Aparatim Manish Dixit vs State Of Chhattisgarh

This petition has been filed under Section 482 of the CrPC challenging the order dated 21.12.2021 passed by the 6th Additional Sessions Judge, Raipur, District Raipur in Criminal Revision No.144/2021 upholding the order passed by the CJM, Raipur dated 15. 09.2021 rejecting the application preferred for interim custody of the vehicle bearing registration No.CG-12/AN-9211 seized under Sections 34 (1) (2) of the Excise Act, 1915 under Crime No.62/2021 registered at PS Excise Circle, Abhanpur, District Raipur

Brief facts of the case are that on the basis of information received on 20.01.2021, the Excise Officials have recovered 450 bulk liters of foreign made liquor from the illegal possession of accused Avibhash Singh Thakur, brother of the Petitioner herein, who is the registered owner of the said vehicle, therefore, offence has been registered. The Petitioner has filed an application for interim custody of the said vehicle, however, the same was rejected by the CJM on 15.09.2021, which was affirmed by the revisional Court vide impugned order. Hence this petition.

Shri Thakur, learned counsel for the Petitioner submits that both the Courts below have categorically recorded a finding that intimation for confiscation proceeding was received by the CJM, Raipur on 23. 03.2021 from the Collector, therefore, the CJM, on the date of passing of the earlier order dated 10.02.2021, was having jurisdiction to pass order regarding release of the vehicle by granting interim custody and even the said order was set aside vide order dated 8.03.2021 by the 6th Additional Sessions judge, Raipur in the earlier Revision filed by the Petitioner i.e. Criminal Revision No.24/2021 and the same was remitted back and thereafter, after calling the report from the Collector, the impugned order dated 15.09.2021 was passed by the CJM, Raipur and affirmed by the revisional Court. As on 10.02.2021, no intimation was received by the Court, therefore, it has jurisdiction to release the vehicle for interim custody as per the established principles laid down in the matter of Sunderbhai Ambalal Desai vs. State of Gujarat {(2002) 10 SCC 283}. The bar of jurisdiction of the Court stipulated under Section 47-D of the Excise Act, 1915 is not applicable. Hence, learned Counsel prays to quash the impugned order and release the vehicle by granting interim custody to the Petitioner.

Learned State Counsel has opposed the prayer.

Upon being asked, Shri Thakur submits that confiscation proceedings are still pending.

Section 47-D of the Excise Act was inserted in the CG Excise Act, 1915 by the Amendment Act No.22 of 2000 with effect from 4.8.2000 and the same reads thus:-

“47D. 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 intimated under clause (a) of subsection (3) of Section 47-A about the initiation of the proceedings for confiscation of seized property.”

From the aforesaid provision, it is explicit that once the Court having jurisdiction to try the offence covered by clause-(a) or (b) of sub-section (1) of Section 34, which is the information/intimation from the Collector under clause (a) of sub-section (3) of Section 47-A of the Act about the initiation of the proceedings for confiscation of seized property, then the Court shall not make any order about the disposal/custody of the seized property including conveyance, materials, intoxicants etc.

In the instant matter, it is admitted that the intimation was received after passing of the earlier order on 10.02.2021 and the Petitioner has challenged the said order by filing Criminal Revision No.24/2021 and the order dated 10.02.2021 was set aside and the case was remitted back, thereafter, intimation from the Collector was received on 23.03.2021, therefore, on the said date, the order before the revisional Court on 21.12.2021, therefore, on the date of the earlier order passed by the Magistrate, there was no bar of jurisdiction of the Court to release the vehicle.

In Sunderbhai Ambalal Desai (Supra), it has been held at paras-7, 17 & 21 as under:-

“7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

Owner of the article would not suffer because of its remaining unused or by its misappropriation;

Court or the police would not be required to keep the article in safe custody;

If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

In our view, whatever be the situation, 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. This can be done pending hearing of applications for return of such vehicles.

However these powers are to be exercised by the Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly.”

Applying the aforesaid principles to the case in hand, the order impugned rejecting the application filed by the Petitioner for interim custody of the vehicle cannot be held to be sustainable, therefore, the same is accordingly set aside.

Accordingly, the application preferred by the Petitioner under Section 457 of the CrPC before the Court below is allowed and the concerned Court shall, while passing the necessary order within a period of 10 days from the date of production of certified copy of this order, regarding interim custody of the vehicle, impose reasonable conditions for the ultimate production of the vehicle during trial. It is made clear that at the time of handing over of the vehicle on Supurdnama, the Petitioner shall also furnish covered Insurance Policy of the said vehicle.

Resultantly, the Cr.M.P is allowed to the extent indicated above.