Jurisdiction cannot be assumed where none existed. No one then can say that it is there. Intention of statute is to secure payment of tax.
26. What thus, emerges can be summed up as under :-
(a) Taxation Authority or any officer authorised by state Government in this behalf can seize and detain a motor vehicle on "reason to believe" that there is fault or default in payment of amount of tax Under Section 16(3) of Adhiniyam. Even authorised officer, be it a Police Officer, has to operate under Adhiniyam and not Code.
Applicability of certain provisions of the Code for search or seizure is a matter of manner and procedure and does not render Section 451/457 of the Code operative in such cases.
(b) Application for release of the vehicle when seized and detained, lies to aforesaid authority and such authority is empowered to release on satisfaction that no tax is due in terms of Section 16(4) of the Adhiniyam. The "Object of Tax" is not liable to be frustrated.
(c) Aggrieved person can file an appeal Under Section 20 of the Adhiniyam on deposit of amount in question.
(d) Except Sections 451 and 457 of the Code, no other provision is shown to exist for the purpose. But Section 451 of the Code gets attracted only "when property is produced before any Criminal Court during any inquiry or trial" and is concerned with "proper custody of such property pending conclusion of the inquiry or trial". Section 457 of the Code comes into play when seizure is by a Police Officer who reports to a Magistrate under the Code. It empowers the Magistrate to make an order respecting disposal or delivery "to the person entitled to the possession thereof". On seizure Under Section 16(3), Section 451 is inapplicable till stage of inquiry or trial in a Criminal Court and Section 457 of the Code cannot be invoked unless seizure is by a police officer and is reported under the Code and some one is "entitled". Person in arrear and in error is not prima facie "entitled." These two Sections, thus, do not apply till requisite conditions are shown to be satisfied. At the infant stage, recourse to Criminal Court is impermissible. Hence, only Section 16(4) and Section 20 of Adhiniyam held to be efficacious are applicable. This power cannot be usurped by any Criminal Court.
(e) "Statutory Forums" have to be approached. Resort to Section 451 or 457 of the Code is thus, impermissible. The Criminal Court thus, does not possess jurisdiction to entertain prayer for interim release of the vehicle and grant relief under the Code. Section 19 or Rules do not indicate existence of jurisdiction of Criminal Court in case of action Under Section 16(3) of the Adhiniyam.
27. Despite Section 16(4) and 20 of Adhiniyam, the Non-applicant resorted to Forum under the Code and the Criminal Court held the prayer irrecusable and granted relief of release of the vehicle under umbrella of Brahmanand's case (supra). The non-applicant, thus, shaped the case under the Code on assumption that "jurisdiction was there" on the pattern assumed by the great British explorer, George Mallory. Once he was asked as to why did he want to climb Mount Everest? To that question he had replied "Because it is there". Now we resolve the conflict and conclude that "Criminal Court has no jurisdiction in the light of Section 16(4) and 20 of the Adhiniyam for interim release of motor vehicle seized and detained by the specified authority Under Section 16(3) on Supratnama and/or surety as was done in this case". SEIZURE IS FOR TAX.
Madhya Pradesh High Court
State Of M.P. vs Rakesh Kumar Gupta on 21 April, 1998
Equivalent citations: 1998 (2) MPLJ 249
ORDER
A.R. Tiwari, J.
1. "No Light", said Milton in Paradise Lost, "but rather darkness visible". But Courts, determined to secure harmony and spurn antinomy between law and justice, search "light" in lexicon of law in a surge of an urge to say "no darkness, but only light visible". In such determination, resting on linchpin of epicerastic exercise, Courts bear in mind that "law" has to enchisel "flaw" and ensure "flow" in doctrinal direction. After all, no one can have adroit in recourse to opposite course. This inbred intendment aptly takes us to the issue to be unknotted.
