@JUDGMENTTAG-ORDER
Shiv Dayal, J.
This revision has been filed by the State being aggrieved by an order of the Additional District Magistrate (Judicial), Rewa, u/s 523, Criminal Procedure Code.
On the night intervening the 7th and 8th June 1968, the Excise Sub-Inspector checked near Govindgarh Police Station a truck (No. MPA 2183). It was found carrying 178 bags of Mahua. It is alleged on behalf of the Petitioner that neither the driver nor the owner of truck had a permit for transporting Mahua. Thus Mahua was being transposed in contravention of Rule 4(2) of the M. P Mahua rules, 1959. Accordingly, the truck and the Mahua were seized. On the following day, that is, 8th June, Narayan Singh, the owner of the truck, made an application to the Additional District Magistrate (Judicial), Rewa, for release of the truck after being unloaded. The learned Magistrate allowed that application and ordered that the truck be placed in the custody of Narayan Singh as Supurddar. The State went in revision before the Sessions Judge, Rewa. The learned Sessions Judge modified the order by imposing a condition that the truck be not released unless security for Rs. 8,000/- was furnished.
The contention for the State in this revision is that the orders passed by the learned Magistrate and the learned Sessions Judge arc without jurisdiction. It is argued that they had no power to release the truck with or without any condition because there was no inquiry or trial before them and the only remedy available to Narayan Singh was to approach the Collector u/s 48 of the M. P. Excise Act, 1915.
It is not in dispute that when the learned Additional District Magistrate passed his order dated 8 June 1968, there was no inquiry or trial before him. In fact, no challan has been put up as yet.
Shri K. K. Dube, learned Government Advocate, firstly, contends that no Magistrate can exercise any powers under the Code of Criminal Procedure unless and until a complaint or a report of the Collector or of an Excise Officer authorised by him in this behalf is made to the Magistrate; and his jurisdiction is ousted until then, by virtue of Section 61 of the C P. Excise Act, 1915, (hereinafter called the Act). The second contention is that there being a special provision in Section 48 of the Excise Act, the provisions of the Code of Criminal Procedure relating to disposal of property cannot be invoked. The third contention is that the Magistrate could not act on the application of the owner of the truck because no report had been made to the Magistrate by the officer who seized it.
I shall deal with the first point first. u/s 37 of the Excise Act, carrying Mahua without permit is punishable as being in contravention of the M. P. Mahua rules, 1959. It is also true that Section 61 of the Act imposes a limitation on the Magistrate taking cognizance of an offence which is punishable u/s 37 and other sections stated in it, except on a complaint or report of the Collector or of an Excise Officer authorised by him in this behalf. The connotation of the expression "taking cognizance" of an offence seems to be beyond doubt. Cognizance of an offence is taken by a Magistrate in accordance with Section 190, Criminal Procedure Code. But that section does not limit the powers of the Magistrate u/s 523 of the Code to make an order respecting disposal of the property seized by a Police Officer.
It is clear from the scheme of Chapter 43 of the Code of Criminal Procedure that there are three different provisions for different stages at which the Court may pass suitable orders for the disposal of property: (1) Before the Court receives a charge sheet, the matter is covered by Section 523 of the Code; (2) during the pendency of an inquiry or trial, the matter comes within Section 516-A of the Code; and (3) on the conclusion of an inquiry or trial, the matter is within the purview of Section 517 of the Code. (See
The provisions of Section 523, Criminal Procedure Code, become applicable, by virtue of Section 5(2) of the Code, which enacts that all offences under any law, other than the Penal Code, shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, but subject to any special enactment regulating investigation, inquiry, trial Or otherwise dealing with such offences. It seems to me quite clear that: (1) where a complete procedure is provided in any enactment for the trial of an offence under a special or local law, that procedure must be followed and not the one prescribed by the Code of Criminal Procedure; 2) where an enactment provides a special procedure only for some matters, such procedure must be followed as regards those matters only; and in regard to other matters on which that enactment is silent, the provisions of the Code of Criminal Procedure must be applied; and (3) where there is no enactment prescribing the procedure for dealing with an offence under a special or local law, the procedure laid down in the Code of Criminal Procedure must be applied. In
Exclusion of jurisdiction of a Court of general jurisdiction can be brought about by the setting up of a Court of limited jurisdiction in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal.
See also Shambhuji Warhade v. Shankarappa Bhanagire I L R (1960) Bom. 692. Judged by these tests, it has to be seen whether there is any provision in any other enactment for the disposal of a property seized under the Excise Act. And, this brings me to the second contention raised by the learned Government Advocate.
Under the M. P. Excise Act, 1915, Section 46 provides for liability of certain things to confiscation. Under Sub-section (1) of Section 47, a Magistrate may make an order of confiscation. Under Sub-section (2) of that section, the Collector may order confiscation where the offence has been committed under the Act but the offender is not known or cannot be found. The provisions contained in Sections 46 and 47 provide for the liability to confiscation and the power to order confiscation. There is no provision in the Excise Act which empowers a Magistrate to make an order for disposal of property seized which is liable to confiscation. As I read Section 48, which has been referred to by the learned Government Advocate, it seems to be of no application to a case such as this. That section confers powers on the Collector to compound certain offences, including one u/s 37. The Collector is empowered under Clause (a) of Sub-section (1) to accept a sum not exceeding Rs. 200 /- by way of composition for the offence specified in that Sub-section or to impose as penalty a sum not exceeding Rs. 400/- and to order confiscation of the article seized. This is followed by Clause (b), which reads thus:
48(1) The Collector may-
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(b) in any case in which any property has been seized as liable to confiscation under this Act, at any time before an order of confiscation has been passed by a Magistrate, release the same on payment of the value thereof as estimated by the Collector.
