Rajasthan High Court - Jodhpur
Sanjay Kumar @ Sonu vs State on 13 November, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1175/2018
Sanjay Kumar @ Sonu Son Of Suresh Kumar, By Caste Jat,
Resident Of Bhandolawasi, Police Station Fatehabad Sadar,
District Fatehabad Hariyana.
----Petitioner
Versus
The State Of Rajasthan Through Public Prosecutor.
----Respondent
For Petitioner(s) : Mr.Moti Singh.
For Respondent(s) : Mr.VS Rajpurohit, PP.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 13/11/2018
1. The petitioner has preferred this criminal misc. petition praying for the following relief :-
"It is, therefore humbly and most respectfully prayed that by appropriate order or direction, this Misc Petition may kindly be accepted and allowed :-
A. The Judgment and order dated 22.01.2018 passed by Judicial Magistrate Pachpadra, District Barmer passed in FIR No. 168/2017 police station Pachpadra may kindly be quash and set aside.
B. The Judgment and order dated 20.03.2018 passed by District and Sessions Judge, Balotra in criminal misc. revision petition no. 18/2018 may kindly be quash and set aside.
C. The application filed by the petitioner under section 457 of Cr.P.C. may kindly be accepted and allowed and learned Judicial Magistrate Pachpadra may kindly be directed to release the Cevelorate Car number HR 22 L 8141 on Superdginama and Jamanatnama, in FIR No. 168/2017 Police Station Pachpadra."
2. Brief facts of the case are that an FIR No. 168/2017 was lodged at Police Station Pachpadra for the offence under (2 of 4) [CRLMP-1175/2018] Sections 14/57, 19/57 and 54A of the Rajasthan Excise Act, 1950 in which the petitioner's car bearing registration no. HR 22 L 8141 was seized.
3. Learned counsel for the petitioner submits that it is an admitted position that the car in question was not carrying the excise articles. Learned counsel for the petitioner submits that Section 69(1)(e) requires the vehicle to be released under Section 457 Cr.P.C. in case it was not carrying the excise articles. Learned counsel for the petitioner has relied upon the judgment of this Court in the case of Bhanwarlal vs. State of Rajasthan reported in 2011(2) Cr.L.R. (Raj.) 1035, which reads as follows :-
"A police team of Police Station Karoi, District Bhilwara recovered certain excise articles from a Maruti Omni Van bearing No.RJ-06/U- 0735, vehicle aforesaid was driven by Shri Rajendra Kumar.
2. A case as per provisions of Sections 14/54 and 19/54 of the Excise Act was registered. During the course of investigation accused Rajendra Kumar informed that the excise articles were transferred to Maruti Omni Van from a Jeep Mahindra DI No.RJ-06/UA- 1320. On basis of the information given the jeep aforesaid was seized by the investigating agency.
3. On completion of entire investigation a police report was filed before the competent court and two persons viz. Rajendra Kumar and Chanda Bai were charge sheeted. The present petitioner, who is owner of Jeep No.RJ-06/UA-1320 is cited in the case aforesaid as witness by the prosecution. The petitioner being owner of the vehicle submitted an application as per provisions of Section 457 Cr.P.C. to avail possession of the jeep on 'supurdginama'. Learned trial court rejected the application vide order dated 16.3.2011 being lacking jurisdiction in light of the provisions of Section 69(2-B) of the Rajasthan Excise Act, 1950 (hereinafter referred to as the "Act of 1950"). A revision petition giving challenge to the order aforesaid also came to be rejected on 14.6.2011, hence this misc. petition is preferred.
4. The submission of counsel for the petitioner is that the vehicle owned by the petitioner was not at all carrying any excisable article, (3 of 4) [CRLMP-1175/2018] thus, the provisions of Section 69(2-B) of the Act of 1950 are not applicable.
5. Per contra, as per learned Public Prosecutor accused Rajendra gave an information as per provisions of Section 27 of the Indian Evidence Act about use of vehicle concerned for carrying excisable article, therefore, the entire authority to release that lies within the jurisdiction of the District Excise Officer.
6. Heard counsel for the petitioner and also the Public Prosecutor.
7. For adjudication of the issue involved it shall be appropriate to quote the provisions of Section 69(2-B) of the Act of 1950 and i.e. "whenever any excisable article is seized under Sub-section (1), the District Excise Officer shall have, and, notwithstanding anything contained in any other law for the time being in force, any Court, Tribunal or other authority shall not have, jurisdiction to make order with regard to the possession, delivery, disposal and release of such property".
8. From perusal of the provision aforesaid it is apparent that the District Excise Officer is having exclusive jurisdiction to make an order with regard to possession, delivery, disposal and release of a property i.e. seized with excisable article. In the instant matter the Jeep No.RJ- 06/UA-1320 was not at all seized with or excisable article. As such, the provisions of Section 69(2-B) of the Act of 1950 are not required to be brought into picture in the instant matter. Learned trial court, thus, erred while not examining merits of the application under Section 457 Cr.P.C. while placing reliance upon the provision aforesaid.
9. Accordingly, this misc. petition deserves acceptance and the same is allowed. The order dated 16.3.2011 passed by learned Additional Chief Judicial Magistrate, Gangapur District Bhilwara in Case No.11/2011 and also the order dated 14.6.2011 passed by learned Additional Sessions Judge No.1, Bhilwara in Criminal Revision Petition No.2/2011 are declared illegal and, thus, are quashed. The Additional Chief Judicial Magistrate, Gangapur is directed to consider and decide the application preferred by the petitioner as per provisions of Section 457 Cr.P.C. afresh on merits."
4. Learned P.P. submits that although it is admitted that the excise articles were recovered from truck No. RJ 07 GC 3562 but the car in question was also there along with the truck though it did not carry any excise articles.
(4 of 4) [CRLMP-1175/2018]
5. After hearing the learned counsel for the parties as well as perusing the material available on record and the precedent law, this Court observes that purport of Section 69(1)(e) of the Rajasthan Excise Act is that confiscation is permissible under the Excise Act only for the vehicle carrying such receptacles or packages. Section 69(1)(e) reads as under :-
"(e) every animal, cart, vessel, raft or other conveyance used in carrying such receptacles or package shall be liable to confiscation."
6. Thus, this Court clearly finds that the legislative intention of Section 69(1)(e) was to cover only those vehicles which were actually used in carrying such receptacles or package for confiscation under the Excise Act. Hence, exercise of Section 457 Cr.P.C. is the proper remedy for release of the car in question.
7. Consequently, this misc. petition is allowed, the impugned orders dated 22.1.2018 and 20.3.2018 are quashed and the application under Section 457 Cr.P.C. filed by the petitioner is allowed. The trial court is directed to release the Cevelorate Car bearing registration No.HR 22 L 8141 on supardaginama in favour of the petitioner on usual conditions, which the trial court deems fit. Needless to say, trial court shall make verification that the petitioner is a registered owner of the vehicle.
(DR. PUSHPENDRA SINGH BHATI),J S.Phophaliya/-
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