2. The issue is manifest conflict in two decisions of equal vigour.
3. One of us (Hon'ble Shukla, J.), sitting single, found while hearing this criminal revision presented by the State Under Section 397 of the Code of Criminal Procedure (For short the 'Code') against the order dated 24-7-19%, rendered by the Judicial Magistrate First class, Indore (Motor Vehicle Magistrate) in O.A. No. 11471/96, thereby directing release in purported exercise of power Under Section 457 of the Code of passenger Bus No. MP 09-S-1820 plying between Gwalior and Indore and seized and detained by the Taxation Authority (The Transport Inspector) on 18-7-1996 in terms of Section 16(3) of the M.P. Motor Yan Karadhan Adhiniyam, 1991 (For short Adhiniyam') on the fulcrum of non-possession of valid permit, as required Under Section 66 of the Motor Vehicles Act, 1988 (For short 'the Act') and non-payment of tax leviable under the Act, on Supratnama of 9 lakhs, supported by surety of equal value, on specified conditions, discordant sound in two Divisional Bench decisions - One: Brahmanand v. State of M.P., 1994 MPWN1126 decided by Hon'ble Kokje and Shukla, JJ. - holding in M.P. No. 1388/92 on 2-12-1993 that "A Criminal Court of competent jurisdiction would, therefore have jurisdiction to grant temporary custody of the vehicle under the Code of Criminal Procedure" even when seized and detained Under Section 16(3) of the Adhiniyam and two : Durgaprasad v. M.N. Gupta and Ors., FA. No. 116/1971 decided by Hon'ble G.P. Singh and C.P. Sen, JJ. holding in F. A. arising out of suit for damages on 26-2-1975 that "A Magistrate has no jurisdiction under that provision to release the vehicle seized Under Section 18(3) of the Act" [M. P. Motor Vehicles (Taxation of Goods) Act, 1962 - repealed by Adhiniyam of 1991 in terms of Section 26] and forwarded the case on 24-2-1997 to be laid before Hon'ble the Chief Justice to constitute Full Bench to resolve the conflict and opine as to which of the two sounds in regard to "yes" or "no" to the jurisdiction of Criminal Court has sonority to law i.e. Adhiniyam vis-a-vis Code.
4. As noted in proceedings of 24-2-1997, tax, as leviable, is said to have been paid by the Non-applicant (owner of the vehicle) after securing release on supratnama and surety. This purpose, as envisaged Under Section 16(3) of Adhiniyam, i.e. seizure and detention for "the realization of tax due" thus appears to have been achieved.
5. The issue before us is to determine as to whether or not Criminal Court has jurisdiction to release vehicle, even temporarily on supratnama under provisions of the Code when seized by the Taxation Authority or by any other officer, authorised by the State Government in this behalf on the ground of specified faults and defaults and thus, to decide as to which of the aforesaid two decisions laid down the correct law and should hold the field hereafter? The allied question is whether order dated 24-7-19% and consequent supratnama are, irrespective of determination of the aforesaid issue, liable to be incinerated at this distance of time after undisputed payment of tax as was due? The submission on 24-2-1997 before single Bench was that the issue, after discharge of liability of tax, had become academical. True it is that law cannot run smooth course in state of tenebrosity. When there is a question of enormity of absence or presence of jurisdiction of Criminal Court, Larger Bench like this has to supply the answer.
6. Both the sides have filed synopsis in support of their respective stands.
7. We have heard at length Shri Girish Desai, learned Government Advocate for the applicant and Shri R. K. Bhadang, learned counsel for the Non-applicant on 17-4-1998. The main point, pressed by Shri Desai is remedy cannot be else where and recourse to provisions of Adhiniyam is inevitable. He placed reliance on AIR 1983 SC 1225, Transport Commissioner, Andhra Pradesh, Hyderabad and Anr. v. S. Sardar Ali and Ors. and added that scheme of law luculently spelt out exclusive spelt out exclusive jurisdiction under the Adhiniyam and exclusion of jurisdiction under the Code. He concluded by submission that decision of Durga Prasad (supra) laid down the correct law and decision of Brahmanand (supra) needed to be overruled. Shri Bhadang, on the other hand, took shelter under decision of Brahmanand, labelling it as in accord with Adhiniyam, and argued that Section 19 of the Adhiniyam manifested that jurisdiction of civil Courts alone was taken away and Rules 16 and 17 of M.P. Motor Yan Karadhan Rules (For short 'Rules') further fortified the view that jurisdiction of Criminal Courts to consider release of vehicle in such seizure and detention subsisted. He added that decision of Durga Prasad needed to be held as bad in law. AIR 1964 SC 322 is pressed into service.
8. The stage is now set to focus attention on relevant provisions of Adhiniyam, Rules and Code. We find it apt to quote the same.
