Madhya Pradesh High Court
Sheo Vedi vs The State Of Madhya Pradesh on 23 November, 2019
Author: Mohd. Fahim Anwar
Bench: Mohd. Fahim Anwar
1
Criminal Revision No.4250/2019
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Revision No.4250 of 2019
Sheo Vedi
Vs.
State of Madhya Pradesh
_________________________________________________
Shri Vijay Pandey, learned counsel for petitioner.
Shri M. Siddiqui, learned Panel Lawyer for the
respondent/State.
Whether approved for reporting : Yes/No
ORDER
(23.11.2019) Per Mohd. Fahim Anwar, J :
This criminal revision under Section 397/401 of the Code of Criminal Procedure is directed against order dated 30.07.2019, passed by the Court of learned Judicial Magistrate First Class, Raisen, in R.C.T. No.468/2019, whereby the application of the petitioner under Sections 451, 457 of the Code of Criminal Procedure for temporary custody of Bolero Jeep bearing Registration No.MP-38-TA/0543, was dismissed.
2. The case of the prosecution is that the Police party of Police Station Udaipura, District Raisen intercepted a Bolero Jeep bearing Registration No. MP-38- TA/0543 near a bridge, NH-12 Udaipura-Deori Marg, Udaipura and seized 450 bulk liters of illicit liquor from the possession of accused Jaipal Rajput, who was driving the said vehicle. A case under Section 34 (2) of the M.P. Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 29/11/2019 18:15:22 2 Criminal Revision No.4250/2019 Excise Act, 1915 was registered against accused person. Petitioner Sheo Vedi is not an accused in the case.
3. Petitioner Sheo Vedi, who is a registered owner of the aforesaid vehicle, moved an application under Sections 451, 457 of the Cr.P.C. in the Court of Judicial Magistrate First Class, Raisen for releasing the aforesaid vehicle. The learned Judicial Magistrate First Class, Raisen dismissed the application under Sections 451, 457 of the Code of Criminal Procedure vide order dated 30.07.2019. Hence, this revision under Section 397/401, Cr.P.C.
5. Learned counsel appearing for the petitioner has contended that the order passed by the learned Magistrate is bad in the eye of law as at the time of filing of application under Sections 451, 457 of Cr.P.C. neither such proceeding was pending before the Collector nor the Collector has given any information as provided under Clause (a) of Sub Section (3) of Section 47-A of Excise Act. Learned counsel for the petitioner has relied upon the provisions of Section 457 of Criminal Procedure Code and submitted that Section 457 of Cr.PC. provides power to the Court to pass an appropriate order for interim custody and for disposal of seized property pending trial where the property is subjected to natural decay and looking to the other circumstances, to the owner of the property. No fruitful purpose will be served by retaining the vehicle during pendency of the trial or during confiscation proceedings, rather it will diminish the value of the said vehicle, when the applicant is ready to produce the vehicle as and when called by above mentioned authorities, then certainly the vehicle concerned can be given in the interim custody of the registered owner. When the vehicle concerned not kept in Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 29/11/2019 18:15:22 3 Criminal Revision No.4250/2019 the secured place i.e. garage there is every possibility of it being damaged by vagaries of weather.
6. In support of the aforesaid contention, he has invited attention of the Court to the order passed by this Court, dated 11.02.2019 in the case of Manoj Kumar Vs. State of M.P (Criminal Revision No.366/2018).
7. Learned Panel Lawyer for the respondent/State opposed the application on the ground that the vehicle is seized for the offence, which is serious in nature.
8. It has been held by this Court in the case of Prakash Vishwakarma Vs. State of M.P and Another (M.Cr.C.No.33134/2018) as hereunder:-
"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 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 Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 29/11/2019 18:15:22 4 Criminal Revision No.4250/2019 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.
9. A coordinate Bench of this Court in the case of Suresh Vs. State of M.P. 2003(1) MPLJ 638 has held as here-under:-
"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."
10. On going through the case diary, it appears that the application for releasing the vehicle on Supurdginama was filed on 02.07.2019 till then there was no intimation from the Collector, Raisen to the concerned Magistrate that the proceedings of confiscation has been started. Although there is mention in the impugned order dated 30.07.2019 that an information from the Collector, Raisen regarding confiscation proceedings was received on 26.07.2019. However, the application for releasing the vehicle on Supurdginama was filed on 02.07.2019. On or before that date no order of confiscation was passed by the competent authority.
11. On going through the intimations of the learned Court below, dated 27.07.2018, 05.07.2019, 13.07.2019 and 17.07.2019, it seems that no confiscation proceedings has been initiated before the Collector, Raisen. Thus, learned Court below erred in dismissing the application of the petitioner under Sections 451, 457 of the Code of Criminal Procedure; therefore, it would be in the interest of justice to rectify the error committed by learned Court below.
Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 29/11/2019 18:15:22 5Criminal Revision No.4250/2019
12. Keeping in view the facts and circumstances of the case, the order dated 30.07.2019, passed by the Court of learned Judicial Magistrate First Class, Raisen, in R.C.T. No.468/2019 is hereby quashed.
13. Consequently, this revision under Section 397/401 of the Code of Criminal Procedure stands allowed.
14. The seized vehicle Bolero Jeep bearing Registration No. MP-38-TA/0543 be released in interim custody of petitioner on furnishing a personal bond in the sum of Rs.5,00,000/- with a solvent surety in the same amount to the satisfaction of the trial Court for complying with following conditions:-
(i) The vehicle shall be produced before the trial Court or the District Magistrate as and when directed;
(ii) the petitioner shall not alienate for part with the possession of the vehicle during the pendency of the proceeding for confiscation or criminal trial;
(iii) the external appearance of the vehicle shall not be altered in any manner so as to make it difficult to identify.
Certified copy as per rules.
(Mohd. Fahim Anwar) Judge taj.
Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 29/11/2019 18:15:22