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Published : November 16, 2013 | Author : YSRAO JUDGE
Category : Criminal law | Total Views : 10576 | Rating :

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

Release of Vehicles By Magistrate In Excise And Forest Cases

Only when the vehicle involving in a forest offence is seized by the police authorities and is produced before the Magistrate and no confiscation proceeding is pending then and then only the Magistrate would have jurisdiction to pass any order in exercise of power u/S. 457, Cr. P.C.’

It is often confuse to Some Magistrates, especially newly recruited junior civil judges, who are working on criminal side to release of vehicles involving in excise and forest cases. In order to remove such paucity, I deem it is apt to discuss the case-law relating to this aspect. In case of Sunderbhai Ambalal Desai v. State of Gujarat, the Hon’ble Apex Court, as to release of vehicles, has made observations at paragraphs 15, 16, 17 and 18 as under: 15. Learned senior counsel Mr.Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time. 16. However, the learned counsel appearing for the petitioners submitted that this question of handling over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons. 17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. 18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. It was further observed at paragraph 21 as under: 21. However, these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.c. are properly and promptly exercised and articles are not kept for along time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly.

What section 13E of the Andhra Pradesh Prohibition Act, 1995 speaks:
13E. Bar of Jurisdiction :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act II of 1974) when the Deputy Commissioner of Prohibition and Excise or the appellate authority is seized with the matter under this Act, no Court shall entertain any application in respect of liquor, any receptacle, package, covering, any animal, cart, vehicle or other conveyance used in carrying such liquor as far as its release, or confiscation is concerned and the jurisdiction of the Deputy Commissioner of Prohibition and Excise or the appellate authority with regard to the disposal of the same shall be exclusive.

What section 46E of the A. P. Excise Act, 1968 speaks.
46. E. Bar of jurisdiction:
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974) when the Deputy Commissioner of Excise or the appellate authority is seized with the matter under this Act, no Court shall entertain any application in respect of excisable articles any package, covering, receptacle, any animal, vehicle or other conveyance used in carrying such articles as far as its release, confiscation is concerned and the jurisdiction of the Deputy Commissioner of Excise of the appellate authority with regard to the disposal of the same shall be exclusive.

SHAIK GHANI’S CASE (DIVISION BENCH RULING):
Having noticed the conflict that the judgment of the Hon’ble Andhra Pradesh High Court in S. Kareemulla and Ors. v. Prohibition and Excise Sub-inspector, Nandyal and Ors. runs contrary to later judgment in M. Basha v. State of Andhra Pradesh 1997 (2) ALD (Cri) 473 (AP) with regard to release of the vehicle involved in an excise offence by the Magistrate, referred the matter to a Division Bench (Shaik Ghani vs The State Of A.P. ( 2007 CriLJ 246); Bench: A G Reddy, G Yethirajulu.) for an authoritative pronouncement. In this judgment, it was held that section 13(E) of the A. P. Prohibition Act, 1995, is pan materia with Section 46(E) of the A. P. Excise Act, 1968.

Criminal Courts will not have jurisdiction:
In Oruganti Seshachala Venkateswarlu v. Government of Andhra Pradesh; 2003 (1) ALD Cri 433, 2003 (2) ALT 444, it was held that ‘…whenever an excise offence is committed and anything liable for confiscation under Section 43 is seized or detained under the provisions of A. P. Excise Act, the officer seizing or detaining such property shall produce the seized property along with a report before the Deputy Commissioner of Excise who has jurisdiction over the area and who can initiate confiscation proceedings after giving due notice to the parties if he satisfied that an offence has been committed, whether or not a prosecution is instituted for the commission of such an offence. The sections do not debar the Police/Excise officials from seizing the vehicle for registering a case and reporting crime to the Magistrate. In view of the express bar contained under Section 46-E and when the property is not produced before the Court in an inquiry or trial, the Magistrate is not empowered under Section 457 of the Code to make such order as he thinks fit, respecting the disposal of the property. The general provision of Section 452 of the Code with regard to disposal of property by a Criminal Court such as by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof, and that Section 457 investing a Magistrate to make an order for disposal of property seized by a police officer and not produced before a Criminal Court during an inquiry or trial, must necessarily yield where a statute makes a special provision with regard to forfeiture of any property and its disposal.’

