Madhya Pradesh High Court
Sanjeev Kansana vs The State Of Madhya Pradesh on 18 December, 2023
Author: Sunita Yadav
Bench: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 18 th OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 52247 of 2023
BETWEEN:-
SANJEEV KANSANA S/O SHRI MEHARWAN KANSANAN,
AGED ABOUT 23 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE RATE KA PURA TEHSIL
GOHAD DISTRICT BHIND (MADHYA PRADESH)
.....APPLICANT
(BY SHRI RAJMANI BANSAL - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH INCHARGE POLICE
STATION THROUGH POLICE STATION BANMORE
DISTRICT MORENA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ALOK SHARMA - P.L.)
This application coming on for admission hearing this day, th e court
passed the following:
ORDER
The present petition under section 482 of Cr.P.C. has been filed for
quashing of the order passed in Crime No. 389/2023 by Chief Judicial Magistrate,
District Morena (M.P.) vide order dated 08/11/2023, whereby an application
under Section 457 of Cr.P.C. filed by the petitioner for releasing of his vehicle
bearing registration No. MP-07 ZB 7220 on temporary custody has been
dismissed.
The facts in brief to decide this petition are that on the report made by the
complainant, an FIR has been registered at crime no.389/2023 under Section
34(2) of MP Excise Act at Police Station Banmore, District Morena. As per
prosecution story, at the time of registration of the FIR, the present petitioner was
carrying illegal liquor in his vehicle bearing registration No. MP-07 ZB 7220 and
the said vehicle was seized by the concerned Police. The petitioner moved an
application under Section 457 of Cr.P.C. for releasing the vehicle, which was
dismissed by the learned trial Court by impugned order.
Learned counsel for the petitioner argued that impugned order is against the
settled principle of law as the trial court has ignored the fact that till today no
notice by the Collector in respect to confiscation proceeding has been sent and the
trial is still pending. Learned trial court has also not not verified the truth in respect
to the alleged offence, therefore, impugned order be set aside and the seized
vehicle be handed over to the petitioner.
In support of his submission counsel for the petitioner has cited the judgment
delivered in the case of Sundarbhai Ambala Desai vs. State of Gujarat, [(2002)
10 SCC 283] and has argued that the interim custody of the vehicle should have
been given to the petitioner as there is danger of its being damaged by vagaries of
weather.
On the other hand, learned counsel for the State argued that the vehicle was
seized while carrying illegal liquor. It is further submitted that according to the
status report of the case, confiscation proceeding of the property is going on. It is
further argued that the forged identity card and other documents have already
been seized. Therefore, the vehicle cannot given on temporary custody.
Heard learned counsel for the rival parties and perused the material available
on record.
For deciding the petition, the provisions of Section 47-D of the Act are relevant
which provides as below:
"47-D. Bar of jurisdiction of the Court under certain circumstances.-
Notwithstanding anything to the contrary contained in the Act, or any other law
for the time being in force, the 4 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.".
Thus it is apparent that as per the provision of of Section 47-D, the
jurisdiction of the trial Court to make any order about the custody of
conveyance is ceased only 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 proceeding for confiscation of seized conveyance. Till
then the criminal Court has jurisdiction to entertain the application filed
by owner of the vehicle to pass appropriate orders regarding custody of
the vehicle.
In the present case, there is nothing on record to show that the trial court
has received the information by the Collector in respect to the initiation of
proceedings of confiscation of the seized vehicle at the time of passing of the
impugned order. As per the case diary notices to the accused persons have said to
be sent by the District Magistrate until now. There is no material on case diary to
show that the notice by the Collector/District Magistrate has been sent to the
concerned Magistrate.
It is undisputed that the petitioner is registered owner of the vehicle in
question. In the case of Sundarbhai Ambala Desai vs. State of Gujarat,
[(2002) 10 SCC 283], the Apex Court has held that "it is of no use to keep such
seized vehicles at the police stations for a long period. It is for the Magistrate to
pass appropriate orders immediately by taking appropriate bond and guarantee as
well as security for return of the said vehicles, if required at any point of time."
Consequently, the impugned order dated 08/11/2023 passed by learned trial
Court is found to be against the settled principles of law and the same is hereby set
aside.
Therefore, relying upon the judgment passed by the Apex Court quoted
above and after taking into consideration submissions made by rival parties, it is
directed that if the petitioner furnishes a personal bond in the sum of Rs.
5,00,000/- (Rupees Five Lakh Only) with one solvent surety in the like amount
to the satisfaction of the trial Court/Magistrate concerned, then the possession of
the said vehicle in question be given to the petitioner on supurdginama during
pendency of trial subject to following conditions:-
(i) On verification of requisite documents pertaining to seized vehicle in
question, the same shall be released and be handed over to the custody of
petitioner on temporary custody subject to confiscation proceedings;
(ii) Petitioner shall not make any change in the appearance of the vehicle in
question;
(iii) Petitioner shall not create third party rights over the vehicle in question;
(iv) Petitioner shall produce the vehicle before the trial Court/Magistrate, as and
when demanded, on his own cost;
(v) It is made clear that after release of vehicle, if same nature of offence or
any offence is committed by using this vehicle, the aforesaid
supurdignama/temporary custody shall stand canceled and the bond shall
be forfeited automatically without reference to this Court; and
(vi) This order shall remain in force till final disposal of the case pending before
the trial Court/Magistrate and at the time of final disposal of the case, the
trial Court/Magistrate shall be at liberty to pass an appropriate order with
regard to vehicle in question in accordance with law without getting
influenced by this order, subject to confiscation proceedings, as per law.
In the light of above terms, petition under Section 482 of Cr.P.C. is
accordingly allowed and disposed of.
(SUNITA YADAV)
JUDGE
Durgekar
