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PATNA HIGH COURT
K.Sahai, J.
State Of Bihar
Versus
Ramyas Thakur
Criminal Reference No. 129 of 1963 ;
Decided On : MARCH 09, 1964
CRIMINAL PROCEDURE CODE - SECTIONS 516-A AND 523 - EXCISE ACT - SECTIONS 5(2), 66, 68(1)(B), 70 AND 85(1) - RELEASE OF PROPERTY SEIZED UNDER THE EXCISE ACT - POWER OF MAGISTRATE.
Fact of the Case:
The Special Excise Sub-Inspector of Raxaul detected contraband Nepal Ganja being transported in a truck. The driver and three other persons were arrested, and the truck was seized. The owner of the truck, Ramyas Thakur, a minor, was also made an accused. The Second Officer, Mr. D. Chandra, ordered the release of the truck on execution of a security bond. The permanent Sub-divisional Magistrate rescinded this order, directing that the truck remain in the custody of the Superintendent of Excise. Mr. Chandra then passed another order releasing the truck to Ramyas Thakur through his guardian and father, Jamuna Thakur. The Sessions Judge of Motihari referred the case to the High Court, recommending that Mr. Chandra's order be set aside.
Finding of the Court:
The High Court held that Mr. Chandra did not have the power to order the release of the truck under Section 523 of the Code of Criminal Procedure. The Court noted that Section 523 applies to property seized under Sections 51 and 550 of the Code, but the Excise Act contains its own provisions for the seizure and confiscation of property. The Court also observed that Mr. Chandra should have avoided acting in an unseemly manner by passing an order contrary to the one passed by the Sub-divisional Magistrate.
Issues: 1. Whether a Magistrate can order the release of property seized under the Excise Act under Section 523 of the Code of Criminal Procedure? 2. Whether Mr. Chandra acted properly in passing an order for the release of the truck after the Sub-divisional Magistrate had rescinded his previous order.
Ratio Decidendi: 1. Section 523 of the Code of Criminal Procedure applies to property seized under Sections 51 and 550 of the Code, but the Excise Act contains its own provisions for the seizure and confiscation of property. 2. Section 5(2) of the Excise Act provides that the provisions of the Code of Criminal Procedure apply to arrests, detentions, searches, summonses, warrants, and the production of persons arrested under the Act, but this does not include orders for the disposal of property. 3. Section 85(1) of the Excise Act provides that the provisions of the Code apply, so far as may be, to arrests, detentions, searches, summonses, warrants, and the production of persons arrested under the Act, but this does not include orders for the disposal of property. 4. Section 66 of the Excise Act provides for the properties which are liable to confiscation, including animals, carts, vessels, rafts, or other conveyances used in carrying excisable articles if the owner is proved to have been implicated in the commission of the offence. 5. Section 70 of the Excise Act gives power to excise officers and persons empowered by the State Government to seize and detain any article which they have reason to believe is liable to confiscation under the Act.
Final Decision: The High Court accepted the reference and set aside Mr. Chandra's order dated 10th September 1963, releasing the truck.
K.Sahai, J.
1. On the 15th/16th May, 1963, the Special Excise Sub-Inspector of Raxaul detected contraband Nepal Ganja being transported in a truck, bearing registered No. BRF 714. On being weighed, the ganja was found to be 31 maunds 28 seers. The Sub-Inspector arrested the driver and three other persons, who were travelling in the truck, and he also seized the truck. Subsequently, Ramyas Thakur, the owner of the truck, who is said to be a minor, was also made an accused in the case.
2. By an order dated the 12th June, 1963, Mr. D. Chandra, the Second Officer, who was then dealing with the files of the Subdivisional Magistrate, directed that the track be released on execution of a security bond of Rs. 8,000.00 with four sureties of Rs. 2,000.00 each. This order did not indicate clearly the person to whom the truck was to be released. The senior District Prosecutor moved Mr. Chandra for cancelling his previous order; but, by his order dated the 14th June, 1963, he rejected that prayer. In view of the vagueness of the order, however, the truck could not be released, and, in the meantime, a petition was moved before the permanent Sub-divisional Magistrate on the 17th June, 1963. He passed an order on the same date, rescinding Mr. Chandras order dated the 12th June, and observed in the course of the order that the vehicle in question was a material exhibit, and its release might create complications. He also directed that the matter might be heard again, and that, until then, the vehicle would remain in the custody of the Superintendent of Excise.
3. Another petition was moved for release of the truck before Mr. Chandra, and, by his order dated the 10th September, 1963, he directed it to be released to Ramyas Thakur through his guardian and father, Jamuna Thakur, on his furnishing a security bond of Rs. 8,000/-with four sureties of Rs. 2,000.00 each.
4. The Sessions Judge of Motihari has made this reference with the recommendation that Mr. Chandras order dated the 10th September, 1963, be set aside.
5. The learned Sessions Judge has expressed the opinion that the learned Magistrate was not empowered either under Sec. 516-A or Sec. 523 of the Code of Criminal Procedure to order release of the truck. Appearing in support of the reference, the learned Standing Counsel has submitted that this opinion is correct. On the other hand, Mrs. Lall has urged that, though Sec. 516-A has no application until the case goes to Court, the Magistrates order for release of the truck has been legally passed under Sec. 523 of the Code. Orders of the learned Magistrates are not at all helpful because they purport to have been passing orders on applications for bail for release of the truck. It is manifest that no application or order for bail can be filed or passed with regard to the release of a property. It is necessary, however, to decide whether Sub-section (1) of Sec. 523 applies. That sub-section reads:
"The seizure by any police-officer of property taken under Sec. 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property."
6. The procedure laid down in the Code of Criminal Procedure is applicable in cases under the Excise Act also for Sec. 5(2) of that Code provides as follows:
"All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
7. In view of this sub-section, an order under Sec. 523 cannot come within the
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