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The Supdt. and Remembrancer of Legal Affairs. West Bengal on Behalf of the State of West Bengal Vs. Mahendra Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1972CriLJ544
AppellantThe Supdt. and Remembrancer of Legal Affairs. West Bengal on Behalf of the State of West Bengal
RespondentMahendra Singh
Cases ReferredThe Quinn v. Leatham
Excerpt:
- .....prosecutor. c. d. d. west bengal, substantially based on an interpretation of section 67 of the bengal excise act 1909 to the effect that the collector of customs has got a perpetual right to keep in detention any vehicle seized for any length of time. the learned magistrate held that on a proper construction of sections 63 to 67 of the bengal excise act. 1909 and also in view of the fact that the statutory period of limitation of section 92 of the bengal act v of 1909 had expired and the accused was discharged from his bail-bonds, the chapter of investigation was closed. he ultimately held that accordingly this case was quite distinct from the unreported decision of the calcutta high court referred to above. the learned magistrate therefore ordered that the lorry no. wbk 1554 was to.....
Judgment:

N.C. Talukdar, J.

1. This Rule is at the instance of the Superintendent and Remembrancer of Legal Affairs, West Bengal on behalf of the State of West Bengal for setting aside two orders dated the 12th April. 1971 passed by Shri D. K. Mahavalam. Sub-Divisional Magistrate, Barrackpore and the 28th April. 1971 passed by Shri K. P. Das. Magistrate. 1st class. Barrackpore, in Baranagar P. S. Excise Case No. 481 of 9-8-70. (The State v. Pal Singh) directing the return of the lorry No. WBK 1554 to the opposite party.

2. The facts leading on to the Rule are short and simple and can be. put in a brief compass. The dispute centres round the disposal of a lorry No. WBK 1554. seized by the police near the Baranagar P. S. on 6-8-70 while proceeding towards Calcutta. The lorry was detained in the police-station and on a search made on 9-8-70 gania worth Rs. 1.20.000/- was recovered from the said lorry along with some other articles namely ginger and tea chests. The lorry is alleged to have been coming from Bihar. The police made a G. D. Entry No. 481 in the Baranagar Police Station on the same date, namely on the 9th August, 1970. and investigation proceeded. During the investigation the driver of the lorry was arrested and was re- leased on bail by the learned Sub-Divisional Magistrate. Barrackpore. The opposite party, Mohendra Singh, who claimed to be the registered owner of the Lorry surrendered before the learned Sub-Divisional Magistrate on the 10th October. 1970 and was released on bail. On the 27th August, 1970 an application was filed on his behalf praying for the custody of the lorry No. WBK 1554 and the learned Magistrate sent the application to the police for enquiry and report. On a renewal of the prayer made on 23-11-70 it was rejected. The prayer was renewed again on 5-2-1971. The learned Magistrate rejected the prayer again on the ground that the prosecution report was expected at an early date. On 12-4-71 thereafter the opposite Party. Mohendra Singh, filed another application for the return of the lorry and Shri D. K. Mahavalam, Sub-Divisional Magistrate. Barrackpore. by his order of the same date allowed the prayer and directed the return of the lorry to the said Mohendra Singh on his executing a bond of Rupees 10.000/- (with a registered surety) to be produced on call. On 19-4-71 the case was put up on petition and a prayer was made for discharging the accused on the grounds mentioned therein. The application was fixed by the learned Magistrate for hearing on the date fixed namely. on the 26-4 71. It was brought to the notice of the court that the previous order passed by the learned Magistrate was not carried out and the lorry in question was not returned. The learned Magistrate accordingly directed the C. D. D. Excise. Calcutta to comply with the order dated the 12th April, 1971 forthwith. The matter thereafter came UP for hearing on the date fixed, viz. on 26-4-71 when both the parties were present. The prayer was renewed by the accused for their discharge and also the return of the lorry as already directed. The prosecution and the defence lawyers were heard and 28-4-71 was fixed by the learned Magistrate for orders. By a later order passed on the same date the learned Magistrate held that the statutory period of six months was over and in view of the provisions of Section 92 of the Bengal Act V of 1909 no Magistrate could take cognizance of any charge made against any person under the Act unless the prosecution was instituted within six months after the date of the act complained of. It was further stated in the order that 'the prosecution has no objection in discharging the bail-bond of the accused.'

