y ^tS^ Slngte Bench IN THE HIGH COURT OF JUDICATURE OF CHi£ATTISGARH AT BILASPUR Cr.M.P. No. .l3.'ri.l..../20ll Nishant Dubey S/o Shri Radheshyam. Dubey, aged about 26 years, R/o Hiralal Ward MGSigeU, Tahal MusgeU, District Bllaspur (C.G.) VERSUS Petitioner: ^.^•f'^y^- Jft-^'^'-!:f?^^:- ^se(68dCT^\.o.S.'..v.^-- RESPONDENTS 1) State of Chhattisgarh %f8U^i i Dis&tot Ma^s&ate, District Bilaspur (C.G.) 2) Jitendra Kumar Rawat @ Bablu S/o Shri Harishpal Rawat, aged about 33 years, R/o Daupara, Near Chureh, Hfaald Ward MuageU, District Bilaspur (C.G.) 3) Bablu @ Kishore Bairagi, aged about 28 years, S/o Kanhaiya Das Bairagi, R/9 Old Bus Stand, Near Jai Stefflbh, MungeU, Dlstrict Bllaspur (C.G.) APPLICATION UNDER SECTION 482 OF CODE OF CRIMINAL PROCEDURE -^ '^ r HIGH COURT OF CHHATTISGARH : BILASPUR S.B. : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. Cr.M.P.No.641/2011 PETITIONER RESPONDENTS Versus Nishant Dubey State of Chhattisgarh and Ors. (Petition u/S 482 ofthe Cr.P.Cl Appearance: Shri P. Tiwary, counsel for the petitioner. Shri Rakesh Jha, Dy. Govt. Advocate for the State, on advance copy. ORAL- ORDER (Passedon 30.9.2011) 1. The petitioner has filed this petition aggrieved by order dated 25th August, 2011 passed in Cr. Rev. No.24/2011, by which order dated 26.7.2011 passed by the Magistrate, rejecting petitioner's appUcation for interim custody of vehicle, has been affirmed. 2. Leamed counsel for fhe petitioner submitted that the vehicle has been seized for alleged commission of offence under Section 3/7 of the Essential Commodities Act, 1955 (hereinafter ..// -2- referred to as "the E.C. Act") on 10.7.2011. The petitioner is a registered owner of the vehicle. 3. Leamed counsel for the petitioner submits that taking into consideration the nature of aUegation involved in the case and the fact that the vehicle has remained in custody for more than 2 months, the Court below ought to have allowed the petitioner's application for uiterun custody. He subiaits that if the vehicle is not given to the petitioner, who is the registered owner, the same would be wasted and ji.inked. He further submits that the Courts below have rejected the petitioner's application in view of the provision contained in Section 3/7 of the E.C. Act, ignormg that the jurisdiction of the Magistrate is not taken away until conflscation proceedings are initiated by issuance of show-cause notice, as contemplated under Section GBoftheE.C.Act. 4. On the other hand, leamed counsel for the State submits that the Courts below have rejected the petitioner's appUcation considering that the vehicle was found using domestic L.P.G. He also submits that in view of the schenie of E.C. Act, if the vehicle has been seized in connection with commission of offence under Section 3/7 of the E.C. Act, the Magistrate will not have jurisdiction to pass any order with regard to custody/interim custody of the vehicle, in view of the bar created under Section 6- E of the E.C. Act. 1 ll -:Trt—l -3 - 5. A perusal of Section 6 -E of the E.C. Act shows that the bar of jurisdiction is attracted where confiscation proceedings are pending. The confiscating authority constituted under the Act, is authorized and empowered to initiate confiscation proceedings in the manner prescribed under the provision of E.C. Act. Section 6-B of the E.C. Act provides for issuance of show-cause notice. This Court in the case of Mahavir Prasad Agrawal Vs. State of Chhattisgarh and Ors., decided on 12.11.2010 m Cr.M.P. No.472/10, while examining the aforesaid provision and the scheme of the Act, has held: "5. A plain reading of the aforesaid provision would mean that a bar ofjurisdiction would be attracted in case of receipt of intimation of fhe nature specified in the provision under Section 52 (4) which provides that no order of confiscating any property shall be made under sub Section (3) unless authorised officer sends an intimation in form prescribed about initiation of proceedings for confiscation of the property to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. Therefore, the law requires that fhe intimation should be in respect of initiation of proceedings for confiscation of the property. Any other kind of intimation including intimation of commission of forest offence forwarded to the Magistrate would not be a substitute of the requirements of intimation regarding initiation of confiscation proceedings. From. the statutory scheme engrafted under Section 52 of the Act, confiscation proceedings can be initiated upon issuance of a notice in writing to -4- the person from whom the property is seized and to any other person who may appear to have some interest in such property. Therefore, unless proceedings of confiscation are initiated and an intimation regarding initiation of such proceedings are received by Che concerned Magistrate, his jurisdiction is not ousted as in the absence of receipt of any such mtimation, the bar under Section 52-C is not attracted." 6. Therefore, iinless a show-cause notice is issued as envisaged iinder Section 6 B of the E.C. Act, it cannot be said that the confiscating proceedings are pending. Merely because vehicle has been seized for alleged commission of offence under Section 3/7 of the Act, general provision contained in Section 451 of the Cr.P.C. empowering the Magistrate to grant interim custody of fhe vehicle are not circumscribed. A perusal of the order passed by the Courts below show that the Courts below have not enquired as to whether the confiscating authority constituted under the E.C. Act has issued show-cause notice as envisaged under Section 6 B of fhe Act. On assumption, which has no factual basis, the application of the petitioner for grant of interim custody has been rejected. Therefore, the orders passed by the learned Magistrate as also by the revisional Court cannot be sustained in law. 7. Accordingly, the petition is allowed. The impugned orders dated 26.7.2011 passed by the Magistrate and order dated 25th August, 2011 passed in the revision are set aside. -5- 8. The matter is remanded to the Magistrate to verify as to whether the confiscating authority has issued show-cause notice initiating confiscation proceedings or not, as envisaged iinder Section 6 -B of the E.C. Act. In case, no such proceedings have been initiated by issuance of show-cause notice, the Magistrate shall decide the application for grant of interim custody of fhe vehicle in accordance with law, as early as possible. 9. The petition is accordingly allowed to the extent indicated above. gd/- Manindra Mohan Shrivastava Judge Praveen ^a^