Sameer Kumar Sharma vs The State Bank Of India

This application is filed under Section 482 of Cr.P.C. assailing the order passed by learned Additional Sessions Judge, Dharmpuri District-Dhar in Criminal Revision No.103/2016 which was in its turn directed against the order passed by learned Judicial Magistrate First Class, Dharampuri in Crime No.106/2016, Excise Department, Dharmpuri Circle under Section 34(2) of Excise Act.

The relevant facts are that the present applicant filed an application under Sections 451 and 457 of Cr.P.C. which was dismissed by learned Magistrate by impugned order dated 26.06.2016 on the ground that confiscation proceedings for confiscating seized vehicle were already initiated, and therefore, the Magistrate ceased to have jurisdiction to grant interim custody of the vehicle.

Aggrieved by this order, a revision was preferred. The revision was dismissed by the impugned order passed by the learned Additional Sessions Judge, Dharmpuri District-Dhar. The learned Sessions Judge observed that the seized vehicle was still unregistered. The proceedings for confiscation of the vehicle were already commenced by the District Magistrate under Section 47(A) Sub Section 3 Clause-A of M.P. Excise Act, and therefore, once proceedings were commenced and intimation of such proceedings was received by the concerning Magistrate, the Magistrate could not grant interim custody of the vehicle. The Learned Sessions Judge also observed that non-registration of the vehicle by the present applicant is also suspicious. In this view of the matter, the revision was dismissed.

Learned counsel appearing for the applicant places reliance on order passed by co-ordinate Bench of this Court in Case of Suresh R. Dave Vs. State of M.P., in which, the co-ordinate Bench of this Court observed that criminal Court have no jurisdiction to pass any order for interim custody of the vehicle, if intimation regarding confiscation proceedings given by the Collector.

In this case, learned counsel for the applicant submits that the order passed on 21.06.2016, the intimation regarding confiscation was issued by District Magistrate on 20.06.2016. The intimation was officially received by the Magistrate on 27.06.2016. Learned counsel for the applicant submits that when the order was passed, the intimation was not received. According to the provisions of M.P. Excise Act, the intimation should have been given by the District Magistrate. If the Magistrate receives intimation from any other source, this does not bar his power to grant interim custody under Sections 451 and 457 of Cr.P.C. The co-ordinate Bench of this Court in Para-5 of Suresh R. Dave (supra) observed as under:-

"Having heard the learned counsel for the parties and after perusing the entire record, this Court is of the opinion that as per the facts mentioned in para 4 of the Revisional Court, it is crystal clear that the Excise Department of the Collector has not sent any intimation to the Criminal Court about intimation of confiscation proceedings regarding the seized Tata Sumo. Under Section 47-D of the Act, the Criminal Court has no jurisdiction only when the Collector sent the intimation about initiation of confiscation proceeding of the vehicle, but in the present case, no such intimation was ever sent and received by the Criminal Court. The learned Revisional Court has taken cognizance of some document or letter lying in the case diary showing the fact about intiation of confiscation proceeding before the Deptt.. But that alone is not sufficient. The requirement of Section 47-D of the Act is that the Criminal Court has to be intimated by the Collector about initiation of confiscation proceedings of the vehicle or the other seized property involved in that particular case. But, no such intimation has yet been sent by the Collector to the Criminal Court. Hence, the Criminal Court has jurisdiction to entertain the application and pass appropriate order".

The provisions of the Act are very clear. The Magistrate should receive an intimation from District Magistrate to the fact that the proceedings for confiscation of the seized vehicle had been commenced, however, it is equally true that strict interpretation of such provisions is not called for. Looking to the anti-social nature of the crime under the provisions of M.P. Excise Act, which had direct impact on health of the common person, the intention of the legislature was that stringent action should be taken against the offender. Taking this object into consideration, the duty of the Magistrate was not only to refuse interim custody of the vehicle, when he receives an intimation of commencement of proceedings for confiscation of the vehicle from District Magistrate, but also tenunsure on request of seizing agency that they had requested the District Magistrate to initiate the said proceedings for confiscation, whether the proceeding were initiated. If the Magistrate before giving interim custody of the vehicle to the owner or to any other person ensures from the District Magistrate regarding confiscation proceeding, in considered opinion of this Court, there was no violation of any provisions of law.

In this view of the matter, in this, the prosucuting agency informed the Magistrate about the proceedings even when the Magistrate was passing the order, the intimation had already been issued by the District Magistrate one day prior to passing of the order. The letter was received in the Court on 27.06.2016, and therefore, it cannot be said that Magistrate failed to exercise the power or present applicant had any right to claim interim custody of the vehicle merely because the intimation was not officially received by the Magistrate.

In this view of the matter, in the considered opinion of this Court, no case is made out for any interference in the order passed by both the Courts below. There appears to be no abuse of process of the Court and there appears to be no injustice stare at fact of the Court, and therefore, no case is made out for interference using the power granted to this Court under Section 482 of Cr.P.C.

Accordingly, this application is dismissed. The applicant is at liberty to approach the District Magistrate for grant of interim custody of the vehicle under appropriate provisions of law .