3. The learned Magistrate thereafter discharged the accused persons from their bail-bonds and directed that the order for returning the lorry would be issued on the date fixed, viz.. 28-4-71. On 28-4-71 both the parties were heard. The Prosecutor. C. D. D., West Bengal, opposed the earlier order passed for returning the lorry and based his objection on an unreported decision of this Court dated the 20th February. 1970 in Criminal Revn. Case No. 1158 of 1969 (Cal) bv R. N. Dutt and Sarma Sarkar JJ. The learned Magistrate distinguished the facts referred to therein as being distinct from those in the present case and overruled the objection of the Prosecutor. C. D. D. West Bengal, substantially based on an interpretation of Section 67 of the Bengal Excise Act 1909 to the effect that the Collector of Customs has got a perpetual right to keep in detention any vehicle seized for any length of time. The learned Magistrate held that on a proper construction of Sections 63 to 67 of the Bengal Excise Act. 1909 and also in view of the fact that the statutory period of limitation of Section 92 of the Bengal Act V of 1909 had expired and the accused was discharged from his bail-bonds, the chapter of investigation was closed. He ultimately held that accordingly this case was Quite distinct from the unreported decision of the Calcutta High Court referred to above. The learned Magistrate therefore ordered that the lorry No. WBK 1554 was to be returned to the registered owner as previously directed by the learned Sub-Divisional Magistrate. Barrackpore on 12-4-71. After the said order was passed, a further application was filed on behalf of the prosecution praying for staying the execution of the order on grounds as mentioned therein and the learned Magistrate by a subsequent order passed on the same date staved the execution 'until further order'. The order dated the 12th April. 1971 passed by the learned Sub-Divisional Magistrate. Barrackpore directing the return of the lorry to the opposite party. Mohendra Singh and the further order dated the 28th April. 1971 passed by Shri K. P. Das. Magistrate 1st Class. Barrackpore in agreement therewith, directing the return of the lorry to the said registered owner, have been impugned and form the subject-matter of the present Rule.

4. Mr. Sudhir Gopal Poddar Advocate appearing in support of the Rule on behalf of the Superintendent and Remembrancer of Legal Affairs. West Bengal, made a threefold submission. Mr. Poddar contended in the first instance that the order dated the 12th April. 1971 Passed by the learned Sub-Divisional Magistrate. Barrackpore. directing the return of the lorry to the opposite party was clearly bad and improper as it was passed behind the back of the prosecution on an intermediate date not fixed for hearing of the matter. Mr. Poddar next contended that the learned Magistrate misinterpreted and misunderstood the provisions of Section 92 of the Bengal Act V of 1909 in holding that as soon as the period of six months expired there will be a statutory limitation, barring the proceedings. The third and last contention of Mr. Poddar is that in view of the provisions of Sections 63 and 67 of the Bengal Excise Act 1909. it is the Collector of Customs, an officer within the meaning of Section 67(a) of the Bengal Excise Act. 1909. who has the right to keep in detention any vehicle seized when he has reasons to believe that the same is liable to confiscation under the Act or any other law for the time being in force relating to excise reference. Mr. Chittaranjan Das. Advocate (with Mr. Anath Bandhu Pal. Advocate) appearing on behalf of the opposite-party. Mohendra Singh, joined issue. He contended that the first order for re-turning the lorry might have been passed ex parte on 12-4-71 but ultimately the order for delivery was passed in presence of both the parties after giving an opportunity to both the parties of being heard and therefore the objection taken in this behalf by Mr. Poddar now. is more technical than real, causing no prejudice to anybody. Mr. Das also submitted that on a proper construction of Section 92 of the Bengal Act V of 1909 it is abundantly clear that the said provision lavs down a Period of limitation which cannot be exceeded and the learned Magistrate rightly discharged the accused persons from their bail-bonds to which the prosecution had no objection. As to the last contention. Mr. Das's short reply is that Mr. Poddar's contention would result in an ouster of the jurisdiction of the Court and his interpretation is clearly de hors the statute. The provisions of Sections 63 and 67 according to Mr. Das have been misunderstood and misinterpreted as they relate to an earlier stage and not to the stage when the case is referred to the Court, which when it is in seisin of the matter, is authorised to pass any order enjoined by Law. In any event Mr. Das submitted that the objection taken in this behalf by the petitioner is unwarranted and untenable because it clearly appears from the facts of the present case that the accused persons having been discharged from their bailbonds there is no case before the Court, and the attempt on the part of the prosecution to prevent the delivery of a motor vehicle, to its registered owner is merely flogging a dead horse and not expedient in the interests of justice.

5. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on record, we agree with the first submission of Mr. Poddar that the order passed by the learned Sub-divisional Magistrate. Barrackpore on 12-4-71. having been passed on an intermediate date not fixed for the hearing of the matter and without hearing the prosecution is not a proper one. It is Quite true that in such matters parties who are legally interested or are necessary ones have a right to be heard and a denial of this opportunity is against the principles of natural justice. but it must be held ultimately that it does not help the prosecution in the long run in view tit the subsequent and ultimate order passed by the learned Magistrate for the delivery of the vehicle, after hearing both the parties at length and giving reasons for the same. In this context a reference may also be made to the order dated 19-4-71 which also suffers from the same defect but in view of the ultimate order passed on 29-4-71. this has not also prejudiced the prosecution in any way.

6. We now come to the second contention raised by Mr. Poddar and we must hold that there is a considerable force behind this submission. On a plain construction of the provisions of Section 92 it is difficult to agree with the interpretation given by Mr. Das. Some meaning and effect must be given to the words used by the legislature, namely. that 'except with the previous sanction of the State Government, no Magistrate shall take cognizance of any charge ....made against any other person under this Act. unless the suit or prosecution is instituted within six months after the date of the act complained of'. The golden Rule of construction of statutes, as Viscount Simon. L. C, observed in the case of Nokes v. Doncaster Amalgamated Collieries reported in (1940) AC 1014 at page 1022 is that 'the words of a statute must prima facie be given their ordinary meaning.'

The bar therefore to the institution of the proceedings without a, previous sanction as . enjoined under Section 92 of Bengal Act V of 1909 relates only to a prosecution instituted after six months, but. if and when, the same is instituted within six months, no such sanction would be necessary. The emphasis, therefore, put by the legislature, is on a sanction on the expiry of six months and the said provisions do not constitute any bar simpliciter as Mr. Das contended. Therefore, the ratio of the learned Magistrate's order in this context are not correct. The State Government can conform to the requirements of the statute on expiry of six months by getting a sanction, before the Court takes cognizance. It is. therefore, premature at this stage to hold that there has been a statutory limitation and that Section 92 of the Bengal Act V of 1909 lends assurance to the same. We accordingly uphold the second branch of Mr. Poddar's submissions. This however, by itself, does not again affect ultimately the order impugn-ed.

7. We therefore turn to the third and last submission made by Mr. Poddar which is based on an interpretation of Sections. 63 and 67 of the Bengal Act V of 1909 relating to the powers of the Collector of Customs to detain and hold on to a vehicle seized in spite of the order passed in this behalf by the Magistrate. The present Rule would ultimately succeed or fail on a determination of this point. We shall now refer to the provisions of Sections 63 and 67 of the Bengal Excise Act. 1909.

Section 63 : '(1) Whenever an offence has been committed which is punishable under this Act, the intoxicant materials, still, utensil, implement and apparatus in respect of or by means of which such offence has been committed shall be liable to confiscation.

(2) Any intoxicant lawfully imported, transported, manufactured, had in possession or sold alone with, or in addition to. any intoxicant which is liable to confiscation under Sub-section (1).

and the receptacles, packages and coverings in which any such intoxicant as first aforesaid, or any such materials, still, utensil, implement or apparatus as aforesaid is found.

and the other contents, if any. of such receptacles or packages.

and the animals, carts, vessels, rafts or other conveyances used in carrying the same shall likewise be liable to confiscation:

Provided that no animal cart, vessel. raft, or other conveyance as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence.

Section 67 : 'Any of the following persons, namely. -

(a) any officer of the Excise and Salt. Police. Customs or Land Revenue Department, or

(b) any person empowered by the State Government in this behalf by notification, may subject to any restrictions prescribed by the State Government by rule made under Section 85. -

(i) arrest without warrant any person found committing an offence punishable under Section 46. Section 48. Section 52 or Section 53; and

(ii) seized and detain any article which he has reason to believe to be liable to confiscation under this Act or any other law for the time being in force relating to the Excise revenue : and

(iii) detain and search any person upon whom, and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reason-able cause to suspect any such article to be.

