 7. I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as relevant legal provisions and the case law. 8. Section 17 of the Act provides for seizure and release of a motor vehicle which is as below :–– "17. Power to stop a motor vehicle. 7. I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as relevant legal provisions and the case law. 8. Section 17 of the Act provides for seizure and release of a motor vehicle which is as below :–– "17. Power to stop a motor vehicle. (1) Any police officer in uniform not below such rank, as may be prescribed and any officer of the Transport Department not below the rank of a Sub-Inspector and any officer of the Commercial Taxes Department not below the rank of an Inspector posted at the check posts controlled by the Commercial Taxes Department may require the driver of any motor vehicle in any public place to stop the vehicle and cause it to remain stationary so long as may reasonably be necessary for the purpose of satisfying himself that the amount of the tax due in accordance with the provisions of this Act in respect of such vehicle has been paid. (2) Where any tax due in respect of any vehicle has not been paid, any officer referred to in sub-section (1), may seize and detain such vehicle and take or cause to be taken such steps as he may consider necessary for the safe custody of the vehicle until it is produced before the taxation officer of the area concerned within a reasonable time or the tax due in respect of the vehicle is paid : Provided that where the vehicle so seized is a non-transport vehicle, such officer may release the vehicle after obtaining a bond for a sum not exceeding Rs. 500/- from the driver or the owner or any person having possession or control of the vehicle, as the case may be, for depositing the tax within the period specified in the bond; Provided further that the provisions of sub-section (2) shall not apply to non-transport vehicles registered in Rajasthan. (3) The transport vehicle seized under sub-section (2) shall not be released unless full tax due in respect of such a vehicle has been paid. (3) The transport vehicle seized under sub-section (2) shall not be released unless full tax due in respect of such a vehicle has been paid. (4) Where the vehicle has been seized or detained under sub-section (2), the owner or person incharge of the motor vehicle may apply to the Taxation Officer or any officer authorised by the State Government together with relevant documents for the release of such vehicle and such officer shall, after the verification of the documents and on being satisfied that no tax, penalty and interest is due, by an order, release the vehicle. 9. A reading of the aforesaid provision makes it clear that the persons referred therein may stop any motor vehicle when it is found to be plying or otherwise being used in a public place so as to satisfy themselves that the amount of the tax due in accordance with the provisions of the Act in respect of such vehicle has been paid or not and if it is found that any tax due has not been paid, they are entitled to seize and detain such vehicle and to take or cause to be taken such steps as they may consider necessary for the safe custody of the vehicle until it is produced before the concerned taxation officer within a reasonable time or the tax due is paid. It is further clear that if the vehicle so seized is a non-transport vehicle, the Officer seizing the vehicle himself is entitled to immediately release the same after obtaining the requisite bond as referred therein and in such a case it is not necessary that such vehicle is produced before the taxation officer. It is also clear that if the vehicle so seized is a transport vehicle, the same shall be produced before the concerned taxation officer and it cannot be released unless full tax due in respect thereof is paid but at the same time if the taxation officer is satisfied from the verification of documents produced before him that no tax etc. is due, he can by an order release the vehicle. is due, he can by an order release the vehicle. A perusal of the aforesaid provision makes it clear that a special procedure has been provided in the Act for the release of a motor vehicle in case it has been seized/detained by a competent officer on the premises that the same has been plied or otherwise used in a public place without paying due tax. In the case of a transport vehicle it is concerned taxation officer or any officer authorized by the State Government who is entitled to make an order for release of such vehicle. According to this provision in the case of transport vehicle, the owner or person in charge of such vehicle may apply to the concerned Taxation Officer or any Officer authorized by the State Government in this behalf for the release of such vehicle and if on verification and consideration of the documents produced along with the application, it is found that no tax etc. is due, he shall make an order for the release of the vehicle without further payment of any tax etc. but in case it is found that tax is due, then the vehicle so seized cannot be released unless the tax due is paid but in both the eventualities, it is the concerned Taxation Officer or other authorized Officer who is entitled to make an order of release. 