Madhya Pradesh High Court
Ajay Khateek vs The State Of Madhya Pradesh on 8 September, 2021
Author: Arun Kumar Sharma
Bench: Arun Kumar Sharma
1 MCRC-28341-2021
The High Court Of Madhya Pradesh
MCRC-28341-2021
(AJAY KHATEEK Vs THE STATE OF MADHYA PRADESH)
2
Jabalpur, Dated : 08-09-2021
Heard through Video Conferencing.
Mrs. Manjit P. S. Chuckal, learned counsel for the applicant.
Shri Anand Shukla, learned Panel Lawyer for the respondent /State.
The applicant has preferred this petition under Section 482 of the Cr.P.C. being aggrieved by order dated 22/03/2021 passed by First Additional Sessions Judge, Katni in Criminal Revision No. 27/2021, affirming the order dated 08/02/2021 passed by Chief Judicial Magistrate, Katni in Criminal Case No. 30/2021, by which application moved by the applicant under Section 457 of the Cr.P.C. for releasing the vehicle Maruti Suzuki Ertiga VXI bearing registration No. MP-21-CA-3397 on Supurdaginama has been rejected on the ground that there was compliance of Section 47 (A) (3) of the M.P. Excise Act and thus, bar of Section 47-D of the M.P. Excise Act is attracted.
Brief facts of the case are that on 27/01/2021, acting upon secret information police intercepted Maruti Suzuki Ertiga VXI bearing registration No. MP-21-CA-3397 and seized 144 bulk liters of country made as well as foreign liquor amounting to Rs.93,320/- from the said vehicle. Thereafter, police registered Crime No. 30/2021 for the commission of offence under Section 34 (2) of the M.P. Excise Act, 1915 against the applicant and seized the aforesaid vehicle. Being registered owner of the said vehicle, on the same day applicant filed an application under Section 457 of the Cr.P.C. for releasing Maruti Suzuki Ertiga VXI bearing registration No. MP-21-CA-3397 on Supurdginama to the applicant before Chief Judicial Magistrate, Katni and thereafter, vide order dated 08/02/2021, Chief Judicial Magistrate rejected the applicant's application on the ground that there is a bar under Section 47(D) of the M.P. Excise Act, 1915 for releasing the said vehicle on Supurdginama 2 MCRC-28341-2021 to the applicant. Being aggrieved by the said order, the applicant preferred Criminal Revision No. 27/2021 before First Additional Sessions Judge, Katni, which was also dismissed vide order dated 22/03/2021. Therefore, the applicant has preferred this petition under Section 482 of Cr.P.C. for quashment of order dated 22/03/2021 passed by First Additional Sessions Judge, Katni in Criminal Revision No. 27/2021 and for releasing the vehicle Maruti Suzuki Ertiga VXI bearing registration No. MP-21-CA-3397 on Supurdginama to the applicant.
Learned counsel for the applicant submits that the applicant has moved an application under Section 457 of the Cr.P.C. for Supurdginama of the aforesaid vehicle before Chief Judicial Magistrate, Katni on 27/01/2021; whereas the Collector / District Magistrate intimated the trial court for confiscation of the seized vehicle on 4.2.2021. It is well settled that on initiation of confiscation proceedings, a written information has to be submitted by the Collector or the Excise Commissioner to the trial Court and in case of non-compliance of the settled position of law, the seized vehicle should be handed over to the registered owner. In support of her submissions, she cited orders of this court passed in M.Cr.C.No. 33134/2018 vide order dated 24.9.2018 and M.Cr.C.No.4244/2009 vide order dated 20.7.2009 and prayed that the seized vehicle may kindly be released on Superdginama.
Heard learned counsel for the parties and perused the impugned orders and the documents available on record.
To adjudicate the issued involved in the matter it is necessary to reproduce the provisions of Section 47-D of the M.P. Excise Act, which are as under :-
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
3 MCRC-28341-2021 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 an intimation under clause (a) of sub-section (3) Section 47- A about the initiation of the proceedings for confiscation of seized property. (Emphasis supplied) Bare perusal of Section 47-D of the Act reveals that the jurisdiction of the trial Court to make any order about the custody of conveyance is ousted only after it receives from Collector an intimation under clause (a) of sub- section (3) of Section 47-A about initiation of proceedings for confiscation of the seized conveyance. Thus, the cut-off point for jurisdiction is not commencement of proceedings for confiscation of seized property but intimation thereof received by the Magistrate having jurisdiction to try the offence, under Section 47-A (3) (a) of the Act.
