Prem Narayan Singh, J
This Criminal Revision has been filed by the State being crestfallen by the order of learned Sessions Judge, Dewas, dated 28.11.2019, passed in CRR No. 196/2019, whereby the learned Judge by allowing the revision against the order of Chief Judicial Magistrate, Dewas, passed the order of releasing of the vehicle Mahindra Bolero Pickup No. MP41/GA/1952 to interim custody of the respondent.
2. Facts of the case in brief are that the respondent is the registered owner of the aforesaid vehicle, filed an application before the learned Chief Judicial Magistrate that no intimation for confiscation of the aforesaid vehicle has been received, hence, the said vehicle which is involved for transporting 270 bulk liters of liquor is liable to be released. Learned Chief Judicial Magistrate has dismissed the application stating that the intimation for confiscation of the vehicle has been received on 30.9.2019. Earlier, the learned Sessions Judge relying upon the case of Suresh Dave Vs. State of MP 2003 (1) MPHT 439 remanded the matter back to learned Chief Judicial Magistrate with a direction to take into consideration the intimation dated 26.9.2019 sent by Collector to Chief Judicial Magistrate and pass a fresh order after giving due opportunity of hearing to all concerned. Even after this order, the learned Chief Judicial Magistrate after considering the intimation dated 30.9.2019, dismissed the application and thereafter released the vehicle.
3. Learned counsel for the applicant submitted that the order of learned Revisional Court is against law because the proceedings of confiscation was initiated by the Collector. The ordersheet dated 26.9.2019 has been filed before the Court. In spite of that learned Judge has passed the order to release the vehicle which is against the provision under Section 47-D of Excise Act. As such, the learned Sessions Judge has erred in allowing the revision.
4. Per contra, learned counsel for the respondent submitted that on the date of filing application before the learned Trial Court, the intimation was not sent to the learned Chief Judicial Magistrate, he has the power to release the vehicle, therefore, he should have released the vehicle. Only allegation against the vehicle is of transporting the illegal country made liquor and since the Collector has not sent any intimation to the criminal Court about initiation of confiscation proceedings regarding the seized vehicle, the criminal Court has jurisdiction to pass the order of interim custody.
5. In backdrop of the rival submissions and record available before this Court, the point for determination is as to whether the order of learned Revisional Court is incorrect in the eyes of law and facts?
6. Before dwelling upon the point, it would be apposite to refer here the relevant portion of Section 47-D of Excise Act:-
"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. On bare reading of the aforesaid provision, it is crystal clear that if the criminal Court has been given intimation as per the provision under Section 47- A(3)(a) about initiation of confiscation proceedings by the Collector regarding confiscation then the criminal Court is seized to pass any order in the matter because it has no jurisdiction to pass any order for interim custody of vehicle. In this regard, the law laid down by Coordinate Bench of this Court in Suresh Dave Vs. State of Madhya Pradesh 2023 law suit (MP) 14 is worth to refer here:-
“5) We have carefully perused the chargesheet. The allegation in the chargesheet is that hydrocarbons mixed in different proportions by using mixing machines create a mixture that looks exactly like petrol and diesel. It is alleged that such a mixture smells like petrol and diesel. It is alleged that Shivam Industries supplied the mixture and sold it to the petrol pumps instead of petrol or diesel. It is alleged that by cheating ordinary customers, the appellants are causing illegal losses to the customers. Even the Government is deprived of the tax which can be levied on petroleum and diesel. It is alleged that after a search of Shivam Industries' factories, it was found that there were several tanks of thousands of litres capacity, out of which five were found to be filled with different hydrocarbons. As per the chargesheet, on 11th October 2021, the hydrocarbon mixture was loaded in the tanker in question.
6) Thus, the prosecution's case is that a hydrocarbon mixture was found in the seized tanker, which was being sold by the appellants, representing it to be petrol or diesel. Along with a letter dated 13th October 2021, the police forwarded four samples of the liquid seized from the tanker to the Forensic State Laboratory at Sagar in Madhya Pradesh, requesting the laboratory to submit an opinion on whether petrol in the samples at Exhibit A and B is of human grade used as a normal fuel in vehicles. The second question posed to the laboratory was whether there is any standard level petrol or diesel used as a normal fuel in samples C and D or if the liquid has been adulterated. Similarly, the Collector (Food) sent another set of samples to the State Level Coordinator, IOCL, Bhopal, for testing. The impugned judgment notes that along with the letter dated 3 rd November 2021, samples were also sent to the Laboratory Incharge, BPCL, Indore. It appears that the laboratory in charge of the BPCL laboratory has not submitted the result of the analysis. That is the specific observation in the impugned judgment. By the order dated 27th March 2023, the learned counsel appearing for the respondent was granted time to ascertain whether a report was received from the laboratory of BPCL. The learned counsel for the respondent stated on instructions that till date, the report of analysis has not been received.."