10. Section 5 of the Code of Criminal Procedure provides that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 11. The anatomy of this section is simple, yet subtle. Broadly speaking, there are three components to be separated. Firstly, the code generally governs matters covered by it. Secondly, if a special or local law exists, covering the same area, this latter law will be saved and will prevail. But if there is a specific provision to the contrary in the Cr.P.C. then it will override the special or local law. This section vehemently provides that nothing contained in the Cr.P.C. in the absence of specific provision to the contrary, affect any special or local law for the time being in force. But if there is a specific provision to the contrary in the Cr.P.C. then it will override the special or local law. This section vehemently provides that nothing contained in the Cr.P.C. in the absence of specific provision to the contrary, affect any special or local law for the time being in force. Section 41 of the Indian Penal Code deals with special law. The special law is defined as a law applicable to a particular subject. In other words, the "special law" refers to a law which is not applicable generally but which only applies to a particular or specified subject or class of subjects. Section 42 of the Indian Penal Code deals with local law as a law applicable only to a particular part of India. 12. It is thus, clear that if some special or local law provides for any special form of procedure then the provisions of Cr.P.C. shall not be applicable and the procedure prescribed in the special/local law will have to be adopted and followed. 13. As the Act is a special/local law providing for imposition of tax on motor vehicles throughout the State of Rajasthan and Section 17 thereof further provides for seizure and release of motor vehicles found to be plied or otherwise used in a public place without payment of due tax in accordance with the provisions of the Act and it confers special powers on the Taxation Officer or officer authorized by the State Government to release the vehicle so seized in the manner prescribed in the section itself and it thus prescribes a special form of procedure within the meaning of Section 5 of Cr.P.C., the provisions of the Act relating to release of such vehicle shall prevail over the provisions of the Cr.P.C. and therefore Criminal Courts have no power to release such vehicle on "Supurdginama". There is no special provision in the Act regarding the applicability of the Criminal Procedure Code in respect of release of a motor vehicle seized under the provisions of the Act. In regard to certain areas covered by specific provisions under the Act, there cannot be any pale of controversy as to the non-applicability of the provisions under the Code on the face of the salutary effect of the provisions of Section 5 of the Code as referred to above. In regard to certain areas covered by specific provisions under the Act, there cannot be any pale of controversy as to the non-applicability of the provisions under the Code on the face of the salutary effect of the provisions of Section 5 of the Code as referred to above. The concomitant and corollary consequence flowing from such a conclusion is that the Criminal Court cannot enter into any consideration as respects the question of payment or non-payment of due tax under the provisions of the Act and to give finding either way. In the Act, the jurisdiction of the Criminal Court to entertain application under the provisions of Cr.P.C. may not be expressly ousted but it has been impliedly ousted. 14. In the case of Officer-in-Charge Customs Berhampore Preventive Uni., Berhampore, Murshidabad v. Minati Biswas & Ors. reported in 1982 Cri LJ 1311, a question arose whether a Magistrate has jurisdiction to confiscate articles seized under the provisions of the Customs Act. Hon'ble Division Bench of Calcutta High Court held that provisions of the Criminal Procedure Code are subject to special or local laws and the Customs Act, 1962 is a Special Act which confers special powers on the Customs Officer to confiscate goods and also prescribes a special form of procedure therefor. The Customs Act prescribes a special form for initiation of confiscation proceedings and for search and seizure of goods liable to be levied duty under the Customs Act. In view of Section 5 Cr.P.C., the provisions of the Customs Act relating to confiscation of such goods will prevail over the provisions of the Cr.P.C. It was held by the Hon'ble Court that the order of confiscation passed by the Magistrate is illegal. 15. In view of Section 5 Cr.P.C., the provisions of the Customs Act relating to confiscation of such goods will prevail over the provisions of the Cr.P.C. It was held by the Hon'ble Court that the order of confiscation passed by the Magistrate is illegal. 15. In the case of The Superintendent of Customs and Central Excise, Nagercoil v. R. Sundar reported in 1993 Cri LJ 956, Hon'ble single Bench of Madras High Court held that in all cases where alleged contraband articles were seized by the personnel belonging to the Customs and Central Excise Departments under the provisions of the Customs Act, 1962, the disposal of the properties so seized is permissible only under the machinery provided therein and not otherwise and the Criminal Court therefore has no jurisdiction or requisite power either to order for interim custody of such seized articles pending inquiry or trial or for the return of the same after the conclusion of the trial to the person, from whom they were seized, and even in the extreme case of adjudication, penalty and confiscation proceedings, not having been completed by the time the prosecution launched coming to a successful termination, the Criminal Court is left with no other alternative except to pass an order for disposal of such seized goods only in accordance with the provisions of the Customs Act, 1962 i.e. the machinery provided therein would take the necessary course to pass an order as respects the disposal of the seized goods in accordance with the provisions contained therein. 