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IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH INDORE
VIRENDER SINGH, J.
Anil Dhakad S/o Benisingh Dhakad - Petitioner
Versus
State of M.P. - Respondents
M.Cr.C. No.6500 of 2018, M.Cr.C. No.7171 of 2018, M.Cr.C. No.7590 of 2018
Decided On : 05-07-2018
Jurisdiction - M.P. Excise Act, 1915 - Section 47-D
Fact of the Case:
The petitioner sought custody of a vehicle seized for carrying illegal liquor. The lower courts dismissed the application citing Section 47-D of the M.P. Excise Act, 1915, which bars the court's jurisdiction upon receiving intimation of confiscation proceedings from the Collector.
Finding of the Court:
The court found that the lower courts correctly dismissed the plea for custody of the vehicle, as the concerned Magistrate had information about the initiation of confiscation proceedings from the Collector at the time of considering the application.
Issues: The core issue was whether the court is justified to grant an opportunity of hearing to the prosecution after the filing of the application for custody of a vehicle seized for contravention of the M.P. Excise Act, 1915.
Ratio Decidendi: The court held that the relevant date for the applicability of the bar created by Section 47-D of the Act is the date of hearing the application or passing the order, not the date of filing the application. The court also emphasized the principle of natural justice, Audi alteram partem, which includes the rights of a party to confront the witnesses against them and to have a fair opportunity to challenge the evidence presented by the other party.
Final Decision: The petitions were dismissed as the court found no grounds for interference in the lower courts' orders.
Heard.
2. In all these three petitions similar questions have been raised by the petitioners and replied by the State therefore, they all are being decided by this common order. For the sake of convenience facts have been taken from M.Cr.C. No.6500/2018.
3. The petitioner has assailed order dated 30.01.2018 passed in Cr.R.No.27/18 by the Xth Additional Sessions Judge, Ujjain, whereby the learned Court has maintained the order dated 13.12.2017 passed by the Judicial Magistrate First Class, Ujjain in Crime No. 871/2017 registered at Police Station Neelganga, Ujjain
4. The learned Judicial Magistrate First Class dismissed the application of the petitioner for custody of Maruti Swift Dezire vehicle bearing registration No. MP04-CF-0551 seized by the Police Station Neelganga, Ujjain on 06.12.2017 in Crime No. 871/2017 for the offence under Section 34 (2) of the M.P. Excise Act, 1915 (here-in-after referred to as “the Act, 1915”) for carrying 171 bulk liter illegal country made liquor without any license observing that after receiving initiation of confiscation proceedings from the collector, the jurisdiction of the Court to release such vehicle is barred by Section 47-D of the Act, 1915.
5. Facts in brief are that on 06.12.2017, acting on an intelligence input, the Police intercepted the said Maruti Swift Dezire and on search found 171 bulk liters illegal liquor in the car. The Police seized the said liquor along with car and registered the crime as stated above. On the same day i.e. 06.12.2017, the petitioner filed an application for custody of the vehicle and made a request to fix the hearing on the next day. His request was turned down by the learned Magistrate observing that it will be too early to fix the hearing as within this short period it is not possible to complete the procedure to send the intimation to the collector or to take a decision with regard to initiation of the proceedings for confiscation of the seized vehicle. The learned Magistrate called the case diary and fixed the case for hearing of this application on 12.12.2017 and thereafter for 13.12.2017 as on 12.12.2017, the advocates were abstaining from work and on 13.12.2017, after hearing the parties dismissed the application, observing that an initiation of confiscation proceedings is received vide letter No./Excise/Crime/Confiscation/39/2017/3147 Ujjain, dated 12.12.2017 sent by Collector to the Chief Judicial Magistrate, therefore, in view of provision of Section 47D of the Act, 1915, it's jurisdiction to pass an order for custody of the vehicle is seized.
6. The order of the Judicial Magistrate was maintained by the Revisional Court.
7. Contention of the learned counsel for the petitioner is that learned Magistrate and also the Revisional Court have grossly erred in not considering the legal position that the Court cannot call for or grant time or wait for intimation of confiscation proceedings. If at the time of moving application, no intimation is received by the court regarding confiscation proceeding of vehicle, then the right accrues in favour of the applicant for interim custody of the seized vehicle. The approach of the learned Court is erroneous, against the law and make the legal provisions otiose and also violative of law laid down by this court. Besides, other grounds like the petitioner is suffering loss, vehicle is kept at Police Station and subjected to vagaries of nature, no useful purpose shall be served by keeping the vehicle in custody, no ground for apprehension of running away or tempering with the vehicle or the evidence have also been taken by the petitioner.
8. Learned counsel for the petitioner has placed reliance on Sunderbhai V/s. State of Gujrat reported in AIR 2003 SC 638, wherein the Hon'ble the Supreme Court has directed to dispose of the application for custody of article expeditiously and judiciously and has issued some guide lines in this regard.
9. Per contra, learned Public Prosecutor has opposed the application. It is sub
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