Dinesh S/O Shri Ratanlal Through ... vs The State Of Madhya Pradesh
2022 Latest Caselaw 2814 MP

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            The High Court Of Madhya Pradesh
                          Bench Gwalior
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           SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                            MCRC 52421 of 2021

                           Dinesh vs. State of MP


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Shri R.K. Shrivastava, counsel for the petitioner.
Shri Ravi Ballabh Tripathi, Panel Lawyer for the respondent/ State.
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Reserved on                                    11/02/2022
Whether approved for reporting                ..../.......
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                                    ORDER

(Passed on 28/02/2022)

Per Rajeev Kumar Shrivastava, J:-

Petitioner has preferred this petition under Section 482 of CrPC for

quashment of order dated 29/09/2021 passed by Chief Judicial Magistrate

Guna (MP) in connection with Crime No.788 of 2021, whereby the application

filed u/S. 457 of CrPC to get the vehicle i.e. Bolero bearing registration

No.MP39C-3974 on interim custody, has been rejected.

(2) Facts giving rise to present petition, in short, are that on the alleged date

of incident i.e. on 03/09/2021, while police at the time of checking at AB Road

Bypass, stopped aforesaid vehicle Bolero bearing registration no.MP39C-3974

recovered six cartoons of English Liquor, containing 72 bottles of Imperial

Blue and 7 cartoons of English Liquor, containing 84 bottles of MacDonald

Rum from the said vehicle and thereafter, driver along with co-accused who

were sitting in the said vehicle were taken into custody and Crime No.788 of

2021 was registered at Police Station Cantt. Guna for commission of offence

u/S. 34(2) of the MP Excise Act,1915. Thereafter, on behalf of the petitioner,

an application u/S. 457 of CrPC was filed before the Court of CJM to get

vehicle on interim custody and the same was rejected vide impugned order

dated 29/09/2021. Hence, this petition.

(3) It is submitted on behalf of the petitioner that the said vehicle is owned

by the petitioner and the relevant documents in regard to insurance were filed

before the Court of CJM but the Court of CJM without considering the

documents, rejected the application u/S. 457 of CrPC. It is further submitted

that at the time of filing of such application, no confiscation proceeding has

been started before the competent authority, therefore, Section 47D of the MP

Excise Act is not applicable. It is further submitted that it is settled principle of

law that interim custody of the vehicle cannot be refused on the ground that it

is being liable to be confiscated after the offence is committed. It is further

submitted that the vehicle in question is the only source of livelihood and if the

same is permitted to be kept for indefinite period in open place in the

concerning police station, then there is every likelihood of vehicle being

damaged. The petitioner is ready and willing to abide by any condition which

may be imposed by this Court. Therefore, the impugned order passed by the

Court below is contrary to the provisions of law and the same are liable to be

quashed, as they are passed in anticipation of confiscation of vehicle. It is

further submitted that in the light of judgments passed by Full Bench of this

Court in the case of Raj Kumar Sahu vs. State of MP reported in 2019 (2)

MPLJ 438, and Division Bench decision of this Court in the case of Rajendra

Singh vs. State of MP passed on 03/08/2021 in WP No. 8615 of 2020 as well

as order dated 31/08/2021 passed by this Court in MCRC No.43109 of 2021

(Manoj Kumar vs. State of Madhya Pradesh), the vehicle in question be

given on interim custody to the owner concerned. Therefore, it is prayed that

after considering all the facts and imposing stringent conditions, the vehicle in

question may be released on interim custody during pendency of the trial.

Since there is no criminal liability against the petitioner, therefore,the seized

vehicle is not liable to be confiscated at the threshold. Hence, the impugned

order passed by below deserves to be quashed, by allowing this petition. In

support of this contention, the learned counsel for the petitioner has also relied

upon the judgment of Hon'ble Apex Court in the case of Sunderbhai Ambalal

Desai vs. State of Gujarat reported in (2002) 10 SCC 283, in which Hon'ble

Apex Court has laid down necessary provisions as to how to release vehicle on

interim custody to registered owner of the vehicle.

