Vikas vs The State Of Madhya Pradesh
2021 Latest Caselaw 5440 MP

                                                                         1                           MCRC-39397-2021
                                               The High Court Of Madhya Pradesh
                                                         MCRC-39397-2021
                                                            (VIKAS Vs THE STATE OF MADHYA PRADESH)


                                       Jabalpur, Dated : 15-09-2021
                                             Heard through Video Conferencing.

                                             Shri Maneesh Kumar Soni, learned counsel for the petitioner.
                                             Shri Pradeep Sahu, learned P.L. for the respondent/State.

This petition has been filed under Section 482 of Cr.P.C. against the o rd er dated 14.07.2021 passed by Second Additional Sessions Judge,

Khurai, District-Sagar in Criminal Revision No.8/2021 affirming the order dated 19.03.2021 passed by the Judicial Magistrate First Class, Khurai, District-Sagar, whereby the JMFC has rejected petitioner's application filed under Section 451/457 of Cr.P.C. for getting interim custody of vehicle bearing registration No.M.P.-04-CV-0869 seized by the police in Crime No. 12/2021 registered at Police Station-Khurai, District-Sagar for the offence punishable under Section 34(2) of MP Excise Act.

Brief facts of the case which are relevant to the disposal of this petition are that on 12.01.2021, on the information, police searched upon the

aforesaid vehicle and found 120 bulk liter country made liquor, two persons namely Brijkishore and Sonu Rai caught red handed on the spot. They disclosed the name of one co-accused Hirdesh who is also involved in this matter. Thereafter vehicle and liquor were seized. Crime No. 12/2021 for offence under Section 34(2) MP Excise Act was registered, then petitioner/accused filed an application before the learned JMFC to the interim custody of the said vehicle, the same is dismissed by the JMFC on 19.03.2021. Being aggrieved by the said order, the petitioner/accused filed an criminal revision before the Second Additional Session Judge, Khurai, District-Sagar, the same is also dismissed vide order dated 14.07.2021.

Learned counsel for the petitioner submits that the he is registered owner of the said vehicle, alleged vehicle was given by the petitioner to his Signature Not Verified SAN brother Sonu Rai. He further submits that the vehicle is kept in police custody Digitally signed by LALIT SINGH RANA Date: 2021.09.15 17:38:45 IST 2 MCRC-39397-2021 in open field and same is deteriorating. The petitioner is not involved in that matter. He has no knowledge that co-accused was transporting liquor by the vehicle. So, petitioner is ready to comply with all the terms and condition imposed by the Court on releasing the vehicle. There is huge possibility to get success in trial. He also submits neither petitioner nor his vehicle is involved

in the alleged crime. He submits that neither petitioner nor his vehicle is involved in the alleged crime. He submits that both the Courts below have not considered the legal aspects in proper manner. Learned counsel for the petitioner submits that on perusal of order dated 14.07.2021 passed by the Second Additional Sessions Judge in revisional jurisdiction, it is clearly apparent that till passing the said order, intimation of confiscation proceedings was not given to concerning Magistrate and both the Courts have decided the case prior to said intimation. Therefore, both the Courts below committed grave error in passing the orders. With the aforesaid, he prays for releasing the vehicle.

On the other hand, learned counsel for the State opposes the petition submitting that according to Section 47-D of the Act, after receiving the intimation of initiation of confiscation proceedings, Magistrate has no jurisdiction to give the interim custody of the vehicle seized under the MP Excise Act. Therefore, learned both the courts below did not commit any mistake in rejecting the petitioner's prayer.

Heard.

O n perusal of case diary, it is crystal clear that the intimation of confiscation is not sent by the Collector or competent authority under Clause A of Section 3 of Section 47-A to the concerning Magistrate. Only Investigating Officer informed the Court that initiation proceeding regarding seized vehicle is proposed.

Under the Act of 1915 of MP Excise Act. Section 47-D prescribes the bar of jurisdiction of the criminal Court, same reads as under:-

Signature Not Verified SAN " 4 7 - D . Bar of jurisdiction of the Court under certain Digitally signed by LALIT SINGH RANA Date: 2021.09.15 17:38:45 IST 3 MCRC-39397-2021 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 (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."