(i) Section 16(3) and (4) provide as under :-
"(3) The Taxation Authority or any officer authorised by the State Government in this behalf may if it/he has reason to believe that a motor vehicle has been or is being used without payment of tax, penalty or interest due, seize and detain such motor vehicle and for this purpose take or cause to be taken any step as may be considered proper for the temporary safe custody of such motor vehicle and for the realisation of tax due".
"(4) Where a motor vehicle has been seized and detained under Sub-section (3), the owner or the person incharge of such vehicle may apply to the Taxation Authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and if such authority or officer after verification of such documents, is satisfied that no amount of tax is due in respect of that vehicle, may be an order in writing release such vehicle."
Sub-section (4), inserted by 10 of 1993, requires application for release of the vehicle to Taxation Authority or any other officer authorised in this behalf by the State Government. It does not speak of Criminal Court
(ii) Section 20 of Adhiniyam, extracted below, provides an appeal also against the seizure of motor vehicle Under Section 16 on payment of amount of tax and penalty levied -
"20. Appeal. - Any person -
(a) aggrieved by an order made for levy of tax or for penalty imposed Under Section 13, or
(b) aggrieved by the seizure of motor vehicle made Under Section 16, or
(c) aggrieved by any order passed under this Act, may, within the prescribed time and in the prescribed manner appeal to the prescribed authority, who shall, after giving such person and the Taxation authority an opportunity of being heard, dispose of the said appeal and the decision thereon shall be final.
Provided that no appeal shall be entertained unless the amount of tax and penalty levied, in respect of which the appeal has been preferred has been paid".
(iii) Rules 16 and 17 and 18(1) of the Rules are as under :-
"16. Procedure regarding entry and search. - (1) Any officer of Transport Department not below the rank of Transport sub-Inspector or an officer of the Police Department not below the rank of Sub-Inspector of Police may exercise the powers under Sub-section (1) of Section 16 of the Act.
(2) All searches made under Sub-section (1) of Section 16 of the Act shall be made in accordance with the provisions of the Code of Criminal Procedure, 1973 (No. 2 of 1974).
17. Procedure for seizure and detention of motor vehicle in case of non-payment of tax. - (1) The memorandum of seizure and the order of seizure and detention of motor vehicle under Sub-section (3) of Section 16 of the Act shall be made in Form U-1 and U-2 respectively, and copies thereof shall be served on the persons from whose possession or control such motor vehicle has been seized or detained.
(2) The motor vehicle seized and detained shall be kept in safe custody of the nearest police station or at any other place at the discretion of the officer seizing the motor vehicle or the Taxation Authority.
(3) The vehicle detained shall be released by the officer or the Taxation Authority seizing it on payment of tax, penalty and interest due.
18. (1) Any person aggrieved by an order passed by any officer under the Act or these rules against which an appeal lies, may within thirty days of the date of the knowledge of the order prefer an appeal to the Transport Commissioner, Madhya Pradesh at Gwalior."
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It is clear that vehicle can be released by the officer or the Taxation Authority seizing it on payment of tax, penalty and interest due. This also does not speak of any power of Criminal Courts.
(iv)(a) Sections 451 and 457 of the Code of Criminal Procedure read as under :-
"451. Order for custody and disposal of property pending trial in certain cases. - When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of".
"457. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such condition (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
Manifestly, Section 451 of the Code is attracted when "property is produced before any Criminal Court" and orders are necessary pending conclusion of the inquiry or trial. Section 457 of the Code is applicable when "property is not produced before a criminal Court during an inquiry or trial", but its seizure by a Police Officer is "reported" to a Magistrate under the provisions of the Code. Section 102 of the Code contains power of Police Officer to seize certain property.
(vi)(b) Sections 4 and 5 of the Code are as under :-
4. Trial of offences under the Indian Penal Code and other laws. -
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offence under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
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The provisions of special or local law thus, remain unaffected by anything contained in the Code.
9. Article 246 of the Constitution of India provides three lists known as "Union List", "State List" and "Concurrent List". Seventh Schedule containing these lists, shows that Entry 56 and 57 pertain to such taxes and are in the "State List". The State has enacted the Adhiniyam and Rules. Vires are not challenged. Other officer is to be duly authorised.
