Madhya Pradesh High Court
Mahesh vs The State Of Madhya Pradesh on 16 October, 2023
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 16th OF OCTOBER, 2023
MISC. CRIMINAL CASE No. 30997 of 2023
BETWEEN:-
MAHESH S/O SALGRAM, AGED ABOUT 45
YEARS, R/O 444, VAIBHAV LAXMI NAGAR,
DISTT. INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANU MAHESHWARI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
SANWER, DISTRICT INDORE (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI KAPIL MAHANT - PANEL LAWYER)
.................................................................................................................................
This application coming on for admission this day, the court
passed the following:
ORDER
The petitioner has filed this petition under Section 482 of Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.') being aggrieved by the impugned order dated 14/06/2023 passed by Additional Sessions Judge, Link Court, Sanwer, District Indore (M.P.) in Criminal Revision No.09/2023, affirming the order dated 04/02/2023 passed by Judicial Magistrate First Class, Sanwer, District Indore in connection with Crime Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/17/2023 10:58:44 AM 2 No.42/2023 registered at Police Station Sanwer, Indore, whereby an application preferred by the petitioner under Section 451 and 457 of Cr.P.C. has been dismissed.
2. The brief facts of the case are that on 25/01/2023, police got a discrete information regarding the illegal transportation of liquor. Act upon the said information, police party reached on the spot i.e. near the Poultry Farm House, where they found a red coloured Bolero vehicle bearing registration number MP-09-BC-7734 in which they found 15 boxes Dubara liquor and 05 boxes of Balck Fort, 30 quarters of Stone Blue and 32 cans of Power 10000 beer worth of Rs.66,000/- from the possession of accused Ramsingh and Hitler. Police has seized the liquor and vehicle and offence has been registered against the accused persons.
3. The petitioner being the owner of the seized vehicle has filed an application under Section 451 and 457 of Cr.P.C. before the JMFC, Sanwer for releasing the seized vehicle on Supurdagi, however, the trial Court has rejected the same by holding that information in respect confiscation proceeding has not been received from the District Magistrate, Indore, therefore, therefore, jurisdiction of Judicial Magistrate to pass an order for custody of the vehicle is legally barred. The petitioner has challenged the impugned order before the revisional Court, but the same has been dismissed vide order dated 14/06/2023. Hence, this petition is filed under Section 482 of Cr.P.C.
4. Learned counsel for the petitioner submits that the petitioner is the registered owner of the aforesaid vehicle. Petitioner has filed an application under Section 451 and 457 of Cr.P.C. before the JMFC, Sanwer on 27/01/2023 for obtaining the interim custody of the aforesaid seized vehicle, but instead of passing the order on merit and decide the Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/17/2023 10:58:44 AM 3 application, the trial Court has adjourned the matter and sought information regarding the confiscation proceeding by writing a letter to the Collector, Indore.
5. Learned counsel for the petitioner further contended that on 01/02/2023, the matter was again adjourned for 03/02/223 due to the non-availability of the information sought by the trial Court in respect of confiscation proceeding, thereafter, the trial Court passed an order on 04/02/2023. It is clear that at the time of filing of the application under Section 451 and 457 of Cr.P.C. information in respect of the confiscation proceeding was received by the concerned Magistrate, therefore, there is no specific bar under Section 47(D) of the M.P. Excise Act and the trial Court was competent to decide the application for grant of interim custody. The order passed by the trial Court as well as the revisional Court are against the law and facts of the case and deserve to be dismissed. Hence, he prays that impugned order be set aside and seized vehicle be released on Supurdagi to the petitioner.
6. Per contra, learned counsel for the respondent/State supported the impugned order, opposes the application and prays for its rejection.
7. I have heard learned counsel for the parties at length and perused the documents filed by them.
8. To appreciate the rival submissions, it is apposite to refer to the relevant provisions of Section 47(D) of the Act which is reproduced 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 the clauses (a) or (b) of sub Section Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/17/2023 10:58:44 AM 4 (1) of the 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 an intimation under Clause
(a) of sub-Section (3) of Section 47-A about the initiation of the proceedings for confiscation of seized property."
9. In Pratik Parik vs. State of M.P. reported in 2010(1) MPLJ (cri.) 205, a Coordinate Bench of this Court has held that application for release of vehicle rejected on the ground that liquor seized from the vehicle was more than 50 bulk liters and the jurisdiction to pass an order of disposal of such property was barred under M.P. Excise Act. Bar under Section 47-D of the Act was not attracted unless intimation was received by the Court from the Collector.