In Oruganti Seshachala Venkateswarlu v. Government of Andhra Pradesh; 2003 (1) ALD Cri 433, 2003 (2) ALT 444, it was observed that in State of A.P. v. P.K. Mahammad, 1978 (1) APLJ 391 held that general power of the Court under Section 452 of the Code or that of the Magistrate under Section 457 to direct disposal of seized property, has to be read along with and in the context of the special procedure prescribed by the A. P. Forest Act. The same view was affirmed by a Division Bench of this Court in Mohd. Yaseen v. Forest Range Officer, Rayachoti, (1980) 1 Andh LT 8, dissenting with the earlier view taken by another Division Bench of this Court in Smt. Hazi Begum v. State of A.P. 1978 (2) APLJ 191 : (1979 Cri LJ NOC 42), which was reversed by the Supreme Court in C.A. No. 1216 of 1979 dt. 23-4-1979.

The Supreme Court further in Divisional Forest Officer v. G. V. Sudhakar Rao, while affirming the view expressed by His Lordship Justice B. P. Jeevan Reddy (as he then was) in the case of State of A.P. v. P.K. Mohammad (1978 (1) APLJ 391) (supra) and also a Division Bench of this Court in the case of Md. Yaseen v. Forest Range Officer. Rayachoty (1980 (1) Andh LT 8) (supra) held that it is only the Authorized Officer can order either for release or confiscation of the vehicle and the Magistrate could not have any jurisdiction to pass an order under Section 457 of the Code for disposal of such property, which is not produced before him.

A Division Bench of the A.P. High Court in DFO v. District and Sessions Judge, 1985 (1) APLJ 47 held that the Sessions Judge has no revisory powers over the orders of the Authorized Officer; probably, he can entertain an appeal against the final orders passed by the Authorized Officer, therefore, release of lorry passed by the Sessions Judge is without jurisdiction. In case, the vehicle is produced before a Magistrate, the learned Sessions Judge may well interfere in exercise of his revisory powers but certainly not when the seized forest produce or the vehicle is not produced before a Magistrate.

In Oruganti Seshachala Venkateswarlu v. Government of Andhra Pradesh; 2003 (1) ALD Cri 433, 2003 (2) ALT 444, it was held that in Ganesh Traders, Dhermapuri, Karimnagar v. District Collector, 2002 (1) Andh LD 210 : (2002 Cri IJ 1105) (FB) at para 59 that under Section 452(2) of Cr. P. C., pending trial of criminal offence, the Criminal Court is competent to release any property subject to such person executing a bond is per incuriam.

In S. Kareemulla and Ors. v. Prohibition and Excise Sub-inspector, Nandyal and Ors., the Hon’ble single Judge of the High Court of A.P held as under: ...As a consequence of the discussion supra, this Court hold that the petitioners are entitled to approach the concerned Magistrate within whose jurisdiction the offence is said to have been committed or the vehicle is said to have been seized by making an application under Section 451, Cr. P. C., for release of the vehicle, which will be disposed of in accordance with law. It is also made very clear that in case they fail to get such a remedy, they should exhaust further remedy by way of appeal provided under the Criminal Procedure Code to the superior Courts like the Sessions Court etc. It is also made very clear that having due regard to the interpretation stated above, the petitioners are also entitled to approach the Excise authorities for such a remedy for interim custody of the vehicle, if the Magistrates in Criminal Courts are unable to pass any order for any reason, however the rule shall be to approach the Courts first. However, it is made very clear that they cannot have both the remedies and if they seek for one remedy they will be debarred from seeking another remedy....

In M. Basha v. State of Andhra Pradesh 1997 (2) ALD (Cri) 473 (AP), The High Court of A.P after referring to Section 13-E and Section 14 of the A. P. Prohibition Act held as under: ...A combined reading of the above two provisions would go to show that the property seized under the provisions of A. P. Prohibition Act shall have to be produced before the Deputy Commissioner of Excise having jurisdiction for the purpose of taking action in accordance with Section 13 of the Act. It is undoubtedly a mandatory provision. Then Section 13 provides for confiscation of the property in certain cases specified therein and an elaborate procedure is prescribed. Section 13(E) creates a bar of jurisdiction of the Criminal Court to entertain a petition for the disposal of the property. It is, however, true that seize-in of the matter by the Deputy Commissioner of Prohibition and Excise is a sine-qua-non for the operation of the above bar. Therefore, it would be open to the owners of the proper-ties to set up want of knowledge of the contravention of the provisions of the above Act by the driver or other persons to whom the vehicles was entrusted for a bona fide purpose and seek return of the vehicle under Section 451, Cr. P. C., provided the matter is not seized by the concerned Deputy Commissioner of Prohibition and Excise....