10. The Adhiniyam' and 'Rules' indicate the matter, manner and steps. It is not contended that the aforesaid vehicle was produced or its seizure was by a police officer & reported to the Magistrate. Absent this, Sections 451 or 457 of the Code, to be operative prior to conclusion, do not and cannot come into play and recourse would destroy or dent the provision of Adhiniyam' and 'Rules'. Law does not sanction such a destructive course.
11. Sub-section (4) of Section 16 of the Adhiniyam is not considered in the case of Brahmanand (supra) but is considered in case of Dinesh Kumar Jaiswal v. State of M. P. and Ors., M. P. No. 1025 of 1993, decided by the Division Bench on 5-3-1993 which suffered mortality at admission stage after hearing both the sides on observation that "the petitioner must first exhaust the internal remedy" under the Adhiniyam. The revision petition, filed by Babulal (Cr. Rev. No. 10 of 1992 - decided by the Single Bench on 8-2-1993) had the fate of summary dismissal after consideration of Section 451/457 of the Code on conclusion that "the application for release of the vehicle on Supratnama was itself not maintainable". By the common order dated 24-2-1994, rendered by the Division Bench in M. P. No. 2052/93, Krishna Kumar v. State of M. P. and Ors. and M. C. C. No. 509/93, Krishna Kumar v. Virendra Kumar, it was held that -
"On 15-10-1993, petitioner filed an application before the AC.J.M. Indore for releasing the vehicle Under sections 451 and 457 of the Criminal Procedure Code. The application was clearly misconceived, since the conditions prescribed in the provisions did not exist."
It is also stated in the order that -
"The judgment makes it clear that where a vehicle is seized Under Section 16(3) of the Act, the owner of the vehicle has a right to represent before the Taxation Authority with relevant documents Under Section 16(4) of the Act and if he fails to satisfy the Taxation Authority, he has a right to file an appeal Under Section 20 of the Act and the same are effective, efficacious and alternative remedies. This was again reiterated in M. P. No. 1617/92."
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The owner of the vehicle was, as ruled in the aforesaid order, required to resort to Section 16(4) and on unsuccess, to Section 20 of the Adhiniyam. These decisions clearly rule that one should pursue the remedy provided under Adhiniyam. Recourse to Section 451 or 457 of the Code is neither possible, nor permissible.
12. Section 19 of the "Adhiniyam" or Rules 16/17 of the 'Rules' do not even impliedly suggest availability of remedy under the Code. The 'Adhiniyam' and 'Rules' are self-contained Code and do not permit recourse to "other law like the Code of Criminal Procedure" for release of vehicle.
13. The provision spells out as to "who is to be approached" and "how is the Authority to be approached". This then excludes resort to Section 451 or 457 of the Code. There is thus, no tenebrosity to be torn.
14. Now we may notice other case-law as well.
15. Section 16(4) and 20 of Adhiniyam and Rules 16 and 17 of Rules have conferred power on the Taxation Authority or any officer authorised by the State Government in this behalf to release vehicle seized and detained Under Section 16(3) of the Adhiniyam. Section 20 provides an appeal on payment of amount of tax and penalty levied. Rules also require payment of interest due. To permit recourse to ection 451 or 457 of the Code before a Criminal Court would occasion an alteration of the material of which the Adhiniyam is woven which is impermissible. Lord Denning in Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481 stated in classic terms that -
"A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
No creases are shown and none is visible. Hence, there is no question of ironing out. One has to adher to the scheme of law. If power is conceded to Taxation Authority or any authorised officer, it cannot reside in any other forum like Criminal Court. Shri Desai has stated that so far no officer is authorised. However, even when a police officer is given authority, he has to operate under Adhiniyam and not under the Code. Seizure is in terms of Form U-1 and U-2 (Rule 17).