Under this clause, the Collector has the power to release any property on payment of the value as estimated by him and that power can be exercised by him so long as the Magistrate has not passed an order of confiscation. But, this merely confers a power to substitute money value for the property which has been seized as liable to confiscation. It is obvious enough that this power can be exercised when the Collector accepts to compound an offence. Clause (b) of Section 48(1) is connected with Clause (a). The power conferred under Clause (b) of Sub-section (1) cannot he exercised except when the occasion is one where the Collector exercises his powers under Clause (a) which empowers him to order confiscation of articles when he accepts a sum of money by way of composition for the offence or imposes a penalty- Furthermore, it is quite clear from the language employed in Clause (b) that it is not analogous to the provisions contained in Section 523. Criminal Procedure Code. The words "release the same on payment of the value thereof as estimated by the Collector" refer to final release in lieu of payment of the value of the property.
As I read Section 48 of the Excise Act, it seems to be undoubted that where a property has been seized as being liable to be confiscated under the provisions of that Act and the question is where that property should be kept or in whose custody it should be placed until an inquiry or trial begins, Section 48 of the Excise Act is inapplicable, and the question must be dealt with u/s 523, Criminal Procedure Code. Section 48 of the Excise Act does not correspond, nor as analogous to Section 523, Criminal Procedure Code. In the absence of any provision in any special enactment, Section 523, Code of Criminal Procedure trully comes into play.
Learned Government Advocate strongly relies on
All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
If it was limited to investigation, inquiry or trial, the words "otherwise dealt with" would not have been there. Entering into any question connected with an offence is "dealing with" the offence within the meaning of Section 5(2), Criminal Procedure Code. Therefore, entering into a question of custody or disposal of property in respect of which it is alleged that an offence has been committed, is "otherwise dealing with" that offence within the meaning of the Code, and the provisions of the Code will apply subject to any special enactment regulating such question.
I do not see any words in Section 523, Code of Criminal Procedure which exclude its application to a property which is liable to confiscation; for instance, a contraband article. In the absence of any such fetters, it cannot be said that the Court has no jurisdiction to make an order regarding disposal of property seized, even if under the law it is liable to confiscation on proof of certain facts. The matter is discretionary and the Court has to exercise its discretion judicially, as any other discretion. For example, in the case of opium or fire arms, the Court might well exercise its discretion in not entrusting them to any private individual. On the other hand, in the case of a property which is used merely as conveyance or any goods which arc liable to deterioration, the Court might make a suitable order for disposal of the property. Thus, the question is one of exercise of discretion, not of jurisdiction. The conferral of power to seize or detain any property, which is liable to confiscation, does not mean that the Court cannot make a suitable order for its disposal u/s 523, or, for the matter of that, u/s 516-A or section 517, Criminal Procedure Code.
Adverting now to the third contention raised on behalf of the State that u/s 523, Criminal Procedure Code, action can be taken only on a report of the Police Officer upon seizure of property, I must say that I do not find anything in the provisions of that section to impose such a limitation on the exercise of the Magistrate''s powers under it. As I read that section a party affected by the seizure is entitled to move the Magistrate for an order u/s 523. To read that section otherwise is to render it nugatory, because then the Police Officer or any other officer authorised to seize property may not report about such seizure at any time and for any length of time. No doubt, the section enjoins the Police Officer to report such seizure to the Magistrate so that the latter may make suitable order for its disposal. But it cannot be said that if such officer chooses not to report, the Magistrate is powerless and he cannot act on an application made by a person affected by the seizure. Otherwise, the party would be left without remedy. There can be no doubt that when the Magistrate is moved by a party, he will not act upon it at once but will first inquire from the Police Officer or such other officer and have his report.
In the present case, when Narayan Singh moved the learned Magistrate on 8 June 1968, he gave a copy of the application to the Court Inspector of the Excise Department to obtain instructions and report back to the Court. Shri Tiwari, Court Inspector, orally informed the Magistrate that the truck containing Mahua had been seized on the previous night and that it was being unloaded. Beyond this he was not prepared to give any other information. No report was filed.
I am told that even uptil now no challan has been put up before the Court against the driver or owner of the truck. It can very well be seen that lying of a truck idle entails considerable loss to its owner. It was only just and proper to place it in the custody of a suitable person until another order was passed by a competent authority or officer. In my opinion, the Magistrate could not be said to have been in error when he directed the custody of the truck to be restored to its owner, as supurddar and the learned Sessions Judge was right in holding that the Magistrate''s order should have been conditional. It has not been urged before me that the amount of security, that is, Rs. 8,000, is inadequate.
The revision is dismissed.
