Both these petitions are not fixed for final hearing 'but with the consent of the parties, they were heard finally at this stage as the point involved can be disposed of at this stage alone.

In M.P. No. 1172/93 the petitioner is the owner of bus No. M.P. No. 13-C/0715. The petitioner also owned bus No. M.P. 13C 2640. The petitioner had a permit to ply the latter passenger bus on Nagda-Tal route. According to the petitioner he had obtained lawful permission for plying passenger bus No. M.P. 13C 0715 on this route from the R.T.O. Ujjain on 11.5.93. On 12.5.93 the bus was found by the Transport Inspector, Flying Squad Ujjain, respondent No. 1 carrying passengers at Tal Phata The driver of-the bus could not produce the permit which was said to have been taken on 11.5.93 to ply the bus on that route. The Flying Squad seized the vehicle and a penalty of Rs. 36,000/- was imposed. The vehicle is not being released because' of non-payment of penalty. The petitioner challenges the action as beyond the scope of Sec. 16 (3) of M.P. Motoryan Karadhan Adhiniyam (for short 'the Act').

In M.P. No. 1388/93 the petitioner owns a Passenger bus No. CII 3048. This bus was checked by the Flying Squad No.1, Indore on 19.8.93. It was seized alleging that it was plying without permit. A penalty of Rs. 18,000/- was imposed. The vehicle is not being released for non-payment of penalty. In this petition also the action is being challenged as not authorised by Sec. 16 (3) of the Act.

Sec. 16 (3) of the Act reads as under:

."The taxation Authority or any officer authorised by the State Govt. in this behalf may if it/he has reason to believe that a motor vehicle has· been or is being used without payment of tax, penalty or interest due, seize and detain such motor vehicle and for this purpose take or cause to be taken any step as may be considered proper for the temporary safe custody of such motor vehicle and for the realisation of tax due."

It is clear that the provision authorised only seizure and detention of the vehicle on allegations of evasion of tax. The petitioners allege that before imposing the penalty the procedure prescribed by law was not followed and the were not even · heard. The order of the Judicial Magistrate refusing to grant temporary custody of the vehicle to the petitioner Annexure G in M.P. No. 1172/93 shows that the learned Magistrate was under impression that Sec. 16 (3) of the Act provides for same substantive offence. It appears that under this misconception he has refused to grant custody. In other case, however, no approach has yet been made to the Magistrate for temporary custody.

From the general scheme of the Act it is obvious that the seizure and detention of a vehicle u/s. 16 is a preliminary 'step for taking penal action against the owner of the vehicle. There is no independent power given to the executive to confiscate the vehicle. The officers seizing the vehicle u/s. 16 (3) of the Act are, therefore, duty bound to' proceed in accordance with law to prosecute the owner of the vehicle. A criminal Court of competent jurisdiction would therefore, have jurisdiction to grant temporary custody of the vehicle under Cr.P.C. While doing so it would be entitled to see whether the penalty sought to be recovered bas been assessed lawfully after following the procedure prescribed by law.

We would, therefore, dispose of this petition by giving a direction that a Court of competent jurisdiction when approached, shall consider the prayer of grant of interim custody of the vehicle to the petitioner without being influenced by the earlier rejection of the application for grant of interim custody of the vehicle taking into account all the relevant circumstances including whether the mount is being recovered has been seized in accordance with law or not. The case stands accordingly disposed off.