Bare reading of the aforesaid provision, it is apparent that if the intimation is given to Criminal Court as per provision under section 47-D of

the Act of the MP Excise Act, 1915 about initiation of confiscation proceedings by the Collector regarding confiscation then the Criminal Court is ceased of the matter and has no jurisdiction to pass any order for interim custody of vehicle as held by this High Court in the order dated 03/01/2003 passed in the case of Suresh R. Dave Vs. State of Madhya Pradesh (M.Cr.C.No.4390/2002) and order dated 20/07/2009 passed in the case of Pratik Parik Vs. State of Madhya Pradesh (M.Cr.C.No.4244/2009).

Since, uptill passing both the orders, there was no compliance of Section 47 (3) of the MP Excise Act, so the bar of Section 47-D of the Act could not come on the way of jurisdiction of concerning JMFC as well as learned revisional Court while deciding the application under Section 451/457 of Code of Criminal Procedure.

It is apparent that the learned revisional Court has rejected the petition merely on the ground that it is not proved that siezed liquor was transported from aforesaid vehicle without the knowledge of petitioner. At the time of incident, co-accused Hirdesh was absconded. 110 liter country made liquor was also seized from the house of co-accused Hirdesh. So, there is every possibility to repeat the offence and liquor would be transported from the aforesaid vehicle. It is evident that vehicle is parking in the police station and going to be deteriorated. Petitioner is a registered owner of that vehicle.

Signature Not Verified
  SAN




Digitally signed by LALIT SINGH RANA
Date: 2021.09.15 17:38:45 IST
                                                                           4                             MCRC-39397-2021

Prima facie petitioner is not involved in this matter. In the land mark judgment of Hon'ble the Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat (2002) 10 SCC 283, it has been held that in case of vehicles seized during investigation, same should not be allowed to be deteriorated by being kept unused and unattended in the premises of police station. It is further held that the Magistrate concerned would take immediate action for seeing the powers under Section 451 of Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station. The learned revisional Court has also not appreciated this fact and affirmed the order of JMFC. Therefore, both the orders passed by Courts below are not sustainable and deserves to be set aside.

Keeping in view the law laid down by Hon'ble the Apex Court in the case of Sunderbhai Ambalal Desai (supra), the impugned orders are hereby set aside. It is directed that the vehicle (I 20) bearing registration No.M.P.-04-CV-0869 be delivered to petitioner on Supurdginama subject to verification of ownership of the petitioner and following conditions thereto:-

(i) That, the petitioner shall produce the necessary documents like original registration, sale-letter etc before the trial Court.

(ii) That, the petitioner shall furnish a personal bond in the sum of Rs. 5,00,000/- (Rupees Five Lakhs Only) with one solvent surety in the like amount to the satisfaction of the trial Court on an undertaking to produce the said vehicle before the trial Court as and when required.

(iii) That, the petitioner shall get the vehicle photographs showing the registration number as well as the chassis number of the vehicle. Such photographs shall be taken in the presence of the responsible officer, who will be deputed by the trial Court and to be kept in the file of the case.

(iv) That, the photographs of the petitioner as well as surety must have been placed in the personal bond and bond of surety. Further, the photograph of person identifying him before the Court must also have been

Signature Not Verified placed in the personal bond. The petitioner, surety and person identifying SAN

Digitally signed by LALIT SINGH RANA Date: 2021.09.15 17:38:45 IST 5 MCRC-39397-2021 him shall carry their full residential proof.

(v) The petitioner shall undertake not to transfer the ownership of the vehicle and shall not lease it to anyone and not make or allow any changes in it to be made so as to make unidentifiable.

(vi) The petitioner will not allow the vehicle to be used in any anti- social activities.

(vii) In the event of confiscation order by the Court competent, the petitioner shall keep the vehicle present positively for confiscation.

With the aforesaid directions, this M.Cr.C. stands disposed of. A copy of this order be sent to the learned trial Court concerned for necessary compliance.

Certified copy as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

L.R.

Signature Not Verified SAN

Digitally signed by LALIT SINGH RANA Date: 2021.09.15 17:38:45 IST