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Madhya Pradesh High Court · body

2013 DIGILAW 1551 (MP)

Munesh Kanjar v. State of M. P.

2013-12-13

M.K.MUDGAL

body2013
ORDER 1. With the consent of parties, matter is finally heard at motion hearing stage itself. 2. Petitioner has preferred this petition under section 482 CrPC against the order dated 16.7.2013 passed by I Additional Sessions Judge, Datia in Criminal Revision No.42/2013 whereby the order dated 29.5.2013 passed by Judicial Magistrate First Class (Principal Judge, Juvenile Justice Board) Datia in Case No.20 of 2013 rejecting application filed by the petitioner under section 451/457 CrPC for releasing the vehicle on supurdginama has been affirmed. 3. It is contended by the learned counsel for the petitioner that he is registered owner of Motorcycle bearing registration No.UP 93 AA 0134 seized in Crime No. 45 of 2013 by Police Station Civil Line Datia for offence under section 34(2) of M.P. Excise Act. The case is registered against accused Deepak and matter is pending in the Court of Principal Judge, Juvenile Justice Board, Datia. Before that Court, the petitioner preferred one application for taking his vehicle on Supurdginama under section 451/457 CrPC averring that he has no concern with the crime. His application filed under section 451/457 CrPC has been rejected on the ground that the proceedings for confiscation have been commenced before the Collector, Datia under section 47 of the M.P. Excise Act and that order has been affirmed by the learned revisional Court. Both the orders of learned Courts below deserve to be set aside. It is further submitted that up till now petitioner has not received any show cause notice under the provisions of Excise Act from the office of Collector regarding confiscation proceedings and the criminal Court has not been intimated by the District Magistrate / Collector regarding confiscation of seized motorcycle. 4. Learned Counsel for the petitioner drew this Court’s attention to citation in M/s Talwale Hanuman Ji Trading Company v. State of M.P passed in M.Cr.C. No.595 of 2010 on 7.7.2011, Sunderbhai Ambalal Desai v. State of Gujrat 2003 (II) MPWN1 = 2003 (1) S (Cr.) 42 and Madan lal v. State NCT of Delhi 2002 CRI.L.J. 2605 and submits that petitioner is entitled for interim custody of vehicle till disposal of the confiscation proceedings if initiated against him. 5. 5. Learned Public Prosecutor opposing the submissions made on behalf of the petitioner submits that the proceedings in respect of confiscation under section 47D of the M.P.Excise Act have been commenced before the Collector Datia and intimation in this regard has been received by the concerned Judicial Magistrate, owing to which, Judicial Magistrate has no jurisdiction to release the property. The learned Magistrate considering the said provision passed the order dated 29.5.2013 and rejected the application of the petitioner. The said order has been confirmed by the Court of ASJ Datia. Therefore, there is no scope to invoke the jurisdiction under section 482 of CrPC to interfere in the aforesaid order. Hence, the petition be dismissed. 6. Heard learned counsel for the parties and perused the impugned orders. 7. Learned trial Court in the order dated 29.5.2013 has explicitly mentioned that the proceedings for confiscation have been commenced before the Collector Datia and information in this regard has been received by the Court. In section 47D of the M.P.Excise Act, it has been provided that if the proceeding for confiscation is commenced before the concerned Collector and intimation to this effect is received by the concerned Court, the jurisdiction for releasing the property of the concerned Magistrate is ousted. Relevant provisions of section 47D read as under : “47D. 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 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 intimated under clause (a) of sub- section (3) of section 47-A about the initiation of the proceedings for confiscation of seized property”. 8. Considering the said provision, Full Bench of this Court in Shrish Agrawal v. State of Madhya Pradesh 2003 (2) JLJ 22 = 2003 (2) MPHT 97 (FB) has held as under : “Provisions regarding confiscation of seized intoxicants and articles; debarring the criminal Court from ordering disposal of property as well as the restriction on the powers of appellate authority to stay the order of confiscation are valid piece of legislation”. On reading of the said provision, there is no iota of doubt to conclude that the confiscation has been commenced before the Collector and intimation in this regard was received by the concerned Judicial Magistrate and therefore his jurisdiction for releasing the property is ousted. The same view has been reiterated by this Court in Pratik Parik v State of M.P. 2010 (II) MPJR 113. The view observed is as follows : “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 47A(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. In the present case, it does not reflect from the documents produced that an intimation under section 47A(3) (a) of the M.P. Excise Act has been communicated to the Court, trying the offence, however, the Bar of section 47D 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”. 9. As regards the cited judgments by learned counsel for the petitioner, no advantage can be given to him as in M/s Talwale Hanuman Ji Trading Company (supra) provisions of section 47D has not been discussed and without considering the said provisions, observations made by this Court cannot be relied upon. Similarly the judgment delivered in Sunderbhai Ambalal Desai (supra) is based on general observation whether, the property seized in criminal case can be released or not and similarly, the judgment rendered in Madan lal (supra) is also not related to the issue involved in this case. 10. Keeping in view the provisions of section 47D of M.P. Excise Act and the law laid down by Full Bench of this Court, no ground is made out for invoking inherent powers enshrined under section 482 CrPC for setting aside the order passed by the learned lower Courts. 11. This petition being sans substance is hereby dismissed in limine. 12. Keeping in view the provisions of section 47D of M.P. Excise Act and the law laid down by Full Bench of this Court, no ground is made out for invoking inherent powers enshrined under section 482 CrPC for setting aside the order passed by the learned lower Courts. 11. This petition being sans substance is hereby dismissed in limine. 12. A copy of this order be sent to the trial Court concerned for Information.