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2015 DIGILAW 3 (CHH)

Anil Kumar Narmada v. State of Chhattisgarh

2015-01-06

SANJAY K.AGRAWAL

body2015
ORDER (1) The central legal issue that falls for consideration in this petition is whether the Court having jurisdiction to try offences covered by clause (a) or (b) of sub-Section (1) of Section 34 will have the jurisdiction to grant custody of the vehicle seized, after it has received information from the Collector under clause (a) of sub-Section (3) of Section 47A of the Chhattisgarh Excise Act, 1915 (henceforth ‘the Act of 1915’) about the initiation of the proceedings for confiscation of seized vehicle ? (2) The petitioner is registered owner of four wheeler (Bolero) bearing registration No. CG-04-HB-2513. The said vehicle has been seized by the Police Station – Saraipali in connection with Crime No. 281/14 for commission of offence punishable under Section 34(2) of the Act of 1915 as the said vehicle was found involved in transporting 126 liters of country made liquor. (3) The Prosecuting Agency, after seizure of the vehicle, sent intimation to the Collector, Mahasamund; and the Collector, Mahasamund registered Revenue Case No. 206-B/121 year 2013-14 under Section 47-A of the Act, 1915; and Collector in exercise of power conferred under clause (a) of sub-Section (3) of Section 47-A of the Act of 1915 sent an intimation about the initiation of the proceedings for confiscation of the seized vehicle to the trial Magistrate having jurisdiction to try the offences on 28th August, 2014. (4) The petitioner made an application under Section 457 of the Code of Criminal Procedure, 1973 (henceforth ‘the Code’) stating inter alia that he, being the registered owner of the vehicle, is entitled for custody of the vehicle in question as it is lying unused in the Police Station and it is likely to be damaged if the custody is not granted to the petitioner herein, which is opposed by the prosecution on the ground that petitioner is not entitled for custody in view of express bar contained in Section 47-D of the Act of 1915 as it has already been intimated by the Collector to the trial Magistrate about the initiation of the confiscation proceedings. (5) Learned trial Magistrate, by its order dated 18.09.2014, rejected the application filed by the petitioner herein for custody of the vehicle holding that the confiscation proceedings has already been initiated by the Collector under Section 47-A of the Act, 1915 and intimation has been sent to trial Court having jurisdiction to try the offences, therefore, interim custody of the said vehicle cannot be granted to the petitioner. (6) Being aggrieved & dissatisfied with the order of learned Magistrate, petitioner preferred revision before the 2nd Additional Sessions Judge, Mahasamund. (7) The revisional Court, by its impugned order dated 12.11.2014, concurred with the findings recorded by trial Magistrate finding inter alia that in exercise of power conferred under Section 47-A (3) (a) of the Act of 1915, Collector has already sent an intimation on 28.08.2014 to the trial Magistrate having jurisdiction to try the offences on account of which seizure has been made; and in view of specific bar contained in Section 47-D of the Act of 1915, no such custody can be granted to the petitioner herein and dismissed the revision petition. (8) The petitioner calls in question the above-stated impugned order whereby his application for custody of the vehicle has been rejected by the trial Court, and the same is affirmed by the Revisional Court in view of the provisions contained in Section 47-D of the Act of 1915. (9) Appearing for the petitioner, Mr. Raghvendra Pradhan, learned counsel would submit that mere initiation of the proceedings for confiscation of vehicle in question would not bar the jurisdiction of the trial Magistrate to direct the custody of the seized vehicle for offence under Section 34(2) of the Act of 1915 and, therefore, impugned order be set aside and the custody of the vehicle in question be granted to the petitioner as he is ready and willing to furnish supurdnama bond and he will abide by the conditions, if any imposed by this Court. The counsel in support of his submission relied upon the decision of this Court in Cr.M.P. No. 236 of 2013 (Sujeet Kumar Khandekar Vs the State of Chhattisgarh) decided on 5th March, 2013. (10) Appearing for the State, Mr. The counsel in support of his submission relied upon the decision of this Court in Cr.M.P. No. 236 of 2013 (Sujeet Kumar Khandekar Vs the State of Chhattisgarh) decided on 5th March, 2013. (10) Appearing for the State, Mr. D.K. Gwalre, learned State counsel would submit that the Collector after having initiated the confiscation proceeding of the seized vehicle, has already sent an intimation to the trial Magistrate as provided in clause (a) of sub-Section 3 of Section 47-A of the Act 1915; and in view of specific bar under Section 47-D of the Act, which clearly bars the jurisdiction of the Court having jurisdiction to try the offences covered by sub-Section (1) of Section 34 of the Act to make order about the custody of the seized vehicle after receiving intimation from the Collector under Clause (a) of sub-Section (3) of Section 47-A of the Act of 1915 about the intimation of the initiation of the