8.In this regard, the law laid down in the case of Prakash Vishwakarma Vs. State of Madhya Pradesh and another ILR (2018) MP 2722 (passed in MCRC No. 33134/2018, order dated 24.9.2018) is also worth considering in which this Court while considering the provisions about jurisdiction of the Magistrate to release the vehicle has been ordained as under:-
"11. Learned Additional Sessions Judge disposed of the criminal revision on 30.6.2018 holding that the required intimation had been given by the District Magistrate by letter dated 30.1.2018. Actually, both the Courts below ought to have decided the matters with reference to the date of 15.1.2018, i.e., the date on which the application under Section 457 of the Cr.P.C. was decided by learned Magistrate. A Criminal revision cannot be dismissed on the sole ground that the required intimation has been received on some date after dismissal of the application for temporary custody by learned Magistrate and before disposal of the criminal revision by the revisionary Court."
9. This Court in the case of Kunjilal Vaishya Vs. State of Madhya Pradesh 2020 law suit MP (909) has held that in the absence of specific requirement of intimation under Section 47-A (3)(a) and Section 47-D of Excise Act, jurisdiction of Court with regard to releasing the vehicle cannot said to be seized. Further, in a recent judgement of this Court in Karan Singh Vs. State of Madhya Pradesh (2023) law suit (MP) 210, the coordinate Bench of this Court has held as under:-
8. Further elaborating his submission, learned counsel for the petitioner contends that unless intimation under Clause (a) of sub-section (3) of Section 47-A of the Act is received by the Court, the Court has full jurisdiction to deal with the application for 'supurdagi' on merits. That has not been done.
9. Upon hearing counsel for the parties, at the outset, it is expedient to observe that if law requires a particular act to be done in a particular manner, it can be done in the same manner and not otherwise. Conjoint reading of Section 47-A and 47-D of the Act suggests that jurisdiction of the Court is barred, if intimation of initiation of confiscation proceedings of seized property is received under clause (a) of sub-section (3) of Section 47-A of the Act.
10. In the case of Suresh R. Dave, Prateek Parik (supra) and in the case of Kishore and Narendra (supra) it has been held that if there is no communication regarding initiation of proceedings of confiscation by the Collector to the Court prior to filing of application for "Supurdaginama", the bar under Section 47(D) of the Act would not come in the way while deciding the application under Section 451/457 of the Code of Criminal Procedure. The petition was allowed and the orders were set aside.The law laid down in the case of Suresh R. Dave and Prateek Parik (supra) has not been considered in the judgment passed in the case of Anil Dhakad (supra) which has been relied upon by the respondents and, therefore, it is held that the law laid down in the case of Anil Dhakad (supra) is per incuriam.
10. In view of aforesaid propositions, the matter has been perused.
11. It is apparent that the application under Section 451/457 of CrPC was made on 26.9.2019. On 27.9.2019, an intimation was given by the office of Excise Dewas to learned CJM that a letter has been written to the District Magistrate Dwas for confiscation of the vehicle seized in the case. As such, it is clear that till 27.9.2019, neither the intimation as required under Section 47- A(3)(a) was received by the learned CJM nor confiscation proceedings had been initiated, no information has been received till 27.9.2019, the date on which the application under Section 451/457 of CrPC was decided. In this regard, Annexure-6 filed by the applicant, is also worth to seen. It is not an information of the Collector in accordance with provision predicated under Section 47- A(3)(a) and Section 47-D of Excise Act but rather it is only an ordersheet of Collector.
12. In upshot of the aforesaid analysis it is evident that on 27.9.2019, learned CJM, Dewas has jurisdiction to grant the vehicle in temporary custody to its registered owner. In view of the case of Sundarbhai Ambalal Vs. State of Gujrat AIR 2003 SC 638, the said vehicle cannot be left to be rotten in the Excise station. As such, the order of learned Sessions Judge of allowing the criminal revision is inconsonance of the aforesaid provision of Section 47- A(3)(a) and 47-D of Excise Act.
13. Accordingly, the present petition preferred by the State, being devoid of merits, is dismissed and the impugned order of learned Session Judge is hereby affirmed.