16. The question is in regard to "Tax". Latham, C. J. of the High Court of Australia in Mathews v. Chicorji Marketing Board, 60 CLR 263 explained that "Tax" implies "Compulsory exaction of money by proper authority for public purposes". Now if an owner of a vehicle evades or avoids exaction and imperils public purposes, he, on seizure and detention of vehicle, should face the compulsion of resorting to remedy under Adhiniyam. No other law can provide protective umbrella. The authority proceeds when it has "reason to believe" that tax is evaded. In (1973) 3 SCC 265, The Commissioner of Sales Tax v. M/s Bhagwan Industries (P.) Ltd, it is explained that words "reason to believe" convey that there must be some rational basis to form the belief. After all, no power is exercisable arbitrarily or capriciously. Adhiniyam prescribes the "mode". In 1982 JLJ 805, Nathusingh v. State of M.P. and Anr. placing reliance on AIR 1936 PC 253, Nazir Ahmad v. King Emperor it is held that if certain thing is to be done in a certain way, then it has to be done in that way alone and all other methods should be taken as forbidden. Recourse to Criminal Court, in the absence of production or report, should be held as forbidden.
17. In AIR 1984 SC 1183, Commissioner of Income Tax, Bombay v. Mahindra and Mahindra Ltd., it is observed that "discretion must be exercised only by the authority to which it is committed." Hence, discretion to release the vehicle has to be exercised only by the specified authority or officer and none else. In AIR 1979 SC 855, State of Haryana v. Smt Darshan Devi, it is held that "law must keep the promise to justice". This is how law operates to do justice between parties. As held in AIR 1986 SC 137, American Home Products Corporation v. Mac Laboratories Pvt. Ltd. interpretation of statutes should not lead to manifest absurdity, futility, palpable injustice or absurd inconvenience or anomaly. Power of a Magistrate, as held in 1967 MPLJ15 N, State of M.P. v. Sekh Ramzani, is not unlimited and is regulated by law. He cannot order the doing of an act in excess of the power conferred on him by law.
18. In 1994 MPU681 (M. P. Motor Yan Karadhan Adhiniyam) Naveen Raghunath Karnik v. State of M. P., the Division Bench of this Court held that Section 20 of the Adhiniyam contains an efficacious and alternative remedy on unsuccess Under Section 16(4) and aggrieved person has to pursue that course. In AIR 1986 SC 2197, Ramsingh v. Gram Panchayat, it is held that when jurisdiction of a forum is taken away, resort to such forum would be misconceived and an exercise in futility. The decisions, eight in number, relied on by Shri Bhadang, do not improve his side of the case.
19. In AIR 1978 SC 17, Dinesh Chandra Sharma v. State of Assam and Ors., it is held that, in interpreting provisions of a statute, no words should be considered redundant or surplus. The words employed in Section 16(4) of the Adhiniyam cannot therefore, be considered as redundant or surplus. An application for release of the vehicle thus, lies to the Taxation Authority or any authorised officer together with relevant documents on seizure and detention and not to any other forum including Criminal Court and power vests in such authority to order release on satisfaction that "no amount of tax is due". This naturally excludes applicability of Section 451 or 457 of the Code. Remedy lies Under Section 16(4) and, thereafter Under Section 20 of the Adhiniyam.
20. Even extraordinary provision like Article 226 of the Constitution of India is normally unavailable when "Statutory Forum" is available. In AIR 1994 SC 754, State of U.P and Anr. v. Labh Chand, it is held that :-
"When a statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the constitution is a legal position which is too well settled".
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21. It is thus, clear that recourse to Section 451 or 457 of the Code is unavailable in view of availability of "Statutory Forum" in terms of Section 16(4) and 20 of the Adhiniyam.
22. We take it that decision in Brahmanand's case (supra), ruling in favour of jurisdiction, might have been different if Section 16(4) was there before the Court.
23. An Irish Judge upon his elevation to the Bench took the vow to hold the scales of justice absolutely even. It has to be even. Law cannot be appreciated in divellicated fashion. Even in exercise to excorticate, it is decipherable that one does not have option to choose the Forum at will. Provisions, like Section 16(4) of the Adhiniyam and Rules, as extracted above, are emblematical enough to show necessity of seeking remedy and relief under the Adhiniyam. It is futile to think of short-cut, which often proves to be a wrong-cut, under the Code and is inutile to avoid rigour of Adhiniyam.
24. Courts have to act in fair and reasonable manner. In (1956) AC 696, Davis Contractors Ltd. v. Fareham Urban District Council, Lord Radcliff put it elegantly thus -
"their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the Court itself."
25. We have found intention of statute. If it is onerous, remedy as held in (1951) 2 All E.R. 834 lies in amending law. But till then, law has to be obeyed. Jurisdiction cannot be assumed where none existed. No one then can say that it is there. Intention of statute is to secure payment of tax.