16. In the case of Shrangdhar Sharma v. The State of Bihar reported in 1992 Cri LJ 2063, it was held by the Hon'ble Patna High Court that in view of the provisions contained in Section 4 of Cr.P.C., the powers of releasing the motor vehicle seized under Section 207 of the Motor Vehicles Act, have been conferred on specified authorities, therefore, impliedly in this regard the powers of the Magistrate under Section 457 Cr.P.C. being a Court of general jurisdiction will stand excluded. 17. 17. In the case of State of Rajasthan v. Sharda Kanwar reported in 2012 (3) Cri LR (Raj) 1212, Hon'ble Single Bench of this High Court under the provisions of Rajasthan Excise Act held that Criminal Court has no jurisdiction to release the vehicle seized in connection with offence under the Rajasthan Excise Act and such power vests exclusively within domain of Excise Commissioner or any person duly authorized by the State Govt. in this behalf. 18. It is to be noted that sub-section (6) of Section 69 of the Rajasthan Excise Act provides that whenever any means of conveyance as referred to in Clause (e) of sub-section (1) is seized in connection with commission of an offence under this Act, the Excise Commissioner or any officer authorized in this behalf by the State Government shall have, and, notwithstanding anything contained in any law for the time being in force any Court, Tribunal or other authority shall not have, jurisdiction to make order with regard to possession, delivery, disposal, release of such means of conveyance. 19. In the case of M/s. Sawai Madhopur Oil & Pulse Industries & 74 Ors. v. State of Rajasthan and others reported in 2001 (3) WLC (Raj.) 419, the controversy has been dealt with thoroughly and it has been held that Section 69(6) of the Rajasthan Excise Act rightly excludes the jurisdiction of the Criminal Courts in matters falling within the ambit of this Act and held that the Rajasthan Excise Act is an independent self codified statute providing alternative remedy and merely forum for release of vehicle has been changed, the petitioners are not at all affected by the change of forum. 20. The principles of law that can be deduced from all these decisions is that where a special or local law provides for a special procedure in regard to a particular subject matter then that procedure has to be adopted and general procedure provided under the Criminal Procedure Code is not applicable and Criminal Court has no jurisdiction to deal with the subject matter for which a special procedure has been provided. 21. 21. In the case of Noor Khan v. State of Rajasthan reported in 1998 Cri LR (Raj.) 307, Hon'ble Single Bench of this Court after elaborate consideration of Section 207 of Motor Vehicles Act, 1988 and Sections 15 and 11 of the Act came to a conclusion that Magistrate has jurisdiction to order the release of a motor vehicle under Section 457 Cr.P.C. even if the same has been seized for non-payment of tax. 22. Similarly, in the case of Jetha Ram v. State of Rajasthan reported in 2000 Cr LR (Raj.) 607, it was held that in a case in which motor vehicle has been seized by the District Transport Officer on the premises that the due tax has not been paid even then in such a case Criminal Court has jurisdiction to release the seized vehicle under Sections 451 and 457 Cr.P.C. 23. In the case of Birla Cement Works, Chittorgarh & Anr. v. State of Rajasthan & Anr. reported in 2000 Cr LR (Raj) 528 : ( AIR 2000 Raj 251 ) also, the similar view was taken by the Hon'ble single Bench of this High Court. 24. It is pertinent to note that all these three decisions relate to a period before sub-sections (3) and (4) were added to Section 17 of the Act. It is further pertinent to note that the above sub-sections have been added by Rajasthan Act No. 5 of 2001 in the year 2001 and a special procedure has been provided for release of a motor vehicle seized under the provisions of the Act. 25. So far as the case of Jawahar Lal v. State of Rajasthan, 2006 Cri LJ 2857 (supra) is concerned, although it was decided on 27-10-2005 i.e. after amendment in Section 17 of the Act but sub-sections (3) and (4) were not considered by the Court and the judgment has been passed mainly relying upon the aforesaid cases which relates to the period before the amendment was made in Section 17 of the Act. As the aforesaid decisions either relate to a period before amendment was made in Section 17 of the Act or were rendered without considering the amended provisions of the Act, they have no binding force on this Court as it is well settled legal position that a decision passed without considering relevant legal provisions is "per incurrium" having no binding effect. 26. 26. The net result of all this discussion is that in view of the special procedure and form provided in Section 17 of the Act, general procedure provided under the provisions of Code of Criminal Procedure and more particularly as provided under Sections 451 and 457 Cr.P.C. is not applicable and Criminal Court has no jurisdiction to release a motor vehicle seized on the premises that it was being plied or otherwise used in a public place without payment of due tax. Procedure provided in Section 17 of the Act ousts the jurisdiction of the Criminal Court. 27. Consequently, the petition being meritless is, hereby, dismissed. Petition dismissed.