A Coordinate Bench of this Court in the case of Suresh Vs. State of M.P. 2003(1) MPLJ 638 has held as hereunder:
"Jurisdiction of the criminal Court competent to try the offences covered by clauses (a) or
(b) of subsection (1) of Section 34 to release seized vehicle in temporary custody is ousted only when the Court receives from the Collector an intimation under S. 47-A (3) (a) about the initiation of proceedings to confiscate the seized property. Till then the criminal Court has jurisdiction to entertain the application filed by owner of the vehicle to pass appropriate orders regarding custody of the vehicle."
In the light of aforesaid legal position reverting back to the facts of the case, this court finds that the application under Section 457 of Cr.P.C. was made on 27.1.2021 and on 28.1.2021 the Superintendent of Police, Katni intimated the District Magistrate i.e. Collector vide communication dated 28.1.2021 for confiscation of the vehicle and the Collector on its turn communicated the trial court on 4.2.2021. Thus, it is crystal clear that on 4 MCRC-28341-2021 27.1.2021 there was no communication of intimation by the confiscating authority i.e. Collector to the Court. Thus, it is ex-facie clear that on 27.1.2021 there was no compliance of Section 47-A (3) (a) of the M.P. Excise Act and resultantly, bar of Section 47-D of the M. P. Excise Act would not be attracted. Hence, there is no doubt that the learned both the courts below clearly erred in dismissing the application under Section 457 of Cr.P.C. Further, there is absolutely no ground which can be gathered from the record which may justify denying the release of the vehicle in temporary custody and allowing it to be exposed the elements and rot in the police station.
Therefore, the impugned order is not sustainable. Hence, the petition is allowed and the impugned order is set-aside. It is directed that the seized vehicle Maruti Suzuki Ertiga VXI bearing registration no. MP21CA-3397 be delivered to the applicant on Supurdginama subject to producing the original registration certificate and further on satisfying the following conditions :-
(i) That, the applicant shall furnish a personal bond in the sum of Rs.5,00,000/- (Rupees Five Lacs Only) with one solvent surety in the like amount to the satisfaction of the Court concerned / authority concerned on an undertaking to produce the said vehicle before the Court concerned / confiscating authority / competent authority as and when required.
(ii) The applicant shall undertake not to transfer the ownership of the vehicle and not to lease it to any one and not to alienate or create any third party interest and not to make or allow any changes in it to be made so as to make unidentifiable.
(iii) In the event of confiscation order by the Court or competent Authority, the applicant shall produce the vehicle positively for confiscation.
A copy of this order be forwarded to the learned Court concerned / the authority concerned for necessary compliance.
With the aforesaid, this application stands disposed of. Certified copy as per rules.
5 MCRC-28341-2021 (ARUN KUMAR SHARMA) JUDGE skt SANTOSH KUMAR TIWARI 2021.09.13 11:21:57 +05'30' 6 MCRC-28341-2021 HIGH COURT OF MADHYA PRADESH : PRINCIPAL SEAT AT JABALPUR 1 Case Number M.Cr.C. No. 28341/2021 2 Parties Name Ajay Khateek Vs. State of M.P. 3 Date of order 08/09/2021 4 Bench Constituted of Hon. Shri Justice Arun Kumar Sharma 5 Order passed by Hon. Shri Justice Arun Kumar Sharma 6 Whether approved for YES reporting 7 Name of the counsel for the Mrs. Manjit P.S. Chuckal, learned counsel for the parties applicant.
Shri Anand Shukla, learned Panel Lawyer for the respondent/State.
8 Law Laid down & Significant A bare perusal of Section 47-D of the Act reveals that the paragraphs jurisdiction of the trial Court to make any order about the custody of conveyance is ousted only after it receives from Collector an intimation under clause (a) of sub-section (3) of Section 47-A about initiation of proceedings for confiscation of the seized conveyance. Thus, the cut-off point for jurisdiction is not commencement of proceedings for confiscation of seized property but intimation thereof received by the Magistrate having jurisdiction to try the offence, under Section 47-A (3) (a) of the Act.
"Jurisdiction of the criminal Court competent to try the offences covered by clauses (a) or (b) of subsection (1) of Section 34 to release seized vehicle in temporary custody is ousted only when the Court receives from the Collector an intimation under S. 47-A (3) (a) about the initiation of proceedings to confiscate the seized property. Till then the criminal Court has jurisdiction to entertain the application filed by owner of the vehicle to p a s s appropriate orders regarding custody of the vehicle."
(Arun Kumar Sharma) Judge skt SANTOSH KUMAR TIWARI 2021.09.09 17:16:03 +05'30'