10. In the case of Ramesh Kumar Soni Vs. State of Madhya Pradesh, a coordinate Bench of this Court vide order dated 15.05.2017 passed in M.Cr.C. No.1285/2017 has held as under:-
"Having perusal of the impugned orders, it is found that on behalf of the Collector no intimation has been given to the trial Court/ Magistrate under Section 47(A)(3)(a) of M.P. Excise Act and the provision relating to bar of jurisdiction to release the vehicle under section 47-D of M.P. Excise Act is not attracted and the Magistrate is competent to release the vehicle. There is no other ground to keep the vehicle idle till disposal of the case. So far as the proceeding of confiscation is concerned, if it is going on, the order for release of vehicle may be given effect subject to order of the confiscation so that the order of confiscation may also be implicated." (Emphasis supplied)
11. Upon hearing counsel for the parties, at the outset, it is expedient Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/17/2023 10:58:44 AM 5 to observe that if law requires a particular act to be done in a particular manner, it can be done in the same manner and not otherwise. Conjoint reading of Section 47-A and 47-D of the Act suggests that jurisdiction of the Court is barred, if intimation of initiation of confiscation proceedings of seized property is received under clause (a) of sub-section (3) of Section 47-A of the Act.
12. The order sheets of the trial Court has been perused and from a bare perusal of the aforesaid order sheets it is evident that the application for grant of interim custody was moved on 27/01/2023 before the trial Court and on the same date no information in respect of confiscation of the seized vehicle was received by the trial Court. The trial Court has adjourned the matter for 28/01/2023 and on 28/01/2023 the trial Court has again adjourned the matter for hearing 01/02/2023 and sought information regarding the confiscation proceeding by writing a letter to the Collector, Indore. On 01/02/2023, the position was similar since no information regarding the confiscation of the seized vehicle was received and matter was again adjourned for 03/02/2023. On 03/02/2023, the trial Court has observed that the information regarding the confiscation of the vehicle was received from the District Magistrate, Indore, but even with such observation, the trial Court has not decided the application filed by the petitioner under Section 451 and 457 of Cr.P.C. Matter was again adjourned for 04/02/2023 and on 04/02/2023 the Police Constable Vivek Mishra has produced the photo copy of the order issued by the Collector, Indore and the trial Court has held that the confiscation proceeding has been started in respect of seized vehicle. On the basis of the above, on 04/02/2023 the trial Court has rejected the application.
Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/17/2023 10:58:44 AM 613. From perusal of all these proceedings, it is evident that on the date of filing of application under Section 451 and 457 of Cr.P.C. and on other two subsequent dates of hearing, no information was received by the trial Court from the Collector, Indore regarding the initiation of proceeding in respect of confiscation.
14. Co-ordinate Bench of this Court in the case of Karansingh Vs. State of Madhya Pradesh and Another passed in M.Cr.C.No. 14200/2023 on 09/05/2023 has held that if on the date of application there was no intimation to the Court from the Collector regarding initiation of proceeding in respect of confiscation, therefore, the bar under Section 47(D) of the M.P. Excise Act would not be attracted. This order is completely applicable in the instant case.
15. In view of the aforesaid, present petition is allowed and impugned order dated 14/06/2023 passed by ASJ, Link Court, Sanwer, District Indore in Criminal Revision No.09/2023 and order dated 04/02/2023 passed by JMFC, Sanwer, District Indore in respect of Crime No.42/2023 registered at Police Station Sanwer, Indore are set aside.
16. The application filed by the petitioner under Section 451 and 457 of Cr.P.C is allowed. The vehicle in question shall be released subject to the following conditions:-
(i) The petitioner shall not change the original nature/colour of the vehicle;
(ii) The petitioner shall not alienate or transfer the said vehicle to any third party or shall not create any interest of third party;
(iii) The petitioner shall produce the said vehicle before the Court as and when directed by the Court during trial at his Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/17/2023 10:58:44 AM 7 own risk and cost;
(iv) In case, in the opinion of the court the petitioner does not produce the vehicle in the condition in which it was given in his possession, the petitioner shall pay the amount which would be determined by the court; and
(v) In case of confiscation of the vehicle by the Competent Authority, the petitioner shall produce the vehicle in the same condition in which it was given in his possession and if the Competent Authority found that the vehicle is not found in the same condition, then he shall pay the cost in lieu thereof as determined by the Competent Authority.
Certified copy as per rules.
(ANIL VERMA) J U D G E Tej Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/17/2023 10:58:44 AM