1968 Supreme(MP) 103

HIGH COURT OF MADHYA PRADESH
Shivdayal, J.
State of M.P.
v.
Narayansingh
Cr. Revn. No. 364 of 1968 against revisional order passed by Shri G.S. Chowhan, Sessions Judge, Rewa, modifying the order passed by Shri G.K. Kulshreshtha, Addl. District Magistrate (Judicial), Rewa
Decided on : 20-7-1968

Headnote:(1) Excise Act, 1915 (MP)-S. 61-no bar to the exercise of power under section 523 of the Criminal Procedure Code by the Magistrate-Criminal P.C., 1898-S. 523.

       It is true that section 61 of the M.P. Excise Act imposes a limitation on the Magistrate taking cognizance of an offence under any of the sections stated therein except on a complaint or report of the Collector or of an Excise Officer authorised by him in this behalf. Cognizance of an offence is taken by the Magistrate in accordance with section 190, Cr. P. C. But that section does not limit the powers of the Magistrate under section 523 of the Code to make an order respecting disposal of the property seized by a Police Officer. Where an enquiry or trial has not commenced, section 61 of the M.P. Excise Act is no bar to the exercise of powers under section 523, Cr. P. C. 1963 JLJ 155 referred to. [Paras 6 & 7]

       (2) Criminal P.C., 1898-Ss. 5 (2) & 523-provision of the Code when applicable to cases under the M.P. Excise Act-section 523 applicable to cases under the Act-procedure under the Code when excluded.

       The provisions of section 523, Cr. P. C, become applicable to the cases under the M.P. Excise Act, by virtue of section 5 (2) of the Code.

       The law relating to trial of offences under special or local law, is as follows–

       (i) Where a complete procedure is provided in any enactment for the trial of an offence under a special or local law, that procedure must be followed and not the one prescribed by the Code of Criminal Procedure;

       (ii) Where an enactment provides a special procedure only for some matters, such procedure must be followed as regards those matters only; and in regard to other matters on which that enactment is silent, the provisions of the Code of Criminal Procedure must be applied; and

       (iii) Where there is no enactment prescribing the procedure for dealing with an offence under a special or local law, the procedure laid down in the Code of Criminal Procedure must be applied. (1955) 1 SCR 1444 & ILR (1960) Bom. 692 relied on. [Para 8]

       (3) Excise Act, 1915 (MP)-S. 48-scope of-is not analogous to section 523, Cr.P.C.

       Under section 48 of the M.P. Excise Act, the Collector has the power to release any property on payment of the value as estimated by him and that power can be exercised by him so long as the Magistrate has not passed an order of confiscation. But, this merely confers a power to substitute money value for the property which has been seized as liable to confiscation. It is obvious enough that this power can be exercised when the Collector accepts to compound an offence. [Para 9]

       Where a property has been seized as being liable to be confiscated under the provisions of that Act and the question is where that property should be kept or in whose custody it should be placed until an inquiry or trial begins, section 48 of the Excise Act is inapplicable, and the question must be dealt with under section 523, Criminal Procedure Code. Section 48 of the Excise Act does not correspond, nor is analogous to section 523, Criminal Procedure Code. In the absence of any provision in any special enactment, section 523, Criminal Procedure Code truly comes into play. [Para 10]

       (4) Criminal P.C., 1898-Ss. 5 (2) & 523-words "dealing with an offence"-provisions of section 523-can be applied on the basis of section 5 (2).

       The language of section 5 (2) of the Code is comprehensive enough to include every matter connected with an offence which comes before the criminal Court, even apart from investigation, enquiry or trial.

       Entering into any question connected with an offence is "dealing with" the offence within the meaning of section 5 (2), Criminal Procedure Code. Therefore, entering into a question of custody or disposal of property in respect of which it is alleged that an offence has been committed, is "otherwise dealing with" that offence within the meaning of the Code, and the provisions of the Code will apply subject to any special enactment regulating such question. AIR 1964 Pat. 416 dissented from. [Para 11]

       (5) Criminal P.C. 1898-S. 523-scope of-property liable to be confiscated-may be dealt with-discretion how to be exercised.

       There is nothing in section 523 which excludes its application to a property which is liable to confiscation; for instance, a contraband article. In the absence of any such fetters, it cannot be said that the Court has no jurisdiction to make an order regarding disposal of property seized, even if under the law it is liable to confiscation on proof of certain facts. The matter is discretionary and the Court has to exercise its discretion judicially, as any other discretion. For example, in the case of opium or fire arms, the Court might well exercise its discretion in not entrusting it to any private individual. On the other hand, in the case of a property which is used merely as conveyance or any goods which are liable to deterioration, the Court might make a suitable order for disposal of the property. Thus, the question is one of exercise of discretion, not of jurisdiction. The conferral of power to seize or detain any property, which is liable to confiscation, does not mean that the Court cannot make a suitable order for its disposal under section 523, or for the matter of that, under section 516-A or section 517, Criminal Procedure Code. [Para 12]