proceeding for confiscation of seized vehicle, the order passed by the trial Court rejecting the application for custody of the vehicle as affirmed by the revisional Court is based on the material available on record, which does not call for any interference by this Court in exercise of inherent jurisdiction under Section 482 of the Code. (11) I have heard learned counsel for the parties and given thoughtful consideration to the submission so raised and also perused the material available on record with utmost circumspection. (12) After hearing learned counsel for the parties and after perusal of the record following facts would emerge :- (i) The petitioner is the registered owner of the seized vehicle bearing registration No. CG-04/HB-2513 and the said vehicle was seized by the Police Station, Saraipali in connection with Crime No. 281/14 on 16.06.2014 for commission of offence punishable under Section 34(2) of the Act of 1915 transporting 126 liters of country made liquor. (ii) The Collector, Mahasamund has initiated the proceeding for confiscation of the said vehicle vide Revenue Case No. 206-B/121 year 2013-14; and in exercise of power conferred under clause (a) of sub-Section (3) of Section 47-A of the Act of 1915 sent an intimation about the initiation of the proceedings for confiscation of the seized vehicle to the trial Magistrate having jurisdiction to try the offences on 28th August, 2014, on account of which seizure has been made. (iii) Thereafter, petitioner made an application for custody of vehicle in question before the trial Magistrate. (13) At this stage, it would be proper to notice Section 47-D of the Act 1915, which reads thus :- “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 47A about the initiation of the proceedings for confiscation of seized property.” (14) Section 47-D was inserted in the Chhattisgarh Excise Act, 1915 by the Amendment Act No. 22 of 2000 with effect from 4.8.2000. (15) A plain and careful perusal of the Section 47-D of the Act, 1915 would show that it is the disabling provision and overriding provision to any other law for the time being in force; and once the Court having jurisdiction to try offences covered by clause (a) or (b) of sub-Section (1) of Section 34 receives information/intimation from the Collector under clause (a) of Sub-Section 3 of Section 47-A of the Act, 1915 about the initiation of proceedings for confiscation of the seized property, then the Court shall not make any order about the disposal/custody of the seized property including conveyance, materials, intoxicant etc. (16) In Divisional Forest Officer Vs. G.V. Sudhaker Rao & others, AIR 1986 SC 328 , their Lordships of Supreme Court has observed that the general provisions of Sections 452 and 457 of the Code must necessarily yield where a statute makes a special provision with regard to forfeiture of the property and its disposal. Relevant paragraph of the report states as under:- “The change in the law was brought about with a view to prevent the growing menace of ruthless exploitation of Govt. Forest by illicit felling of teak and other valuable forest produce by unscrupulous traders, particularly from Reserved Forests by providing for a machinery for confiscation of illegally felled trees or forest produce by forest authorities…. Forest by illicit felling of teak and other valuable forest produce by unscrupulous traders, particularly from Reserved Forests by providing for a machinery for confiscation of illegally felled trees or forest produce by forest authorities…. There was no provision in the Act enabling the Forest Officers to confiscate such timber or forest produce and implements etc. used for committing forest offences even in a case where he was satisfied that a forest offence had been committed. In view of this, the Forest Deptt. Was finding it difficult to curb the forest offences effectively and quickly in spite of the fact that large scale smuggling of forest produce was on the increase. Hence; it was thought necessary to empower officials of the Forest Deptt. Seizing any property under Sub-section(1) of Section 44, instead of merely making a report of seizure to the Magistrate also to order confiscation of timber of forest produce seized with all the tools, boats, vehicles, etc. used in committing such offences. The intendment of the Legislature in enacting Act 17 of 1976 was, therefore, to provide for two separate proceedings before two independent forums in the Act, one for confiscation by a departmental authority exercising quasi-judicial powers conferred under Sub-section (2-A) of Section 44 of the goods forming the subject-matter of the offence and the other for the trial of the person accused of the offence so committed……. It would, therefore, appear that there can be no conflict of jurisdiction between the authorised officer acting under Sub-section (2-A) of Section 44 of the Act to direct confiscation of the property seized under Sub-section (1) on his being satisfied that a forest offence has been committed and the Magistrate making an order for confiscation of the property so seized conviction of an accused for a forest offence under Section 45. The power of confiscation conferred on the auhorised officer under Sub-section (2-A) of Section 44 of the Act is separate and distinct from the power of the