LEGAL REMEMBRANCER Vs. PARBATI NASKAR

JUDGEMENT

(1.) On May 30, 1969, a sub -Inspector of Excise seized car No. WBG 5585 at the crossing of Diamond Harbour Road and Panchanantala Lane within the Behala P.S. at 12 -15 a.m. which contained 279 liters of illicitly distilled liquor. The car and the liquor were then produced before the Special Superintendent of Excise, Central Detective Department, who was a 'Collector' within the meaning of the Excise Act, and the said Collector made an order that the car and the liquor be kept in Excise custody pending investigation of the alleged offence under Sec. 46(a) of the Act by the Excise Department. On June 25, 1969, one Ansar Sardar was arrested in connection with this case and, as he failed to furnishing surety, under orders of the Collector he was produced before the Sub -Divisional Magistrate, Alipore, who directed his custody in jail on his failure to furnish bail bond of Rs. 5,000 with two sureties of Rs. 2,500 each. On July 11, 1969, one Parbati Naskar, said to be the other accused in the case, surrendered before the Magistrate who released him on bail. Subsequently, he filed an application before the said Magistrate for return of the seized car No. WBG 5585 to him pending investigation by the Excise men. Objection was raised on behalf of the Excise Department. But the learned Magistrate directed that the car should be returned to Parbati Naskar on certain conditions. We find that the car has, in pursuance of this order, been returned to Parbati Naskar. But, subsequently the State has obtained this Rule against this order of the learned Magistrate directing return of the car to Parbati Naskar.

(2.) Mr. Poddar, who appears for the State, argues that the Sub -divisional Magistrate, Alipore, had no jurisdiction to make an order for return of the car in question. He contends that the Excise officer seized the car under Sec. 67 of the Excise Act and under Sec. 76 of the Act he produced the seized car to the 'Collector' within the meaning of the Excise Act and the Collector made an order about instant disposal of the car, namely, made an order that the car should be kept in the Excise custody during pendency of the investigation. The Excise men, it is submitted, never produced the car to the Sub -divisional Magistrate nor did the Excise men ever seek order from the said Magistrate about the disposal of the car pending their investigation, and so, the learned Magistrate had no jurisdiction to make an order about the disposal of the car at that stage.

(3.) Mrs. Nag, who appears for Parbati Naskar in this Rule, contends that the learned Magistrate had jurisdiction to make an order for return of the car under Sec. 523 of the Code of Criminal Procedure. Mrs. Nag refers to the Division Bench decision of this Court in Ajoy Raj Singh v/s. Baj Bahadur Singh and Ors. : A.I.R. 1967 Cal. 421 and contends that even when a seizure is made during investigation Sec. 523 of the Code is attracted so as to enable the Magistrate to make an order about disposal of the seized property pending investigation. There in that case we considered the scope of Ss. 516A, 517 and 523 of the Code. We said that under Sec. 516A the Magistrate has jurisdiction to direct disposal of the seized property during any enquiry or trial and under Sec. 517 of the Code the Magistrate has jurisdiction to make an order about the disposal of the seized property after the trial is over. We further said that in all other cases the Magistrate had jurisdiction to make an order for disposal. of the seized property under Sec. 523 of the Code and, in particular, we held that the Magistrate had such jurisdiction in respect of properties seized during investigation by the Police under Sec. 165 of the Code. True, the law is as we have explained in that case. But, then we have to see if the facts of the present case do really bring it under the scope and ambit of Sec. 523 of the Code. The Magistrate can have jurisdiction to make an order under Sec. 523 of the Code only when he is in season of the seized article. True, it is not necessary that the article should be physically produced before the Magistrate. Sec. 523 of the Code does not, in fact, even speak about production of the seized property before a Magistrate. But, Sec. 523 of the Code states that the seizure shall be reported to a Magistrate who shall make such order as he thinks fit in respect of the disposal of such property.