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Madhya Pradesh High Court

Hamendra vs The State Of Madhya Pradesh on 1 May, 2018

MCRC 27556/17 (Hamendra vs. State of MP)                 1

           HIGH COURT OF MADHYA PRADESH
                    M.Cr.C. No.27556/2017
Indore: Dated:-01/05/2018:-
      Shri Rajat Raghuwanshi, learned counsel for the
petitioner.
      Shri Hemant Sharma, learned Public Prosecutor for the
respondent/State.
      With the consent of the parties, this petition is heard
finally.
                          ORDER

This is a petition for release of Mahindra Bolero bearing registration No.MP 09-CR-2377 seized in Crime No.536/2016 of Police Station Aerodrum, Distt. Indore under Section 34(2) and 44 of MP Excise Act, 1915.

2. Custody of the vehicle was refused by the learned trial Court considering the intimation of confiscation proceeding received from the Collector and bar created under Section 47-D of MP Excise Act, 1915. The order of the trial Court is confirmed vide order dated 04/02/2017 passed in Criminal Revision No.542/2017 by 1st Additional Sessions Judge, Indore on the same ground.

3. Quoting the judgment of the Supreme Court passed in State of M.P. vs. Madhukarrao reported in 2008(1) JLJ 427 and order passed by Co-ordinate Bench of this Court in Sardar Singh vs. State of M.P. in M.Cr.C. No.4240/15, dated 17/07/2015. The learned counsel for the petitioner pressed his request for release of vehicle.

4. In alternate, learned counsel prays that liberty be granted to file an appeal in terms of the order dated 17/07/2018 passed in Sardar Singh's case (supra). Relevant para-7 of Sardar Singh (supra) reads thus:-

"07. Further a revision also provided against the order of the appellate authority whereas Section 47-D of M.P. Excise Act, 1915 provides that there is a bar of the jurisdiction of the Court under certain circumstances. I find that the petitioner has already availed of the revision under the Cr.P.C. before the revisional authority. The application being under Sections 451 & 457 of the Cr.P.C. the petitioner has approached the Additional Sessions Judge, Agar. The revisional Court has upheld the views of the trial Court. I find that the petitioner has not availed of the appeal against the confiscation whereas it is also an admitted fact that the vehicle has already been subjected to confiscation proceedings before the Collector under the Excise Act, 1915. Then under these circumstances, I find that it would be more appropriate to remand the matter to the competent authority under Section 47-B of the MP Excise Act. Needless to say that the limitation if any shall not stand in the way of the petitioner making a proper appeal. The impugned order are set aside since an alternative and efficacious remedy was provided under the Special Act of M.P. Excise Act, 1915 and since there is a bar of jurisdiction under Section 47-D, it would be more fruitful to remand the matter to the appellate Court for a fresh decision on the merits of the application. Needless to say that the authorities relied on by the Counsel may be considered by the appellate Court. However, the said citations pertain to property seized under the Forest Act and may be para materia with the provisions of the Excise Act. Needless to say that the appellate Authority shall arrive on its own conclusion in accordance with the provisions of law."

5. Per contra, learned Public Prosecutor has opposed the prayer and vehemently argued that in view of the bar created vide Section 47-D of the MP Excise Act and the intimation given by the District Magistrate to the concerned Judicial Magistrate regarding initiation of confiscation proceeding, neither the vehicle can be released nor any liberty can be granted.

6. The fact that the vehicle is seized for the offence punishable under Section 34(2) of the MP Excise Act and after the seizure, proceedings for confiscation of the vehicle were initiated before the District Magistrate and the same were properly intimated to the concerned Judicial Magistrate have not been controverted. Therefore, in view of the bar created by Section 47-D of the Excise Act, the jurisdiction of the Judicial Magistrate for releasing the vehicle on supurdagi was seized and, therefore, both the Courts below have not committed any error in declining to accede the prayer of the petitioner.

7. Accordingly, this petition is dismissed.

(Virender Singh) Judge soumya Digitally signed by Soumya Ranjan Dalai Date: 2018.05.03 15:30:12 +05'30'