Kuldeep Upadhyay vs State Of Madhya Pradesh

This misc. criminal case has been instituted on an application under Section 482 of the Cr.P.C. filed on behalf of petitioner/accused Kuldeep Upadhyay for taking motorcycle no. MP35 ME 2668 in his interim custody. It is directed against the order dated 7.9.2017 passed by the Court of Learned Additional Sessions Judge, Laundi, district Chattarpur in Criminal Revision No. 158/2017, whereby learned Additional Sessions Judge had affirmed the order dated 28.7.2017 passed by the learned Judicial Magistrate First Class, Laundi, district Chattarpur in Crime No.28/2017, dismissing the application for taking aforesaid motorcycle in interim custody.

The facts giving rise to this misc. criminal case may be summarized as hereunder: Police Station Chhatarpur, district Chhatarpur registered a case under Section 34(2) of the Excise Act against petitioner Kuldeep Upadhyay and co-accused Ramraja Singh. In aforesaid crime, motorcycle No.MP35 ME 2668 which was allegedly being used in commission of the crime, was seized. The petitioner/accused Kuldeep moved an application for taking aforesaid vehicle in interim custody on the ground that he is being put to inconvenience because of seizure of aforesaid vehicle. This application was dismissed by the learned Judicial Magistrate First Class, Laundi by order dated 28.7.2017, on the sole ground that the petitioner/accused Kuldeep had not filed registration certificate of the vehicle in order to demonstrate that he is registered owner of the vehicle. The petitioner filed a criminal revision No.158/2017 against order dated 28.7.2017 in the Court of learned Additional Sessions Judge, Laundi, district Chhatarpur. Aforesaid criminal revision was dismissed by learned Additional Sessions Judge solely on the ground that a letter has been written in the case for initiation of proceedings for confiscation of the vehicle; therefore, learned Magistrate had committed no error of law and fact in dismissing the application for interim custody of the vehicle.

Learned counsel for the petitioner submits that the registration certificate of the vehicle was seized by the police along with vehicle and is available in the case diary. It has further been submitted that though, the police had written to the Collector for initiation of confiscation proceedings of the motorcycle, no intimation had been received from Collector to learned Judicial Magistrate First Class regarding initiation of confiscation proceedings; therefore, in view of the provisions of Section 47-D of the Excise Act, the jurisdiction of the learned Magistrate to release the vehicle in interim custody, was not ousted; as such, both the Courts below have grievously erred in dismissing the application for release of vehicle in interim custody.

Learned Government Advocate for the respondent/State on the other hand has opposed the petition under Section 482 of the Cr.P.C. and has supported the impugned orders passed by the Courts below. However, he has conceded that the registration certificate has been seized by the police along with the vehicle and copy thereof is available in the case diary.

A perusal of the impugned orders reveals that none of the Courts below had disposed of the application for release of vehicle in interim custody, on merits. The applications have been dismissed on technical grounds.

A perusal of the copy of registration certificate which is available in the case diary reveals that petitioner Kuldeep is registered owner of the motorcycle in question. Likewise, a perusal of report dated 21.2.2019 sent by the SHO, police station Sarvai, district Chhattarpur reveals that letter dated 29.6.2017 was written by SHO, Sarvai to the Superintendent of Police, Chhatarpur for confiscation of the vehicle. The Superintendent of Police, Chhattarpur had written on 18.1.2019 to Collector, Chhatarpur for initiation of proceedings for confiscation of the vehicle. Accordingly, the proceedings for confiscation of the motorcycle has been initiated by the Collector and District Magistrate, Chhattarpur. However, it is clear that no intimation under clause (a) of sub-section (3) of Section 47-A of the Excise Act has been received from Collector by learned Judicial Magistrate First Class, Laundi; therefore, in view of the provision of Section 47-D of the M.P. Excise Act, 1915, the jurisdiction of learned Magistrate to pass an order regarding disposal, custody etc. of the conveyance seized in the case, is not ousted. Thus, learned Additional Sessions Judge grievously erred in holding that since, the proceedings for confiscation have been initiated by the Collector, the jurisdiction of learned Magistrate to release the vehicle in interim custody was barred. In this regard the judgment rendered by a co-ordinate bench of this Court in the case of Suresh vs State of M.P. 2003(I) MPLJ 638 may profitably be referred to.

In aforesaid view of the matter, the impugned order is not sustainable in the eyes of law and is liable to be set aside. Accordingly, impugned orders dated 28.7.2017 passed by the learned Judicial Magistrate First Class, Laundi, district Chhattarpur and order dated 7.9.2017 passed by learned Additional Sessions Judge, Laundi, district Chhattarpur in criminal revision No.158/2017, are set aside.

Since, none of the Courts below has applied its mind to the facts of the case on merits, the matter is remitted back to the trial Court to dispose of the application for release of the motorcycle in question in interim custody, on merits.

This misc. criminal case accordingly stand disposed of.

Certified copy as per rules.