Magistrate to direct confiscation on conviction of an accused under Section 45……………” (17) Extremely recently, their Lordships of Supreme Court in case of State (NCT of Delhi) Vs. The power of confiscation conferred on the auhorised officer under Sub-section (2-A) of Section 44 of the Act is separate and distinct from the power of the Magistrate to direct confiscation on conviction of an accused under Section 45……………” (17) Extremely recently, their Lordships of Supreme Court in case of State (NCT of Delhi) Vs. Narender, JT 2014 (1) SC 274, while considering Section 61 of the Delhi Excise Act, 2009, which bars the Criminal Court to make any order with regard to the property used in committing any offence and seized under the Delhi Excise Act, 2009, and held that when there is express bar under the Delhi Excise Act, 2009, then the provisions of Code of Criminal Procedure has to give way to the provisions of the Special Act and held as under :- “11……….In our opinion, the general provision of Section 451 of the Code with regard to the custody and disposal of the property or for that matter by destruction, confiscation or delivery to any person entitled to possession thereof under Section 452 of the Code or that of Section 457 authorising a Magistrate to make an order for disposal of property, if seized by an officer and not produced before a criminal court during an inquiry or trial, however, has to yield where a statutes makes a special provision with regard to its confiscation and disposal. We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation or release to its rightful owner. The requirement of production of seized property before the Deputy Commission under Section 59 (1) of the Act is, notwithstanding anything contained in any other law, and, so also is the power of confiscation. Not only this, notwithstanding anything to the contrary contained in any other law for the time being in force, no court, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in commission of any offence under the Act. In the present case, the Legislature has used a non-obstante clause is a legislative device to give effect to the enacting part of section in case of conflict over the provisions mentioned in the non-obstante clause. In the present case, the Legislature has used a non-obstante clause is a legislative device to give effect to the enacting part of section in case of conflict over the provisions mentioned in the non-obstante clause. Hence, Sections 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof. The view which we have taken finds support from a judgment of this Court in the case of State of Karnataka v. K.A. Kunchinddammed, (2002) 9 SCC 90 .” (18) The Full Bench of the High Court of Madhya Pradesh in case of Shrish Agrawal Vs. State of M.P. and Anr., 2003 (2) MPHT 97 , while examining the constitutional validity of Section 47-D of the Act, has held that the provisions regarding confiscation of seized intoxicants and articles; debarring the criminal court from ordering disposal of the property as well as the restriction on the powers of the appellate authority to stay the order of confiscation is a valid piece of legislation. (19) Bearing in mind the principles of law flowing from the decisions of their Lordships of the Supreme Court in the above noted cases (Supra) and in view of the specific bar contained in Section 47-D of the Act, 1915, if the facts of the present case are examined it would appear that the petitioner’s vehicle was found involved in the commission of the excise offences under Section 34 of the Act, 1915 and the Collector having initiated proceedings for confiscation of the said vehicle under Section 47A of the Act, 1915 and intimated to the trial Court having jurisdiction to try the offences under clause (a) of sub-Section 3 of Section 47-A of the Act, 1915 about the initiation of the proceedings for confiscation of the seized vehicle and, as such, the provisions of Section 47-D of the Act, 1915 squarely attracts expressly barring the jurisdiction of the trial Magistrate to grant interim custody under Section 457 of the Code, the trial Magistrate ceased to have jurisdiction to make order from the date when he received intimation in the preset case i.e. 28.8.2014 to make any order about the disposal of the said vehicle and, as such, the trial Magistrate has rightly held that the Court has no jurisdiction to grant custody after initiation and intimation of the said confiscation proceedings to the Court having jurisdiction; and the learned Additional Sessions Judge is absolutely justified in affirming the order passed by the trial Magistrate refusing to interfere with the said order, as such, order passed by the learned Magistrate and duly affirmed by the revisional Court is based on the material available on record, which does not call for any interference by this Court in exercise of inherent power under Section 482 of the Code of Criminal Procedure. Further, the judgment relied upon by Mr. Pradhan passed by this Court in Cr.M.P. No.236 of 2013 has not considered the express bar of Section 47-D of the Act, 1915, therefore, that judgment is clearly distinguishable. (20) As a fall out and consequence of the aforesaid discussion, the petition is held to be devoid of merit and is, therefore, dismissed. Accordingly no order as to costs.