Patna High Court
The State vs Ramyas Thakur on 9 March, 1964
Equivalent citations: AIR1964PAT416, 1964CRILJ331, AIR 1964 PATNA 416, 1964 BLJR 578
ORDER K. Sahai, J.
1. On the 15th/16th May, 1963, the Special Excise Sub-Inspector of Raxaul detected contraband Nepal Ganja being transported in a truck, bearing registered No. BRF 714. On being weighed, the ganja was found to be 31 maunds 28 seers. The Sub-Inspector arrested the driver and three other persons, who were travelling in the truck, and he also seized the truck. Subsequently, Ramyas Thakur, the owner of the truck, who is said to be a minor, was also made an accused in the case.
2. By an order dated the 12th June, 1963, Mr. D. Chandra, the Second Officer, who was then dealing with the files of the Subdivisional Magistrate, directed that the track be released on execution of a security bond of Rs. 8,000/- with four sureties of Rs. 2,000/- each. This order did not indicate clearly the person to whom the truck was to be released. The senior District Prosecutor moved Mr. Chandra for cancelling his previous order; but, by his order dated the 14th June, 1963, he rejected that prayer. In view of the vagueness of the order, however, the truck could not be released, and, in the meantime, a petition was moved before the permanent Sub-divisional Magistrate on the 17th June, 1963. He passed an order on the same date, rescinding Mr. Chandra's order dated the 12th June, and observed in the course of the order that the vehicle in question was a material exhibit, and its release might create complications. He also directed that the matter might be heard again, and that, until then, the vehicle would remain in the custody of the Superintendent of Excise.
3. Another petition was moved for release of the truck before Mr. Chandra, and, by his order dated the 10th September, 1963, he directed it to be released to Ramyas Thakur through his guardian and father, Jamuna Thakur, on his furnishing a security bond of Rs. 8,000/-with four sureties of Rs. 2,000/- each.
4. The Sessions Judge of Motihari has made this reference with the recommendation that Mr. Chandra's order dated the 10th September, 1963, be set aside.
5. The learned Sessions Judge has expressed the opinion that the learned Magistrate was not empowered either under Section 516-A or Section 523 of the Code of Criminal Procedure to order release of the truck. Appearing in support of the reference, the learned Standing Counsel has submitted that this opinion is correct. On the other hand, Mrs. Lall has urged that, though Section 516-A has no application until the case goes to Court, the Magistrate's order for release of the truck has been legally passed under Section 523 of the Code. Orders of the learned Magistrates are not at all helpful because they purport to have been passing orders on applications for bail for release of the truck. It is manifest that no application or order for bail can be filed or passed with regard to the release of a property. It is necessary, however, to decide whether Sub-section (1) of Section 523 applies. That sub-section reads:
"The seizure by any police-officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property."
6. The procedure laid down in the Code of Criminal Procedure is applicable in cases under the Excise Act also for Section 5(2) of that Code provides as follows:
"All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
7. In view of this sub-section, an order under Section 523 cannot come within the meaning of the words, investigated, inquired into, tried and otherwise dealt with'. Mrs. Lall has laid stress upon the words 'otherwise dealt with', and has argued that this will include an order under Section 523 also. I am unable to agree. The words refer to offences, and it cannot be said that an order for disposal of property under Section 523 (1) is an order dealing with an offence. That being so, it is clear that a Magistrate cannot pass an order under Section 523 in a case under the Excise Act on the basis of Sub-section (2) of Section 5.
8. Section 85(1) of the Excise Act provides that the provisions of the Code would apply, so far as may be, to arrests, detentions and searches made, summonses and warrants issued, and the production of persons arrested under this Act. Sections 86, 86-A and 87 of the Excise Act makes some special provisions relating to cases under that Act. None of these sections empowers a Magistrate to pass an order under Section 523.
9. Another reasoning may also be considered. Section 523 (1) lays down that an order under that Sub-section may be passed with regard to property taken under Section 51, and thereafter the section reiterates the words used in Sec, 550 relating to seizure of property by a police officer. This appears to show that an order under Section 523 can be passed in respect of property seized under Sections 51 and 550 of the Code. On the other hand, Section 66 of the Excise Act provides for the properties which are liable to confiscation. Among those properties are animals, carts, vessels, rafts or other conveyances used in carrying excisable articles provided the owner of these things is proved to have been implicated in the commission of the offence. Section 70 gives power to excise officers and persons empowered by the State Government among other matters, to seize and detain any article which he has reason to believe to be liable to confiscation under the Act. Section 523 makes no reference to the seizure of any property which is liable to confiscation.
10. For the reasons which I have given above, I am of opinion that Mr. Chandra could not pass his order dated the 10th September, 1963, under Section 523 of the Code of Criminal Procedure. It is unnecessary to consider whether he could pass the order under Section 68 (1) (b) of the Excise Act because he has not directed release of the truck on payment of a sum fixed by him.
11. Assuming for the sake of argument, however, that Mr. Chandra could pass an order for release of the truck under Section 523 of the Code of Criminal Procedure, it seems to me that he should not have passed such an order on the 10th September, 1963. He had previously passed an order for the release of the truck, and the permanent Sub-divisional Magistrate had rescinded that order. Officers should avoid acting in an unseemly manner and in entering publicly into a controversy with one another. As the Subdivisional Magistrate had passed an order whereby he had refused to release the truck on the ground that it was a material exhibit, Mr. Chandra could have left the parties to approach superior courts, instead of passing an order contrary to the one passed by the Sub-divisional Magistrate.
12. For the reasons given above, I accept the reference, and set aside the order of Mr. Chandra dated the 10th September, 1963. I may mention at this stage that the learned standing Counsel has informed me that a report for prosecution of the accused persons has already been submitted before the Court. When the case is transferred for trial to a Judicial or Munsif Magistrate, it will be open to the opposite party to file an application under Section 516-A before him. That section provides that, when an inquiry or trial is pending before a Criminal court, that Court may make such order as it thinks fit for the proper custody of the property pending conclusion of the inquiry or trial. Hence, it will be open to the trying Magistrate to pass such order as he considers fit. He will not feel influenced either by anything that the Subdivisional Magistrate or Mr. Chandra has said or by any observation which I have made in this Judgment. He will come to his own independent conclusion.