SK. KAMAL Vs. THE STATE OF WEST BENGAL

JUDGEMENT

(1.) This application has been filed by one Sk. Kamal to challenge an order dated 22.7.2009 passed by the learned Chief Judicial Magistrate, Paschim Medinipur whereby prayer of the petitioner for release of the vehicle was rejected on the ground that Sec. 65(1) of the Bengal Excise Act does not give him jurisdiction to make an order of release of the vehicle. Proviso to subsection (2) of Sec. 63 reads as follows:-

(2.) Learned Magistrate referred to Sec. 65 which deals with power to compound offences and to release property liable to confiscation. Clause (b) of sub-section (1) of Sec. 65 reads as follows:-

(3.) It is submitted by the learned Advocate for the petitioner that as re petitioner who is the owner of the vehicle, has not been implicated in the ommission of the offence, there is no legal bar to release the vehicle, forwarding report of the I.O. reveals that two persons namely, Dipu Singh & Ik. Saju were arrested and article was seized which was being carried in the vehicle. Till now even after six months from the date of arrest of the accused person, there is no report that the petitioner who is the owner of the vehicle, is involved in the commission of the offence, that is to say, till now the petitioner as not been implicated in the case. My attention has been drawn to a decision of this Court in the case of Deb Kumar Adak Vs. State of West Bengal reported H992 C Cr LR (Cal) 118 . This decision was referred to by the learned Magistrate. In the decision it was observed that the Magistrate cannot pass any order as to release of the vehicle used in committing the offence till the complaint is lodged with him under the Bengal Excise Act. But at para 5 of the judgment High Court's jurisdiction under Sec. 482 of Cr. P.C. is held to have not been ousted. In the said decision also no confiscation proceeding under Sec. 63 in respect of the seized vehicle was pending and it was held that since the vehicle remained in the custody of the Excise Authorities till the disposal of the case which may take considerable time, it is likely to deteriorate substantially causing hardship to the petitioner who is the owner of the vehicle. Further a judgment of the Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujarat reported in 2003 C Cr LR (SC) 122 has been cited where it as held that the Magistrate has to pass an appropriate order when vehicle is lying in the police station for a long period of time. In this decision power under Sec. 451 of the Cr. P.C. has been analyzed to hold that the powers under Sec. 451 of Cr. P.C. should be exercised expeditiously and judiciously so that the owner of the article would not suffer because of its remaining unused.