(4) Per contra, the learned State Counsel has vehemently opposed petition

and submitted that if the entire allegations are taken on their face value, then it

is clear that although petitioner is the registered owner of offending vehicle but

he had executed a power of attorney in favour of Shri Ratanlal Lodha, which

reflects that the petitioner is also guilty of alleged offence, as he is involved in

illegal transportation of foreign liquor in the said vehicle, by which aforesaid

Crime has been registered by the Excise Department and the Court below has

rightly rejected the application filed for grant of interim custody and prayed

for dismissal of this petition.

(5) Heard learned counsel for the parties and perused the impugned order as

well as documents available on record.

(6) Section 451 of CrPC reads as under:-

''451. Order for custody and disposal of property pending trial in certain cases.When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is

subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation-

For the purposes of this section, "property" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody.

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.'' Section 457 of CrPC reads as under:-

457. Procedure by police upon seizure of property.

''(1)Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.'' (7) The powers of High Court u/S. 482 of CrPC are partly administrative

and partly judicial. The Hon'ble Apex Court in State of Karnataka vs.

Muniswami reported in AIR 1977 SC 1489 held the section envisages three

circumstances in which the inherent jurisdiction may be exercised, namely, "to

give effect to an order under CrPC, to prevent abuse of the process of the

court, and to secure the ends of justice."

(8) The jurisdiction u/S. 482 CrPC is discretionary. The Court may depend

upon the facts of a given case. Court can always take note of any miscarriage

of justice and prevent the same by exercising its powers under Section 482 of

CrPC. It is true that there powers are neither limited nor curtailed by any other

provisions of the Code. However, such inherent powers are to be exercised

sparingly and with caution.

(9) It is also settled law that the inherent power under Section 482 of CrPC

has to be exercised for the ends of the justice and should not be arbitrarily

exercised to cut short the normal process of a criminal trial.

(10) On perusal of record, it is apparent that the seized vehicle was used for

illegal transportation of liquor and it has been seized for the offence committed

under Section 34(2) of the MP Excise Act, therefore, the impact of said offence

is yet to be assessed by the trial Court in trial. In the present matter, the trial is

going on. Considering the nature of allegations as well as the gravity of

offence, the seized vehicle is the subject-matter of evidence. Therefore, no

case is made for releasing the vehicle on interim custody.

(11) The Supreme Court in the case of State of Karnataka and K.

Krishnan, reported in AIR 2000 SC 2729 held that a liberal approach for

release of vehicle or implements involved in aforesaid offences should not be

adopted by the Court and the same should not be normally be returned to a

party till the culmination of the proceedings in respect of such offences

including confiscatory proceedings except in exceptional cases. The said view

has been reiterated and reaffirmed by the Supreme Court in the case of State

of West Bengal Vs. Gopal Sarkar, reported in (2002) 1 SCC 495 and State

of West Bengal & Anr. Vs. Mahua Sarkar, reported in (2008) 12 SCC 7612.

The Coordinate Bench of this Court in the case of Vikramadita Singh Vs.

State of M.P., 2014 (3) MPHT 142 and M.Cr.C.No.21295/2017 (Shriniwas

Dubey Vs. State of M.P.) has also considered the said aspect in detail and

thereafter, rejected the application for releasing the vehicle on interim custody.

(12) Considering the above-mentioned enunciation of law along-with the

facts and circumstances of the case, in the considered opinion of this Court,

release of vehicle may embolden such elements and possibility cannot be ruled

out that after release the vehicle in question may again be utilized for illegal

transportation of liquor. Therefore, petition being devoid of merit, is hereby

dismissed. However, petitioner would be at liberty to revisit this Court after

recording of prosecution evidence.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.02.28 18:47:11 +05'30'