Document Fragment View
Fragment Information
Showing contexts for: section 451 of crpc in Pareshkumar Jaykarbhai Brahmbhatt vs State Of Gujarat on 15 December, 2017Matching Fragments
vehemently submitted that the Courts below have committed a serious error in rejecting the applications filed under Section 451 of the Cr.P.C. on the ground that the jurisdiction of a Magistrate or Court to pass an appropriate order under Section 451 of the Cr.P.C. to release the vehicle by way of an interim custody pending the investigation, trial or inquiry have been barred or restricted, as provided under Section 98(2) of the Gujarat Prohibition Act. According to the learned counsel, Section 98(2) of the Gujarat Prohibition Act offends Articles 14, 19, 31 and Article 300A of the Constitution of India. It was further submitted that Section 98(2) overrides the provisions in the Code of Criminal Procedure, in respect of disposal of property pending disposal of cases as also the HC-NIC Page 7 of 58 Created On Fri Dec 15 23:20:01 IST 2017 inherent powers vested in the High Court under Section 482 of the Cr.P.C. It was also contended that Section 98(2) offends the rights of a person to possess the property, and as such the Government should be called upon to satisfy that such restriction is reasonable coming within the reasonable limit envisaged in Clauses (5) and (6) of Article 19 of the Constitution of India. It was further pointed out that the Gujarat Prohibition Act comes under the State Seventh Schedule to the Constitution. The Gujarat List, i.e., entry 8 of List II of the Seventh Schedule to the Constitution. It was submitted that it overrides the provisions of Sections 451 and 482 of the Code of Criminal Procedure dealing with the disposal of property and the inherent powers of the High Court. It was also submitted relying on one decision of the Madras High Court in the case of Sakthidevi vs. State [2012 Cri.L.J. 461] that the confiscation proceeding is no bar in granting the relief of interim custody of vehicle. This decision of the Madras High Court is in connection with Section 14(4) of the Tamil Nadu Prohibition Act. It was further submitted that the power of the Magistrate to release the vehicle under Section 451 of the Cr.P.C. should be read into Section 98(2) of the Gujarat Prohibition Act. It was also sought to be contended that what is prohibited is the release of the vehicle on a bond or security. The vehicle can be released on any other stringent terms and conditions. In the last, it was submitted that the provision is arbitrary and unreasonable. The vehicle is detained only for the identity at the time of the trial. The curtailment of the power of the Court from passing any interim order will result in a total loss of the property. It was submitted that in almost all the cases, chargesheet has yet to be filed, and if the vehicles are allowed to be kept in the open yard, they will deteriorate not only for value, but will be open to pilferage of its parts by the miscreants. The disposal of cases will take a long time and until then as per Section 98(2), an interim order regarding disposal of such property shall be HC-NIC Page 8 of 58 Created On Fri Dec 15 23:20:01 IST 2017 passed by any Court. One another limb of submission canvassed on behalf of the applicants is that the proviso to Section 99 of the Act comes into play in the course of the confiscation proceedings. It is not necessary for the owner of the vehicle at the stage of claiming interim custody of the vehicle to satisfy the Court that he had exercised due care in preventing the commission of the offence.
41 The section 457 Cr.P.C. is general in its application and applies to all cases of seizures of property by any police officer and such seizure is reported to a Magistrate under the provisions of the Code but not produced before him and provides for the procedure to be followed by the Magistrate for the disposal of property.
42 In the case of Vinayak Gururao Inamdar and Others vs. Bhaskar Vasudeo Shirsat and Others, 1993 Cr.L.J. 3594, a Division Bench of the Bombay High Court, held that a Magistrate cannot in exercise of jurisdiction under Sec. of Cr.P.C., release property seized by the Customs Officers, under the Customs Act and also that Sec. 451, Cr.P.C. would also not apply since the property was not produced before the Court, during any "inquiry or trial" as envisaged under that provision. An order directing delivery of property by a Magistrate, when no criminal proceeding is pending before him, is plainly illegal. The Division Bench, in para5 of the judgment, held thus: "The Magistrate ought to have been mindful of the legal position that the Customs Act embodies elaborate provisions about dealing with seized articles including the confiscation and these special provisions are independent of the provisions of Cr.P.C. and protected by Sec. 5, Cr.P.C. Cumulative effect of Sec. 124, 125 and 110(2) of the Customs Act is that the Magistrate has no jurisdiction to make orders with relation to goods seized and liable to confiscate under the Act, in any case before the launching of the criminal proceedings."
46 The sum total of the aforesaid discussion is that if a Special Act embodies elaborate provisions about dealing with the seized articles including the confiscation and such special provisions are independent of the provisions of the Cr.P.C. and protected by Section 5 of the Cr. P.C., then the provision of sections 451 or 457 Cr.P.C., as the case may be, would not apply in cases of seizure and confiscation.
47 In the aforesaid context, let me look into a Division Bench decision of the Madras High Court in the case of David vs. Shakthivel, Inspector of PolicecumStation House Officer [2010(1) MadLJ (Cri) 929]. Honourable Justice R. Banumathi (as Her Ladyship then was) speaking for the Bench, considered Section 14(4) of the Tamil Nadu Prohibition Act visavis the powers of the Magistrate under Section 451 of the Cr.P.C. Section 14 of the Tamil Nadu Prohibition Act reads as under:
(18) Section 14(1) of TNP Act deals with powers of Court to pass an order of confiscation at the conclusion of the trial whether the case ends in conviction or acquittal. Section 14(1) of TNP Act is akin to Section 452 Cr.P.C. Under Section 14(2) of TNP Act, Court is empowered to pass an order of confiscation during the trial or a case for an offence under Tamil Nadu Prohibition Act. Powers of Court under Section 14(2) of TNP Act is akin to Section 451 Cr.P.C.