Jagdish Nagar vs The State Of Madhya Pradesh
2024 Latest Caselaw 15246 MP

Madhya Pradesh High Court

Jagdish Nagar vs The State Of Madhya Pradesh on 22 May, 2024

Author: Dinesh Kumar Paliwal

Bench: Dinesh Kumar Paliwal

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                                  ON THE 22 nd OF MAY, 2024
                                          MISC. CRIMINAL CASE No. 29642 of 2023

                           BETWEEN:-
                           JAGDISH NAGAR S/O NARAYAN SINGH NAGAR, AGED
                           ABOUT 40 YEARS, OCCUPATION: FARMER RESIDENT
                           OF VILLAGE HARRAKHEDA TAHSIL BERASIYA DISTT.
                           BHOPAL (MADHYA PRADESH)

                                                                                           .....APPLICANT
                           (BY SHRI SOURABH SINGH THAKUR - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 COLLECTOR    RAISEN  DISTRICT RAISEN
                                 (MADHYA PRADESH)

                           2.    STATE OF M.P. THROUGH POLICE STATION
                                 G AI R ATG AN J DISTRICT RAISEN (MADHYA
                                 PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI ANSHUL MISHRA - PANEL LAWYER)

                                 This application coming on for admission this day, the court passed the

                           following:
                                                              ORDER

This petition under Section 482 of Cr.P.C. has been filed challenging the legality and validity of the order dated 04.02.2023, passed in Criminal revision No.02/2023, passed by 1st Additional Sessions Judge, Raisen whereby it has affirmed the order dated 25.01.2023, passed by learned Chief Judicial Magistrate, Raisen dismissing the applicant's application under Section 451/457 of Cr.P.C. for handing over the vehicle on Supurdaginama.

2. Facts of the case are that on 08.01.2023, Police Gairatganj, intercepted a Swift Dzire car bearing registration No.MP-04-TB-2766 and in the search of the car it recovered 18 carton of the country made liquor. In total 162 bulk liter liquor was seized. Offence was registered at Crime No.06/2023 for commission of offence under Section 34(2) of the M.P.Excise Act, 1915 (hereinafter referred to as "Act"). Applicant who is the registered owner of the vehicle moved an application under section 451/457 of Cr.P.C. for taking the vehicle on Supurdagi. Same was dismissed by order dated 12.01.2023 (Annexure D), passed by the Chief Judicial Magistrate on the ground that letter has been sent by the Police to Collector/District Magistrate, Raisen for initiating

the proceedings of confiscation of the vehicle. The said order was challenged

by the applicant before the Court of Sessions. Learned 1st Additional Sessions Judge, Raisen by order dated 20.01.2023, passed in Cr.R.No.01/2023 (Annexure E) set aside the order passed by the learned Magistrate and directed the learned Chief Judicial Magistrate to reconsider the application and to pass fresh order as learned Chief Judicial Magistrate had not taken into consideration the case law of Suresh Vs. State of M.P. reported in 2003(1) MPLJ 639 and Sundarbhai Ambalal Desai Vs. State of Gujarat, reported in 2002 Suppl. (3) SCR 39.

3. In compliance of the order passed by the revisional Court on 25.01.2023 learned Chief Judicial Magistrate again dismissed the application on the ground that as per the letter received from the Assistant Excise Commissioner for Collector by order dated 18.01.2023, it is revealed that proceedings for confiscation are pending. The said order of confiscation was assailed and learned ASJ by order dated 04.02.2023 dismissed the revision on

the ground that intimation has been received from the Collector, therefore, criminal Court has no right to release the vehicle. Hence, this petition.

4. Learned counsel for the applicant has submitted that on 12.01.2023 when Annexure D order was passed criminal court had not received any information about initiation of the proceedings for confiscation from the Collector. Therefore, criminal Court had full power to release the vehicle on supurdagi. It is the contention of learned counsel that on 25.01.2023 when trial Court passed the order, though intimation was received but the entire matter had to be considered with regard to date of 12.01.2023, as on that date no intimation was received and for the same learned counsel placed reliance on order dated 16.10.2023 passed in the case of Mahesh Vs. State of M.P. by coordinate bench of this Court.

5. On the other hand, learned counsel for the State has opposed the contention and has contended that on 25.01.2023 when order was passed by the learned Chief Judicial Magistrate in compliance of the order passed by the Sessions Court intimation was received, therefore, learned Chief Judicial Magistrate has rightly dismissed the application of handing over the vehicle on Supurdagi.

6 . To appreciate the rival submissions putforth by learned counsel for the parties, it is apposite to reproduce 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 contained in the Act, or any other law for the time being in force, the Court having jurisdiction to try offences covered by clause (a) or (b) of sub-section (1) of 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) Section 47-A about the initiation of the proceedings for confiscation of seized property.]"