It would appear therefore. that Section 63 does not lay down that all articles seized, as referred to therein, must be confiscated as was sought to be urged at one stage by Mr. Poddar. The said argument overlooks the proviso to Section 63, similar to that in Section 7(1)(b) of the Essential Commodities Act. 1955. The proviso lavs down that no animal, cart, vessel, etc. shall be liable to confiscation unless the owner is proved to have been implicated in the commission of the offence. Therefore, the overall submission of Mr. Poddar that all articles so seized must be confiscated does not hold good. The interpretation Mr. Poddar seeks to put on Section 67 would also circumscribe the intention of the legislature as incorporated therein. Under Section 67(a)(ii) the Collector of Customs may subject to any restriction prescribed by any rule made under Section 85 of the Act seize and detain any article which he has reason to believe to be liable to confiscation under this Act, The emphasis, therefore, is on the words 'reason to believe to be liable to confiscation' and such detention is clearly at the stage of investigation. Section 67 obviously does not mean that for all times to come, even when the Court is in seisin of the matter and determining the point at issue, an article seized under Section 63 of the Act can be detained even in violation of an order passed by the Court in this behalf. Such an interpretation, as sought to be given by Mr. Poddar to the provisions of Sections 63 and 67 of the Bengal Excise Act 1909 would amount to an ouster of the jurisdiction of the Court. The facts in the present case are short and simple. It will appear in the first place that the investigation proceeded for more than six months and the accused were discharged from their bail-bonds on 26 4-71. It is again pertinent to note, as contained in the order itself, that 'the prosecution has no objection in discharging the bailbond of the accused'. In a case where the accused have been discharged from their bail-bonds, there is no point in keeping back the vehicle in Question from the registered owner who has got some rights as also liabilities under the Motor Vehicles Act. It is sometimes overlooked that a motor vehicle is not a mere chattel-real that can be dealt with in any manner whatsoever de hors the material provisions of the special statute enacted in this behalf. Mr. Poddar has relied on the principles laid down in the unreported decision dated the 20th February 1970 by R. N. Dutt and Sarma Sarkar JJ. in Criminal Revn. Case No. 1158 of 1969 (Cal). We find, however, that the facts of the said case are Quite distinct from those of the present proceedings, viz.. as to whether a report was made to the court and also as regards the stage of investigation. It has been very rightly held in the said unreported decision in view of the facts of the said case that the excise officer who made the seizure under Section 63 of the Excise Act had reported the seizure to the Collector as enjoined under Section 76 of the Act and the investigation in that case was pending. The stage in this case is quite different as the accused have been discharged from their bail-bonds. The other point of difference is that their Lordships found that in that case the seizure was not reported to the Magistrate and, therefore, he was not in a position to make such orders as he thought fit in respect of the disposal of the property. Mr. Das Placed before us a certified copy of a report by the Baranagar Police to the learned Sub-Divisional Magistrate, Barrackpore on 10-8-70 referring to the seizure of the lorry. The facts of the present case, therefore, are clearly distinct and although Section 517 Criminal Procedure Code may not in terms apply, the provisions of Section 523 of the Code are wide enough to cover the case and it is material to note that the words used therein are that the Magistrate can 'make such order as he thinks fit respecting the disposal of such property'. When there was a report to the court by the police with regard to the article seized and the learned Magistrate passed an order regarding the disposal thereof in the exercise of his discretion judicially this Court sitting in revision should not interfere with the same. The principles laid down in the abovementioned unreported decision of the Division Bench of ultimate analysis do not apply to the present case. Each case is only an authority on what it actually decides and as was observed by the Earl of Halsbury, L. C. in the case of The Quinn v. Leatham reported in 1901 AC 495 at page 506 that 'a case is only authority on what it actually decides and it cannot be quoted for a proposition that would seem to follow logically from it'. We respectfully agree with the observations of the Lord Chancellor and hold that the facts of the two cases clearly differ. The third and last submission of Mr. Poddar accordingly fails.

8. One other point raised by Mr. Poddar in this behalf abides our consideration viz.. whether a bond of Rupees 10.000/- as directed to be furnished, is sufficient in the facts and circumstances of the case. Mr. Das appearing on behalf of the opposite party, submitted that this is an old Tata-Marcedes Vehicle, much depreciated in value and. therefore, the amount of the bond fixed by the learned Sub-Divisional Magistrate is Quite sufficient. Mr. Poddar however submitted, that this is not so and in view of the gravity of the offence, it must be ensured that the lorry is available on call. We agree with the submission of Mr. Poddar and we hold that it is expedient in the interests of justice that the amount of the bond should be reasonably enhanced.

9. In the result, we uphold the order dated the 28th April. 1971. passed by Sri K. P. Das. Magistrate. 1st Class. Barrackpore. in Baranagore P. S. Excise Case No. 481 of 9-8-70, making over the lorry to the opposite party, with the modification that the said opposite party. Mahendra Singh. shall execute in the court below a bond of Rs. 30.000/- with two local sureties of Rs. 15.000/- each, undertaking to produce the lorry on call. The Rule is disposed of accordingly.

10. The records are to go down as early as possible.

Sengupta, J.

11. I agree.


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