Madhya Pradesh High Court
Karansingh vs The State Of Madhya Pradesh on 9 May, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 9 th OF MAY, 2023
MISC. CRIMINAL CASE No. 14200 of 2023
BETWEEN:-
KARANSINGH S/O PITU WAKHLA, AGED ABOUT 40
Y E A R S , OCCUPATION: BUSINESS R/O VILLAGE
CHOGALA DISTT. JHABUA (MADHYA PRADESH)
.....PETTIONER
(BY SHRI BHARAT YADAV - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
BIAORA DEHAT DISTRICT RAJGARH (MADHYA
PRADESH)
2. BHASKAR S/O PRATAP HIHOR, AGED ABOUT 27
Y E A R S , OCCUPATION: LABOUR VILLAGE
DUGAWANI, DIST. ALIRAJPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VINOD THAKUR - G.A. FOR THE RESPONDENT NO.1/STATE.
SHRI MANOJ KUMAR SAHANI - ADVOCATE FOR THE RESPONDENT
NO.2)
This application coming on for admission this day, the court passed the
following:
ORDER
1. The present petition is filed under Section 482 of the Code of Criminal
Procedure, being aggrieved by the order dated 1/3/2023 passed by the Ist ASJ,
Rajgarh, District - Rajgarh(M.P.) in Criminal Revision No.21/2023 arising out of
the order dated 2/2/2023 passed by Judicial Magistrate, Rajgarh in criminal case
No.174/2023 arising out of crime No. 17/2023 registered at P.S. - Biaora Dehat,
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 11/05/2023
2:59:02 PM
District - Rajgarh (M.P.) whereby the Courts below rejected the application filed
by the petitioner under Section 451 of Cr.P.C for interim custody of the vehicle
No. MP-45-H-0341.
2. The facts of the case are that the petitioner is a registered owner of
mini truck bearing registration No.MP-45-H-0341. The petitioner entered into an
agreement on 10/10/2022 for rent of the aforesaid vehicle to the respondent No.
2 namely Bhaskar Hihor and against whom the aforesaid case is registered by
the respondent No.1. On secret information received on 18/1/2023, the
respondent No. 2 was arrested by the respondent No. 1 and it is alleged that the
respondent No. 2 was carrying 725.76 bulk litre of foreign liquor in the said
vehicle without possessing any valid permit/license. The vehicle was seized on
the spot. After completion of the investigation, charge-sheet has been filed on
21/2/2023. The petitioner being owner of the said vehicle filed an application for
interim custody of the aforesaid vehicle before the Trial Court which was
rejected by order dated 2/2/2023. The petitioner filed a Revision Petition against
the said order. The said Revision has also been dismissed by impugned order
dated 1/3/2023. Being aggrieved by the aforesaid the petitioner has invoked the
jurisdiction under Section 482 of the Code of Criminal Procedure.
3. Counsel for the applicant submits that the Trial Court has rejected the
application under Section 451 of Cr.P.C read with Section 457 of Cr.P.C.
considering the bar under Section 47(D) of the M.P. Excise Act (in short
referred to as "the Act"). It is submitted that the application for interim custody
of the vehicle was filed on 25/1/2023. The arguments were heard on 28/1/2023
and on the same day the Trial Court issued a letter to the District
Magistrate/Collector, Rajgarh seeking an information regarding initiation of
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 11/05/2023
2:59:02 PM
confiscation proceedings and by letter dated 2/2/2023, the Collector informed
the Court that the proceedings for confiscation have been initiated. He has
drawn attention of this Court to Annexure P-6 dated 28/1/2023 and Annexure P-
7 dated 2/2/2023. It is argued that on the date of application, there was no
communication by the Collector, Rajgarh regarding initiation of proceedings of
confiscation of seized property under Section 47(A)(2) of the Act and,
therefore, the bar under Section 47(D) of the Act would not apply. In support
of his submissions, he has placed reliance on the judgment of a co-ordinate
Bench of this Court dated 29/4/2022 in the case of Kishore Vs. State of M.P.
passed in M.Cr.C No. 32547/2019 and also order passed by this Court dated
17/3/2023 in the case of Narendra Vs. State of M.P. passed in M.Cr.C
no.37250/2022 whereby it has been held that if there is no communication
received about initiation of the proceedings of confiscation on the date of
application, the bar under Section 47(A) of the Act would not apply.
