M. K. MUKHERJEE, SANKAR BHATTACHARYYA

( 1 ) IN the night between March 1 and March 2, 1985 the Inspector-in-charge of Siliguri Police Station intercepted a truck bearing registration No. WGV 5669 near Sevoke Police Post and recovered 131 caroms of Bhutan made foreign liquor there from. As the six occupants of the trucks including the driver, failed to produce any license or authority to carry the liquor the Inspector-in-charge sized the liquor and the truck under a proper seizure list and arrested all the occupants. Thereafter, on March 3, 1985 he forwarded the arrested persons together with a report to the Sub-divisional Judicial Magistrate, Siliguri.

( 2 ) ON March 9, 1985 Sri Kamala Prosad, the petitioner herein, claiming himself to be the owner of the truck filed an application before the Sub Divisional Judicial Magistrate, Siliguri praying for return of the truck. The learned Magistrate rejected the application and aggrieved thereby the petitioner filed an application in revision before the learned sessions Judge, Darjeeling who directed return of the truck to the owner on a bond to the satisfaction of the Sub-Divisional Judicial Magistrate, Siliguri. In terms of the said order the petitioner furnished a bond before the learned Sub-divisional Judicial Magistrate, Siliguri for acceptance but he refused to accept it as it was brought to his notice by the Excise Department that the petitioner was not the registered owner of the vehicle.

( 3 ) AGEIST such rejection the petitioner moved an application in revision in this Court and after hearing the learned Advocates appearing for the State and the petitioner, this Court disposed of application on May 2, 1985 directing the learned Sub-Divisional Judicial magistrate, Siliguri to enquire as to whether the claim of the petitioner that he purchased the vehicle from its registered owner was genuine or not and to return the vehicle to the petitioner if the claim was genuine.

( 4 ) THEREAFTER on June 12, 1985, an application was filed on behalf of the State praying for modification of the earlier order of this Court dated May 2, 1985 on the ground that at the time the revision application filed by the petitioner was held and disposed of by the said order it was not brought to the notice of this Court that on March 6, 1985 a competent authority had passed an order under S. 78 (2) of the Bengal Excise Act 1909 ('act' for shirt) regarding custody of the truck in question and the said order was still in force. When the application filed by the state was taken up for hearing on July 26, 1985 in presence of the parties, this Court directed the State to show cause why the order purportedly passed under S. 78 (2) of the Act should not be set aside and in terms of the said direction the Said direction the State has shown cause.

( 5 ) IN opposing the application of the State for modification of the order dated 2. 5. 85 it has been contended on behalf of; the petitioner that the officer-on-Special Duty of the Excise. Directorate who passed the order on 6. 3. 85 was not empowered to pass any order under S. 78 (2) of the Act and consequently his order regarding custody of the truck were without jurisdiction. On the contrary, it has been submitted on behalf of the petitioner, that as the seizure of the truck by the police authority was reported to thee learned Sub-Divisional Judicial Magistrate, he had power under S. 457 of the Code of Criminal Procedure to entertain the application of the petitioner for return of the truck; and consequently on the rejection of the application by the Magistrate the Sessions Judge was competent to direction its return to the petitioner. On the other hand it has been contended on behalf of the State that the Officer-on Special Duty was duly empowered to exercise powers under S. 78 (2) of the Act and as such he could pass an order regarding custody of the vehicle and so long as the said order remained in force no order could be passed by any Court superseding the

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