PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this criminal misc. petition praying for the following relief :- "It is, therefore most humbly and respectfully prayed that this misc. petition may kindly be allowed and impugned order dated 13.12.2018 passed by learned Addl. Chief Judicial Magistrate, Ratangarh District Churu may kindly be quashed and set aside and the Duster Car Chassis No. MEEHSRAWEJ6023084 Engine No.41G84170775 may kindly be ordered tobe release to the petitioner on superdginama."?
(2.) Brief facts of the case are that an FIR No. 350/2018 was lodged at Police Station Ratangarh for the offence under Section 19/55 of the Rajasthan Excise Act, 1950 in which the Duster car in question was seized.
(3.) Learned counsel for the petitioner submits that it is an admitted position that the car in question was not carrying the excise articles. Learned counsel for the petitioner submits that Section 69(1)(e) requires the vehicle to be released under Section 457 Cr.P.C. in case it was not carrying the excise articles. Learned counsel for the petitioner has relied upon the judgment of this Court in the case of Bhanwarlal vs. State of Rajasthan reported in 2011(2) Cr.L.R. (Raj.) 1035, which reads as follows :- "A police team of Police Station Karoi, District Bhilwara recovered certain excise articles from a Maruti Omni Van bearing No.RJ-06/U-0735, vehicle aforesaid was driven by Shri Rajendra Kumar. 2. A case as per provisions of Sections 14/54 and 19/54 of the Excise Act was registered. During the course of investigation accused Rajendra Kumar informed that the excise articles were transferred to Maruti Omni Van from a Jeep Mahindra DI No.RJ-06/UA- 1320. On basis of the information given the jeep aforesaid was seized by the investigating agency. 3. On completion of entire investigation a police report was filed before the competent court and two persons viz. Rajendra Kumar and Chanda Bai were charge sheeted. The present petitioner, who is owner of Jeep No.RJ-06/UA-1320 is cited in the case aforesaid as witness by the prosecution. The petitioner being owner of the vehicle submitted an application as per provisions of Section 457 Cr.P.C. to avail possession of the jeep on 'supurdginama'. Learned trial court rejected the application vide order dated 16.3.2011 being lacking jurisdiction in light of the provisions of Section 69(2-B) of the Rajasthan Excise Act, 1950 (hereinafter referred to as the "Act of 1950"?). A revision petition giving challenge to the order aforesaid also came to be rejected on 14.6.2011, hence this misc. petition is preferred. 4. The submission of counsel for the petitioner is that the vehicle owned by the petitioner was not at all carrying any excisable article, thus, the provisions of Section 69(2-B) of the Act of 1950 are not applicable. 5. Per contra, as per learned Public Prosecutor accused Rajendra gave an information as per provisions of Section 27 of the Indian Evidence Act about use of vehicle concerned for carrying excisable article, therefore, the entire authority to release that lies within the jurisdiction of the District Excise Officer. 6. Heard counsel for the petitioner and also the Public Prosecutor. 7. For adjudication of the issue involved it shall be appropriate to quote the provisions of Section 69(2-B) of the Act of 1950 and i.e. "whenever any excisable article is seized under Sub-section (1), the District Excise Officer shall have, and, notwithstanding anything contained in any other law for the time being in force, any Court, Tribunal or other authority shall not have, jurisdiction to make order with regard to the possession, delivery, disposal and release of such property"?. 8. From perusal of the provision aforesaid it is apparent that the District Excise Officer is having exclusive jurisdiction to make an order with regard to possession, delivery, disposal and release of a property i.e. seized with excisable article. In the instant matter the Jeep No.RJ-06/UA-1320 was not at all seized with or excisable article. As such, the provisions of Section 69(2-B) of the Act of 1950 are not required to be brought into picture in the instant matter. Learned trial court, thus, erred while not examining merits of the application under Section 457 Cr.P.C. while placing reliance upon the provision aforesaid. 9. Accordingly, this misc. petition deserves acceptance and the same is allowed. The order dated 16.3.2011 passed by learned Additional Chief Judicial Magistrate, Gangapur District Bhilwara in Case No.11/2011 and also the order dated 14.6.2011 passed by learned Additional Sessions Judge No.1, Bhilwara in Criminal Revision Petition No.2/2011 are declared illegal and, thus, are quashed. The Additional Chief Judicial Magistrate, Gangapur is directed to consider and decide the application preferred by the petitioner as per provisions of Section 457 Cr.P.C. afresh on merits."? ;