In Oruganti Seshachala Venkateswarlu v. Government of Andhra Pradesh after interpreting the provisions of A. P. Excise Act, 1968 and after referring the earlier judgments of the High Court of A.P in State of A.P. v. P.K. Mahammad 1978(1) ALT 8 (NRC) : 1978 (1) APLJ 391; Mohd. Yaseen v. Forest Range Officer, Rayachoty 1980 (1) ALT 8 (DB) and Supreme Court in Divisional Forest Officer v. G. V. Sudhakar Rao held as under (para 5 of Cri LJ): It was further held that in view of the statutory provisions referred to above, it is clear that whenever an excise offence is committed and anything liable for confiscation under Section 45 is seized or detained under the provisions of A. P. Excise Act, the officer seizing or detaining such property shall produce the seized property along with a report before the Deputy Commissioner of Excise who has jurisdiction over the area and who can initiate confiscation proceedings after giving due notice to the parties if he satisfied that an offence has been committed, whether or not a prosecution is instituted for the commission of such an offence. The sections do not debar the police/Excise officials from seizing the vehicle for registering a case and reporting crime to the Magistrate. In view of the express bar contained under Section 46-E and when the property is not produced before the Court in an inquiry or trial, the Magistrate is not empowered under Section 457 of the Code to make such order as he thinks fit, respecting the disposal of the property. The general provision of Section 452 of the Code with regard to disposal of property by a criminal Court such as by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof, and that Section 457 investing a Magistrate to make an order for disposal of property seized by a police officer and not produced before a criminal Court during an inquiry or trial, must necessarily yield where a statute makes a special provision with regard to forfeiture of any property and its disposal.

In State of W. B. v. Sujit Kumar Rana , the Supreme Court while considering Section 59-G of the Forest Act as amended by West Bengal Act 22 of 1988, which is identical to Section 13(E) and also various judgments rendered by it, and approving the decision of a Division Bench held that once the confiscation proceeding is initiated, the jurisdiction of the criminal Court in terms of 59-G of the Forest Act being barred and the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property, but the High Court can exercise such a power only in exercise of its power for judicial review and set-aside the order passed by the High Court.

In the said decision, the Supreme Court considered the decision rendered by it in Divisional Forest Officer v. G. V. Sudhakar Rao , whereunder the Supreme Court approved the decision of a Division Bench of the Andhra Pradesh High Court in Mohd. Yaseen v. Forest Range Officer (1980) 1 ALT 8 and held as under: ‘We find that a later Division Bench consisting of Kondaiah, C. J. and Punnayya, J. in Mohd. Yaseen v. Forest Range Officer (1980) 1 ALT 8 approved by the view expressed by Jeevan Reddy, J. in P. K. Mohd. Case (1978) 1 APLJ 391 and held that the Act contemplates two procedures, one for confiscation of goods forming the subject-matter of the offence by the authorized officer under Sub-section (2-A) of Section 44 of the Act, and the other for trial of the person accused of the offence so committed under Section 20 or 29 of the Act. The learned Judges held that the Act provides for a special machinery for confiscation of illicitly felled timber or forest produce by the authorized officer under Sub-section (2-A) of Section 44 enacted in the general public interest to suppress the mischief of ruthless exploitation of Government forests by illicit felling and removal of teak and other valuable forest produce. They further held that merely because there was an acquittal of the accused in the trial before the Magistrate due to paucity of evidence or otherwise did not necessarily entail in nullifying the order of confiscation of the seized timber or forest produce by the authorized officer under b-section (2-A) of Section 44 of the Act based on his satisfaction that a forest offence had been committed in respect thereof. We affirm the view expressed by Jeewan Reddy, J. in P. K. Mohd. Case (1978) 1 APLJ 391 and by Kondaiah, C. J. and Punnayya, J. in Mohd. Yaseen case (1980) 1 ALT 8.

Ultimately, in Shaik Ghani vs The State Of A.P. ( 2007 CriLJ 246); Bench: A G Reddy, G Yethirajulu. In this case, it was held: . ‘Accordingly, we hold that the view expressed by this Court in S. Kareemullah (supra) is not a good law and it was rendered without noticing the statutory provisions added at Act 35 of 1995 and the same is per incuriam. We, further hold that the view expressed by this Court in M. Basha (supra) is in confirmity with the law declared by this Court and the Supreme Court that the criminal courts will not have jurisdiction to release the vehicle for interim custody when the matter is seized by the confiscating authority.’

