Shital Sahu vs State Of Chhattisgarh

The petitioner has filed this petition under Section 482 of the Cr.P.C. assailing the order dated 27.07.2021, passed by learned Thirteenth Additional

Sessions Judge, Raipur, District- Raipur (C.G.) in Criminal Revision No. 79/2021, affirming the order dated 10.05.2021 passed by learned Judicial

Magistrate First Class, Raipur, District Mahasamund in MJC No. 252/2021 rejecting application of the petitioner filed under Section 457 of the Cr.P.C.

for Supurdnama of the Maruti Alto Car bearing registration No. CG-04-HR-8069.

The facts as projected by the petitioner in the instant petition, in brief, are that the petitioner is the owner of Maruti Alto Car bearing registration No.

CG-04-HR-8069. The said vehicle was seized by Police Station- Arang, District- Raipur in connection with Crime No. 217/2021 under Section 34(2)

of the Chhattisgarh Excise Act, 1915. The allegation of the prosecution is that 40.02 bulk liters of liquour was being transported through the said

vehicle. The petitioner filed an application under Section 457 of the Cr.P.C. before the Judicial Magistrate First Class, Raipur inter alia stating that he

is the owner of the aforesaid vehicle, therefore, custody of the vehicle be given to him on Supurdnama, which was rejected by learned Judicial

Magistrate First Class, Raipur, as there is provision of confiscation of the vehicle under Section 34 (3) of the C.G. Excise Act, 1915.

Learned Judicial Magistrate First Class, Raipur, while rejecting the application under Section 457 of the Cr.P.C. has recorded a finding that as per

the case diary, the vehicle was seized and confiscation proceedings on the strength of the application submitted by Police Station, Arang, have been

initiated. The Superintendent of Police, Raipur has requested for confiscation of the vehicle to the District Magistrate, Raipur, as such, the proceedings

for confiscation are pending, therefore, the application is liable to be rejected and accordingly he has rejected the same. The petitioner filed a revision

petition before the learned Additional Sessions Judge, Raipur assailing the said order who after considering the fact that the Superintendent of Police

has already initiated the confiscation proceedings as provided under Section 34 (3) of the CG Excise Act, 1915 before the learned District Magistrate,

Raipur and the finding recorded by the learned Judicial Magistrate First Class, Raipur is legal and justified. Therefore, Thirteenth Additional Sessions

Judge, Raipur, dismissed the criminal revision vide impugned order dated 27.07.2021.

The petitioner has assailed both these orders by filing this instant petition under Section 482 of the Cr.P.C before this Court.

During the course of arguments, learned counsel for the petitioner would submit that since the Superintendent of Police has not informed the

Magistrate about confiscation of the vehicle in question, therefore, proceedings before the Chief Judicial Magistrate and learned Revisional Court are

maintainable and the orders passed by both the courts below are illegal as provisions of Section 47-D of the Act is not applicable in the present facts

of the case, therefore, the trial Court, which is competent Court, should have given the interim custody of the vehicle to the petitioner.

On the contrary, learned State Counsel opposes the prayer of learned counsel for the petitioner and stated that the order passed by both the courts

below are legal and justified and need not to be interfered with.

I have heard learned counsel for the parties and perused the material placed on record.

Before adverting to the submission made by the learned counsel for the petitioner, it would be appropriate to note Section 47-D of the Act, 1915,

which reads thus :-

“47-D. Bar of jurisdiction of the Court under certain circumstances â€" 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 sub-Section 3 of Section 47A about

the initiation of the proceedings for confiscation of seized property.â€​

From perusal of the Section 47-D of the Excise Act, it is quite apparent that if the circumstances and situation are one and the same, then provision

of Section 47-D of the Excise Act, will override any other law for the time being in force.

The Hon'ble Supreme Court has explained the words “notwithstanding anything contained in the Act or any other law for the time being in

forceâ€​ in case of Ishar Das vs. The State of Punjab 1973 (2) SCC 1965, has held as under:-

“7..............In this respect we find that sub-section (1) of Section 4 of the Probation of Offenders Act contains the words “notwithstanding

anything contained in law for the time being in forceâ€. The above non obstante clause points to the conclusions that the provisions of Section 4 of the

Probation of Offenders Act would have overriding effect and shall prevail if the other conditions prescribed are fulfilled. Those conditions are : (1) the

accused is found guilty of having committed an offence not punishable with death or imprisonment for life, (2) the court finding him guilty is of the

opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to

release him on probation of good conduct and (3) the accused in such an event enters into a bond with or without sureties to appear and receive

sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of

good behaviour....â€​

From the records, it is quite clear that the Superintendent of Police has already initiated proceedings for confiscation of the vehicle, which is

evident from letter dated 04.05.2021 written by Superintendent of Police to the District Magistrate. This factual matrix with regard to request made by

the Superintendent of Police, Raipur to the District Magistrate for confiscation of the vehicle has not been disputed by the petitioner or he has not

pointed out that the findings recorded by both the Courts below on this aspect of the matter are perverse or contrary to the record as such, I am of the

view that proceedings have already been initiated by the Superintendent of Police therefore, the learned trial Magistrate as well as Revisional Courts

have no jurisdiction to entertain the application filed by the petitioner for grant of Supurdnama. Thus, the rejection of the application for Supuradnama

by the learned Judicial Magistrate First Class vide its order dated 10.05.2021, as affirmed by the learned Sessions Judge in its judgment dated

27.07.2021 is legal and justified, therefore, the instant CRMP is liable to be dismissed.

Before parting with the case, I would observe that as reflected in the orders, the proceedings of confiscation have already been commenced by

the District Magistrate, Raipur and the vehicle can be given on interim supuradnama by the District Magistrate, Raipur considering the law laid down

by the Hon'ble Supreme Court in the matter of Sunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283, which has also been reiterated by

the Hon'ble Supreme Court in the matter of General Insurance Council and others Vs. State of Andhra Pradesh and others (2010) 6 SCC 768,

wherein the Hon'ble Supreme Court has given direction with regard to seized vehicle and held as under :-

“13. In our considered opinion, the aforesaid information is required to be utilised and followed scrupulously and has to be given positively as and

when asked for by the insurer. We also feel, it is necessary that in addition to the directions issued by this Court in Sunderbhai Ambalal Desai v. State

of Gujarat reported in (2002) 10 SCC 283, considering the mandate of Section 451 read with Section 457 of the Code, the following further directions

with regard to seized vehicles are required to be given:

“(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery

before the jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary

photographs may be taken duly authenticated and certified, and a detailed panchnama may be prepared before such release.

(B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with.

(C) Insurer would submit an undertaking/ guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company

in the event that the magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. The undertaking/guarantee

would be furnished at the time of release of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds

may be dispensed with looking to the corporate structure of the insurer.â€​

The petitioner is at liberty to file an application for interim Supuradnama before the learned District Magistrate, Raipur and in-turn the learned

District Magistrate, Raipur in the eventuality of filing of the application for grant of Supuradnama of the vehicle, will consider and decide the same

without being influenced by any of the observations made by the learned District Judge or the Magistrate First Class in accordance with law laid down

by the Hon'ble Supreme Court in the matters of Sunderbhai Ambalal Desai (supra) & General Insurance Council and others (Supra).

In view of the aforesaid legal position, it is held that the learned Judicial Magistrate First Class, Raipur as well as the learned Sessions Judge,

Raipur have not committed any irregularity or illegality warranting interference by this Court.

Consequently, the instant petition filed under Section 482 of the Cr.P.C. is dismissed with the aforesaid observations and liberty granted in favour

of the petitioner.