Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 262 (MP)

Nandram Pal v. State of M. P.

2014-03-04

SUJOY PAUL

body2014
ORDER 1. The petitioner, claiming himself as owner of the motorcycle (registration No.MP-67M/A-8864), has filed this petition against the order dated 25.9.2013, whereby the Chief Judicial Magistrate (CJM), Shivpuri has rejected his application for providing the vehicle in interim custody. He is also aggrieved by the revisional order passed in Criminal Revision No. 120/2013 by Second Additional Sessions Judge, Shivpuri, whereby, his revision was dismissed. 2. Shorn of unnecessary details, facts giving rise to the present petition as stated in writ petition are that the petitioner is the owner of the vehicle in question. Said motorcycle was seized by the respondents on 26.4.2013 in crime No.150/2013 for offence under section 34(2)/40A of Excise Act. Projecting himself to be owner of the said motorcycle, application under sections 451 and 457 of CrPC was filed before CJM, Shivpuri. The said application was rejected by the Magistrate. Revision of the petitioner was also dismissed. 3. Shri Deependra Singh Raghuvanshi, learned counsel for the petitioner, submits that his case is squarely covered by the judgment of this Court passed in WP No.5059/2009 (Cr.) (Sukhveer Singh v State of M.P.) and therefore, Courts below have erred in not releasing the vehicle. 4. Prayer is opposed by the other side. 5. I have heard learned counsel for the parties and perused the record. 6. Heavy reliance is placed on Division Bench's judgment of this Court in Sukhveer Singh (supra). The Division Bench relied on judgment of this Court in (Suresh Dave v. State of M.P.) reported in [ 2003 (1) MPHT 439 ]. It is apt to quote para 6 from Suresh Dave (supra), which reads as under :- “ 6. 6. Heavy reliance is placed on Division Bench's judgment of this Court in Sukhveer Singh (supra). The Division Bench relied on judgment of this Court in (Suresh Dave v. State of M.P.) reported in [ 2003 (1) MPHT 439 ]. It is apt to quote para 6 from Suresh Dave (supra), which reads as under :- “ 6. The legal position is that if the criminal Court has been given intimation as per provision under section 47D of the Act about initiation of confiscation proceedings by the Collector regarding confiscation then the criminal Court is ceased of the matter and has no jurisdiction to pass any order for interim custody, or confiscation of the vehicle.” Section 47 -D of M.P. Excise Act, 1915 reads as under :- “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 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. (Emphasis supplied) 7. The respondent along with return has filed document dated 31.05.2013 which shows that an intimation has already been sent by the Collector to the CJM that confiscation proceedings have already been initiated. This intimation is given under section 47A (3) of the Excise Act. A simple reading of section 47D, aforesaid, makes it clear that even if intimation of initiation of confiscation proceedings is sent to the Magistrate, the bar under section 47D will apply. The question is whether in view of this bar, the Courts below have erred in rejecting the application. 8. In the considered opinion of this Court, the High Court is not obliged to pass order which runs contrary to the law. This was held by the Supreme Court in (1994)1 SCC 175 (State of Punjab and Ors. v. Renuka Singla and others), AIR 2002 SC 629 (Karnataka State Road Transport Corporation v. Ashrafulla Khan and others) and AIR 2010 SC 1099 (Manish Goyal v. Rohini Goyal). This was held by the Supreme Court in (1994)1 SCC 175 (State of Punjab and Ors. v. Renuka Singla and others), AIR 2002 SC 629 (Karnataka State Road Transport Corporation v. Ashrafulla Khan and others) and AIR 2010 SC 1099 (Manish Goyal v. Rohini Goyal). At the cost of repetition, in the opinion of this Court, once conditions for applying the bar of jurisdiction of the Court are satisfied, Courts cannot exercise their discretion nor can pass orders under sections 451 and 452 of the CrPC by directing the authorities to release the vehicle. Apart from this, the stand of respondent is that the ownership of the vehicle is not clear. Vehicle owner could not be traced because vehicle in question is not found to be registered with RTO. For this reason also, mechanically vehicle cannot be given on interim custody to the petitioner. Respondent on more than one place in the return has stated that the vehicle in question was not having any registration number and therefore, owner could not be traced. The apex Court considered the question of giving custody of confiscated vehicle in (2002)9 SCC 90 (State of Karnataka v. K.A. Kunchindammed) paras 23 & 24 of the said judgment, which read as under :- “23 . ........The position is made clear by the non-obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody / release of the seized materials under CrPC has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the authorized officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the sized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided. 24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis.” A Coordinate Bench of this Court in 2014 (1) MPWN 13 (Munesh Kanjar v. State of M.P.) has held as under :- “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.” It is noteworthy that in Sukhveer Singh (supra) this Court has not specifically considered the bar of section 47D of M.P. Excise Act, therefore, that judgment is distinguishable. 9. In recent judgment in the case of [State (NCT of Delhi) v. Narendra] reported in 2014 (1) Supreme 181 the apex Court considered section 61 of Delhi Excise Act, 2009. In para 9 of this judgment it is held that no Court shall have jurisdiction to make any order with regard to the property used in committing any offence and seized under the Act. Although section 49 D is differently worded, yet its plain reading makes it clear that whenever intimation of initiation of confiscation proceedings is received by the Court, the Courts will have no jurisdiction to give custody of the said vehicle to the claimant. Although section 49 D is differently worded, yet its plain reading makes it clear that whenever intimation of initiation of confiscation proceedings is received by the Court, the Courts will have no jurisdiction to give custody of the said vehicle to the claimant. In view of these judgments of Supreme Court and clear provision of Statute, the judgment cited by the petitioner cannot be pressed into service. The Courts below have not committed any error of law in rejecting the prayer of the petitioner by the impugned orders. 10. Petition is merit-less and is hereby dismissed.