4. Counsel for the State supports the impugned orders and placed
reliance on an order by a co-ordinate Bench of this Court dated 5/7/2018
passed in the case of Anil Dhakad Vs. State of M.P. (M.Cr.C No.6500/2018)
and other connected petitions, wherein it has been held that the bar under
Section 47(D) of the Act would not apply in the cases where the intimation
regarding initiation of proceedings for confiscation have been received by the
Court before passing the order for interim custody of vehicle.
5. I have heard learned counsel for the parties.
6. To appreciate the rival submissions, it is apposite to refer to the
relevant provisions of Section 47(D) of the Act which is reproduced as under:-
47-D. Bar of jurisdiction of the Court under certain
circumstances.- Notwithstanding anything to the contrary
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Signed by: PRAMOD
KUSHWAHA
Signing time: 11/05/2023
2:59:02 PM
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
into xic ants , 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..
7. On bare reading of the aforesaid provision, it is apparent that if the
Criminal Court has been given intimation as per provision under section 47(A)
(3)(a) of the Act 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
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) reported in 2003(1)
MPHT 439 and order dated 20/07/2009 passed in the case of Pratik
Parik Vs. State of Madhya Pradesh (M.Cr.C.No.4244/2009) reported in
2010 (1) MPLJ (Cri) 205.
8. Further elaborating his submission, learned counsel for the petitioner
contends that unless intimation under Clause (a) of sub-section (3) of Section
47-A of the Act is received by the Court, the Court has full jurisdiction to deal
with the application for 'supurdagi' on merits. That has not been done.
9. Upon hearing counsel for the parties, at the outset, it is expedient to
observe that if law requires a particular act to be done in a particular manner, it
can be done in the same manner and not otherwise. Conjoint reading of Section
47-A and 47-D of the Act suggests that jurisdiction of the Court is barred, if
intimation of initiation of confiscation proceedings of seized property is
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 11/05/2023
2:59:02 PM
received under clause (a) of sub-section (3) of Section 47-A of the Act.
10. In the case of Suresh R. Dave, Prateek Parik (supra) and in the case of
Kishore and Narendra (supra) it has been held that if there is no communication
regarding initiation of proceedings of confiscation by the Collector to the Court
prior to filing of application for "Supurdaginama", the bar under Section 47(D)
of the Act would not come in the way while deciding the application under
Section 451/457 of the Code of Criminal Procedure. The petition was allowed
and the orders were set aside.The law laid down in the case of Suresh R. Dave
and Prateek Parik (supra) has not been considered in the judgment passed in the
case of Anil Dhakad (supra) which has been relied upon by the respondents
and, therefore, it is held that the law laid down in the case of Anil Dhakad
(supra) is per incuriam.
11. In the facts of the present case, it is evident that the application for
interim custody of the vehicle was moved on 25/1/2023 and the matter was
heard on 28/1/2023. Thereafter, the Court sought information from the
Collector regarding initiation of proceedings for confiscation. In turn, on
2/2/2023 intimation was sent by the Collector to the Court regarding initiation of
confiscation proceedings. Thus, on the date of the application, there was no
intimation received by the Court from the Collector, Rajgarh regarding initiation
of proceedings for confiscation and, therefore, the bar under Section 47(D) of
the Act would not attract.
12.In view of the aforesaid, the present petition is allowed. The impugned
order dated 1/3/2023 passed by Ist ASJ, Rajgarh District - Rajgarh (M.P.) in
Criminal Revision No.21/2023 and order dated 2/2/2023 passed by Chief
Judicial Magistrate, Rajgarh in Criminal Case No.174/2023 rejecting the
application for interim custody of the said vehicle are set aside. The application
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 11/05/2023
2:59:02 PM
filed by the applicant under Section 451 of Cr.P.C is allowed. The vehicle in
question shall be released subject to the following conditions:-
(i) The applicant shall not change the original nature/colour of the vehicle.
(ii) The applicant shall not alienate or transfer the said vehicle to any third
party or shall not create any interest of third party.
(iii) The applicant shall produce the said vehicle before the Court as and
when directed by the Court during trial at his own risk and cost.
(iv) In case, in the opinion of the court the applicant does not produce the
vehicle in the condition in which it was given in his possession, the applicant
shall pay the amount which would be determined by the court.
(v) In case of confiscation of the vehicle by the Competent Authority, the
applicant shall produce the vehicle in the same condition in which it was given in
his possession and if the Competent Authority found that the vehicle is not
found in the same condition, then he shall pay the cost in lieu thereof as
determined by the Competent Authority.
(VIJAY KUMAR SHUKLA)
JUDGE
Pramod
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 11/05/2023
2:59:02 PM
