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Showing contexts for: section 457 in Pareshkumar Jaykarbhai Brahmbhatt vs State Of Gujarat on 15 December, 2017Matching Fragments
40 The power of the Court under Section 451, as regards custody of movable property, is not arbitrary. Even though, such power is discretionary, it has to be exercised in a judicial manner. Under this section, the Magistrate has no jurisdiction to investigate and decide the question of title or ownership of the rival claimants to the property. Only the question of possession of the property at the time the case started, has to be gone into and decided before passing an order for the custody under this section. Section 452 deals with order for disposal of property at conclusion of trial. Section 457 deals with procedure by police, upon seizure of property. This section reads as follows:
44 I shall now consider certain provisions of the Essential Commodities Act, 1955. In this context. Section 6A deals with the confiscation of foodgrains, edible oilseeds and edible oils. Section 6B deals with issue of show cause notice before confiscation of food grains, etc. Section 6E deals with the bar of jurisdiction in certain cases. Section 6E has been substituted to provide that except the Collector or State Government, all other authorities, judicial or otherwise, would be debarred from making any order with regard to the possession, delivery, HC-NIC Page 30 of 58 Created On Fri Dec 15 23:20:01 IST 2017 disposal or distribution of any essential commodity, seized in pursuance of an order made under Section 3. Thus, a Magistrate will have no jurisdiction to grant relief against seizure under Section 457, Cr.P.C. Section 6A makes the necessary provision for the confiscation of essential commodities seized in pursuance of an order made under Sec. 3 in relation thereto the Collector of the district of the PresidencyTown, in which such commodity is seized, may order confiscation, if he is satisfied that there has been a contravention of such an order. But, no order of confiscation shall be made under this Sec, if the seized essential commodity has been produced by the producer, without prejudice to any action, which may be taken under any other provision of this Act. Section 6A of the Act provides the procedure to be adopted by the Collector, before passing order for confiscation, which enacts that after issuing of notice, an opportunity has to be given to the aggrieved party, for contesting the same. The Collector, after giving him a hearing, has to decide the objection and pass an order either confiscating the property or refusing to confiscate the property.
Sections 451 and 457 Cr.P.C. somewhat overlap. Section 457 Cr.P.C. reads as under:
(17) Section 457 Cr.P.C. deals generally with all cases where seizure of property is reported by the policeofficer to the Magistrate and vehicle is not produced before Criminal Court. The Magistrate can act under this Court only when the seizure of the property is reported to him. He is entitled to do one of three things; (a) he may pass an order regarding the disposal of the property; or (b) deliver it to the person entitled to its possession subject to conditions, if any, imposed; or (c) in his absence pass an order for its custody and production.
While allowing the appeal of the State, the Supreme Court observed in para 11 as under:
"It is relevant here to state that in the present case, the High Court, while releasing the vehicle on security has exercised its power under Section 451 of the Code. True it is that where any property is produced by an officer before a criminal court during an inquiry or trial under this section, the court may make any direction as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, as the case may be. At the conclusion of the inquiry or trial, the court may also, under Section 452 of the Code, make an order for the disposal of the property produced before it and make such other direction as it may think necessary. Further, where the property is not produced before a criminal court in an inquiry or trial, the Magistrate is empowered under Section 457 of the Code to make such order as it thinks fit. In our opinion, the general provision of Section 451 of the Code with regard to the custody and disposal of the property or for that matter by destruction, confiscation or delivery to any person entitled to possession thereof under Section 452 of the Code or that of Section 457 authorising a Magistrate to make an order for disposal of property, if seized by an officer and not produced before a criminal court during an inquiry or trial, however, has to yield where a statute makes a special provision with regard to its confiscation and disposal. We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation or release to its rightful owner. The requirement of production of seized property before the Deputy Commissioner under Section 59(1) of the Act is, notwithstanding anything contained in any other law, and, so also is the power of confiscation. Not only this, notwithstanding anything to the contrary contained in any other law for the time being in force, no court, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in commission of any offence under the Act. In the present case, the Legislature has used a nonobstante clause not only in Section 59 but also in Section 61 of the Act. As is well settled, a nonobstante clause is a legislative device to give effect to the enacting part of the section in case of conflict over the provisions mentioned in the non obstante clause. Hence, Sections 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that HC-NIC Page 46 of 58 Created On Fri Dec 15 23:20:01 IST 2017 the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof...."