Magistrate is empowered to pass orders under section 451 of Cr.P.C:
‘ Jitendra Palnitker vs State Of Andhra Pradesh; 1995 (3) ALD 80, 1995 (2) APLJ 282, 1996 CriLJ 105, It was held that ‘ any inconsistent provision is found in the Andhra Pradesh Excise Act, contradicting the provisions of the Andhra Pradesh Prohibition Act, 1995, the provisions contained in Andhra Pradesh Prohibition Act, 1995 will prevail. For that reason also the Excise Officer or the Collector will have jurisdiction to pass an order of confiscation if the accused is unknown, and if the charge sheet is filed against the accused, only the Magistrate can pass the order of confiscation of articles, vehicles, etc., involved in the Andhra Pradesh Prohibition Act, 1995.’ And further held that the Magistrate has jurisdiction to pass an order of release of the vehicle in favour of the petitioner by way of interim custody.’ It is important to note that this is single judge ruling.

‘The Hon’ble High Court of AP, in CRIMINAL REVISION CASE No.132 of 2011, It was observed that Apparently, the vehicle was seized in connection with a case registered under Section 8 (b) of A.P. Prohibition Act and when an application was filed under section 457 Cr.P.C., the learned Magistrate passed an order stating that the said Court is not competent to return the said vehicle and accordingly, dismissed the application. And further observed that having regard to the judgments passed by this Court in P.SWARUPA AND OTHERS V. STATE OF ANDHRA PRADESH[[2]], JITENDRA PALNITKER V. STATE OF ANDHRA PRADESH[[3]] and SUNDERBHAI AMBALAL DESAI V. STATE OF GUJARAT[[4]], though Section 46-E of the Andhra Pradesh Excise Act states that there is a bar of jurisdiction to entertain any application pertaining to release of the vehicle, Section 31 of the Andhra Pradesh Prohibition Act, 1995 has an overriding effect over the A.P. Excise Act. In the light of the said provision of law, it shall be held that the Magistrate is empowered to pass orders under Section 451 Cr.P.C. and release the vehicle by way of interim custody.’ It is here pertinent to note that despite in this case, it was held that the Magistrate is empowered to pass orders under section 451 of Cr.P.C, the ruling the Hon’ble Division Bench in Shaik Ghani vs The State Of A.P. ( 2007 CriLJ 246) was not observed.

In CRIMINAL REVISION CASE No:168 OF 2011, the Hon’ble High Court of A.P, observed that as to the vehicle in question is involved in Crime No.116 of 2010 of Chinthakani P.S, Khammam District, registered for the offence punishable under Section 34 (e) of the A.P. Excise Act., It was held that ‘ in view of the fact that the petitioner is the owner and is eking out her livelihood from out of the income derived from the vehicle in question, this Court is of the view that the vehicle in question can be ordered to be released in favour of the petitioner by imposing certain conditions.’ In this case also, the ruling in Shaik Ghani vs The State Of A.P. ( 2007 CriLJ 246) was not observed.

In this case reported in (2007-Crl.L.J-3008), the Hon’ble Court held that ‘Para 7. From the above noted judicial pronouncements one can gather that in case of seizure of vehicle involved in a forest offence by forest official the Criminal Court would have no jurisdiction to release the vehicle in exercise of power u/S. 457, Cr. P.C. Similarly when the vehicle involved in forest offence is seized by the police authorities and the vehicle and the forest produce are handed over to the forest authorities for initiating confiscation proceeding then also the criminal Court would have no power u/S. 457, Cr. P.C. Such view is logical as otherwise this may lead to conflict of decision of the Magistrate and the Authorized Officer. Only when the vehicle involving in a forest offence is seized by the police authorities and is produced before the Magistrate and no confiscation proceeding is pending then and then only the Magistrate would have jurisdiction to pass any order in exercise of power u/S. 457, Cr. P.C.

Conclusion:
Mulling over all these judicial pronouncements, it is very important to keep in mind that only when the vehicle involving in an excise offence or forest offence etc., is seized by the police authorities and is produced before the Magistrate and no confiscation proceeding is pending then and then only the Magistrate would have jurisdiction to pass any order in exercise of power u/S. 457, Cr. P.C. However, It must be remembered that magistrate has no jurisdiction to pass any property order in Forest cases and Excise cases as discussed above.

*****************
# Shaik Ghani vs The State Of A.P. ( 2007 CriLJ 246)
# 1996(1) ALT Crl.130
# 1995(3) ALD 80
# (2002) 10 SCC 283




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