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.' 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.
(3.) 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.;