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Madhya Pradesh High Court · body

2016 DIGILAW 597 (MP)

Narayan Sahu v. State Of M. P.

2016-07-22

C.V.SIRPURKAR

body2016
ORDER : Shri Bhupendra Shukla, counsel for the petitioner. Shri P. K. Pandey, Government Advocate for the respondent/State. 2. The case is posted for admission; however, since, all documents necessary for disposal of this miscellaneous criminal case are filed and the respondent is represented, the matter is admitted and heard finally by consent. 3. This miscellaneous criminal case under section 482 of the Code of Criminal Procedure is directed against the order dated 27-4-2016 passed by the Court of II Additional Sessions Judge, Damoh, in Criminal Case No. 10/2016, whereby the order dated 18-1-2016 passed by the Court of Judicial Magistrate First Class, Damoh in Criminal Case No. 2696/2015 rejecting the application filed by accused Narayan Sahu under section 451 of the Code of Criminal Procedure, was affirmed. 4. The facts necessary for disposal of this miscellaneous criminal case may briefly be summarized as hereunder : Petitioner Narayan and co-accused Chhatrapal are facing trial before the Judicial Magistrate First Class, Damoh under section 34(2) of the M.P. Excise Act, 1915. A TVS motorcycle No. MP34-MA-5156 was recovered from the possession of the petitioner/accused. The accused moved an application under section 451 of the Code of Criminal Procedure for release of aforesaid motorcycle in his temporary custody. The application was dismissed by learned Judicial Magistrate First Class on the sole ground that the proceedings for confiscation of aforesaid motorcycle are pending before the District Magistrate. 5. It appears from the impugned order that on the basis of letter No. 1302/2015 dated 3-12-2015, carbon copy whereof was placed on record of the trial Court, both the Courts below held that the S.H.O. has made an application to District Magistrate, Damoh, for confiscation of the aforesaid motorcycle; therefore, since, the proceeding for confiscation of the motorcycle were pending before the District Magistrate, they declined release of vehicle in temporary custody of the petitioner. 6. In this regard, it is relevant to take note of section 47-A(3)(a) and 47-D of the M.P. Excise Act, 1915 which read as hereunder : 47-A (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. to the Court having jurisdiction to try the offence on account of which the seizure has been made. 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 or intimated under clause (a) of sub-section (3) of section 47-A about the initiation of the proceedings for confiscation of seized property. 7. A conjoint reading of aforesaid two provisions makes it absolutely clear that the jurisdiction of the Magistrate to release the vehicle seized under section 34(2) of the Excise Act is not ousted simply because the concerned S.H.O. has written a letter to District Magistrate to initiate confiscation proceedings in respect of such vehicle. The jurisdiction would be barred only when the Collector sends an intimation about initiation of the proceedings for confiscation of seized conveyance to the Court having jurisdiction to try the offence on account of which the seizure has been made, in a form prescribed by the Excise Commissioner. Until and unless such intimation has been received, the jurisdiction of the Magistrate trying the case to make an order about disposal, custody etc., of such conveyance, is not barred. 8. A perusal of the impugned order reveals that learned Courts below have stayed their hands simply because copy of the application made by S.H.O. to the District Magistrate praying for initiation of confiscation proceeding, has been filed. Thus, the Courts below failed to exercise the jurisdiction which was vested in them under the law on erroneous interpretation of legal provisions. 9. In this regard, the judgments rendered by a co-ordinate benches of this Court in the case of Suresh vs. State of Madhya Pradesh, 2003(1) M.P.L.J. 638 and order dated 2-9-2011 passed by the bench of the High Court at Indore in M.Cr.C.No. 6528/2011 may profitably be referred to. 10. 9. In this regard, the judgments rendered by a co-ordinate benches of this Court in the case of Suresh vs. State of Madhya Pradesh, 2003(1) M.P.L.J. 638 and order dated 2-9-2011 passed by the bench of the High Court at Indore in M.Cr.C.No. 6528/2011 may profitably be referred to. 10. It may further be noted that from the copy of the registration certificate filed by the petitioner Narayan, it is clear that he is registered owner of motorcycle No. MP-34-MA-5156 and he is thus entitled to get the aforesaid vehicle in his temporary custody. 11. No useful purpose would be served by exposing the vehicle to elements, by letting it rot in the police station. 12. Consequently, this miscellaneous criminal case under section 482 of the Code of Criminal Procedure is allowed. The orders passed by the Courts below are set aside. 13. The seized motorcycle bearing registration No. MP-34-MA-5156 be released in interim custody of petitioner Narayan Sahu on furnishing personal bond in the sum of Rs. 1,00,000/- with one solvent surety in the same amount to the satisfaction of the trial Court for complying with following conditions : (1) The vehicle shall be produced before the trial Court or before the District Magistrate as and when directed. (2) The petitioner shall not alienate or part with the possession of the vehicle during the pendency of the proceeding for confiscation or criminal trial. (3) The external appearance of the vehicle shall not be changed in any manner so as to make it difficult to identify. C.C. as per rules.