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2016 Supreme(MP) 1098
IN THE HIGH COURT OF MADHYA PRADESH
C. V. Sirpurkar, J.
Narayan Sahu – Petitioner
Versus
State Of M. P. – Respondent
M. Cr. C. No. 10315 of 2016
Decided On : 22-07-2016
Advocate Appeared:
For the Petitioner: Bhupendra Shukla
For the Respondent: P. K. Pandey
The jurisdiction of the Magistrate to release seized conveyance is not ousted unless the Collector sends an intimation about the initiation of confiscation proceedings, as per the M.P. Excise Act, 1915.
Headnote:
Code of Criminal Procedure - Release of Seized Vehicle - M.P. Excise Act, 1915, Section 34(2), 47-A(3)(a), 47-D
Fact of the Case:
The petitioner and a co-accused were facing trial under section 34(2) of the M.P. Excise Act, 1915, and had filed an application for release of a seized motorcycle. The application was dismissed by the lower court on the grounds that confiscation proceedings were pending before the District Magistrate.
Finding of the Court:
The court found that the lower courts had erred in their interpretation of the law and held that the jurisdiction of the Magistrate to release the seized vehicle was not ousted simply because the concerned S.H.O. had initiated confiscation proceedings. The petitioner was entitled to the temporary custody of the vehicle, and the lower court orders were set aside.
Issues: The main issue was the interpretation of the M.P. Excise Act, 1915, and whether the lower courts had correctly applied the provisions regarding the release of seized conveyance.
Ratio Decidendi: The court held that the jurisdiction of the Magistrate to make an order about the disposal or custody of the seized conveyance was not barred unless the Collector sent an intimation about the initiation of confiscation proceedings to the Court. The lower courts had failed to exercise their jurisdiction based on an erroneous interpretation of the legal provisions.
Final Decision: The miscellaneous criminal case under section 482 of the Code of Criminal Procedure was allowed, and the seized motorcycle was ordered to be released in the interim custody of the petitioner, subject to specified conditions.
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. 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 conve