7. A bare perusal of Section 47-D of the Act reveals that the jurisdiction of the trial Court to make any order about the custody of conveyance is ousted only after it received from collector. An intimation under clause (a) of sub- section (3) of Section 47-A about initiation of proceedings for confiscation of the seized conveyance. Thus, the cut off point for jurisdiction is not commencement of proceedings from confiscation of seized property but intimation thereof received by the Magistrate having jurisdiction to try the offence, under Section 47-A(3)(a) of the Act. A coordinate bench of this court in Suresh Vs. State of M.P., reported in 2003(1) MPLJ, 638 has held as under :

"Jurisdiction of the criminal Court competent to try the offence covered by clab (a) or (b) of sub section 1 of Section 34 to release seized vehicle in temporary custody is ousted only when the court received from the Collector an intimation under Section 47-A (3)(a) about the initiation of the proceedings to confiscate the seized property. Till then, the criminal Court has jurisdiction to entertain the application filed by the owner of the vehicle to pass appropriate order regarding custody of the vehicle"

8. In light of the aforesaid legal position, it is clear that application was probably made before 12.01.2023 and intimation was given by the Assistant Excise Commissioner for District Magistrate, Raisen after 12.01.2023 that too

after passing of the order by the 1st ASJ in the criminal revision. Thus, it is clear that till 12.01.2023, neither the intimation as required under Section 47- A(3)(a) was received by Chief Judicial Magisrate, nor indeed, confiscation proceedings had been initiated. Therefore, no intimation had been received till

12.01.2023 i.e. the date on which the application under Section 451/457 of Cr.P.C. was decided. Hence, there is no doubt that learned Magistrate clearly erred in dismissing the application under Section 451/457 of Cr.P.C on the sole ground that confiscation proceedings have been initiated before 25.01.2018.

9. Learned Additional Sessions Judge disposed of the criminal revision on 04.02.2023 holding that the required intimation had been given by the District Magistrate by letter dated 18.01.2023. Actually both the Courts below ought to have decided the matter with reference to the date 12.01.2023 i.e., the date on which the application under Section 451/457 of Cr.P.C. was decided first by learned Chief Judicial Magistrate. A criminal revision cannot be dismissed on the sole ground that required intimation has been received on some later date after dismissing all the applications for temporary custody by the learned Magistrate and before further order passed in direction of the revisional Court on 25.01.2018.

10. In these circumstances, there is no iota of doubt that on 12.01.2023, learned CJM was having jurisdiction to grant temporary custody of the vehicle to the applicant. No reasons have been given by the Courts below in the orders, nor even by learned Panel Lawyer before this Court as to why the applicant, who was registered owner of the vehicle, should be deprived of the temporary custody of the vehicle. There is absolutely no ground, which can be gathered from the record which may justify denying the release of the vehicle in temporary custody and allowing it it be exposed the elements and rot in the Police Station. In this regard the judgment rendered by the Supreme Court in the case of Sunderbha1 Ambalal Desai Vs. State of Gujarat AIR 2003 SC 638 may profitably be referred to.

11. Consequently this petition under Section 482 of Cr.P.C deserves to

be and is accordingly allowed. Therefore, it is directed that the seized Swift Dzire car bearing registration No.MP-04-TB-2766 is directed to be released on supurdaginama subject to production of original certificate and insurance certificate on the following terms and conditions:

"i. The applicant Jagdish Nagar, Son of Narayan Singh Nagar shall furnish Supurdiginama to a sum of Rs.5,00,000/- (Rupees Five Lakh Only) alongwith a surety of the like amount to the satisfaction of the trial Court for releasing the vehicle in question.

i i . The applicant shall also furnish an undertaking that he shall produce the vehicle in question as & when required during the trial.

iii. The applicant shall not alienate the same or make no use of such vehicle for any unlawful purpose during pendency of the case.

i v. An undertaking shall also be given by the applicant that the machinery and nature of the vehicle in question shall not be changed.

v. The applicant will not allow the vehicle to be used for commission of any other offence and anti-social activities.

v i . In the event of confiscation order by the Court/competent authority, the applicant shall produce the vehicle positively for confiscation."

12. It is further directed that before releasing the vehicle in interim custody of the applicant, the S.H.O. of concerning police station shall get all the papers of vehicle from registered owner and will also get photographs seized 18 x 12 inches of the concerned vehicle taken from all sides and also the photographs showing engine number and chassis number. Such papers and photographs shall be filed in the trial Court to be kept along with the case record

13. With the aforesaid directions, this petition stands disposed of.

Certified copy as per rules.

(DINESH KUMAR PALIWAL) JUDGE Jasleen