26. What thus, emerges can be summed up as under :-
(a) Taxation Authority or any officer authorised by state Government in this behalf can seize and detain a motor vehicle on "reason to believe" that there is fault or default in payment of amount of tax Under Section 16(3) of Adhiniyam. Even authorised officer, be it a Police Officer, has to operate under Adhiniyam and not Code.
Applicability of certain provisions of the Code for search or seizure is a matter of manner and procedure and does not render Section 451/457 of the Code operative in such cases.
(b) Application for release of the vehicle when seized and detained, lies to aforesaid authority and such authority is empowered to release on satisfaction that no tax is due in terms of Section 16(4) of the Adhiniyam. The "Object of Tax" is not liable to be frustrated.
(c) Aggrieved person can file an appeal Under Section 20 of the Adhiniyam on deposit of amount in question.
(d) Except Sections 451 and 457 of the Code, no other provision is shown to exist for the purpose. But Section 451 of the Code gets attracted only "when property is produced before any Criminal Court during any inquiry or trial" and is concerned with "proper custody of such property pending conclusion of the inquiry or trial". Section 457 of the Code comes into play when seizure is by a Police Officer who reports to a Magistrate under the Code. It empowers the Magistrate to make an order respecting disposal or delivery "to the person entitled to the possession thereof". On seizure Under Section 16(3), Section 451 is inapplicable till stage of inquiry or trial in a Criminal Court and Section 457 of the Code cannot be invoked unless seizure is by a police officer and is reported under the Code and some one is "entitled". Person in arrear and in error is not prima facie "entitled." These two Sections, thus, do not apply till requisite conditions are shown to be satisfied. At the infant stage, recourse to Criminal Court is impermissible. Hence, only Section 16(4) and Section 20 of Adhiniyam held to be efficacious are applicable. This power cannot be usurped by any Criminal Court.
(e) "Statutory Forums" have to be approached. Resort to Section 451 or 457 of the Code is thus, impermissible. The Criminal Court thus, does not possess jurisdiction to entertain prayer for interim release of the vehicle and grant relief under the Code. Section 19 or Rules do not indicate existence of jurisdiction of Criminal Court in case of action Under Section 16(3) of the Adhiniyam.
27. Despite Section 16(4) and 20 of Adhiniyam, the Non-applicant resorted to Forum under the Code and the Criminal Court held the prayer irrecusable and granted relief of release of the vehicle under umbrella of Brahmanand's case (supra). The non-applicant, thus, shaped the case under the Code on assumption that "jurisdiction was there" on the pattern assumed by the great British explorer, George Mallory. Once he was asked as to why did he want to climb Mount Everest? To that question he had replied "Because it is there". Now we resolve the conflict and conclude that "Criminal Court has no jurisdiction in the light of Section 16(4) and 20 of the Adhiniyam for interim release of motor vehicle seized and detained by the specified authority Under Section 16(3) on Supratnama and/or surety as was done in this case". SEIZURE IS FOR TAX.
28. Ex-consequenti, we overrule Brahmanand's decision (1994 MPWNI 126) as also other decisions taking view that Criminal Court has jurisdiction to consider release of vehicle, seized Under Section 16(3) of the Adhiniyam, under the provisions of the Code and approve Durgaprasad's decision (FA. No. 116/1971) as also the other decisions to the extent of view that in such cases Magistrate lacked jurisdiction.
29. We, therefore, hold that the Criminal Court had no jurisdiction to pass order dated 24-7-1996, impugned herein and to release the vehicle on Supratnama and surety. The Non-applicant was under legal obligation to resort to Section 16(4) and later Section 20, if occasion arose, of Adhiniyam.
30. All the same, after declaration of law, we do not deem it proper to quash the order dated 24-7-1996 and consequent Supratnama and supporting surety at this distance of time after payment of the amount of tax as leviable and find it fit to dispose of this Criminal Revision in terms indicated below :-
(a) Applicant shall have liberty to approach the concerning Court seeking recalling of order dated 24-7-1996 and cancellation of consequent Supratnama and surety on the strength of this order, if the same posed any problem in any proceeding under the law.
(b) In case of recalling or cancellation at the instance of the applicant, the Non-applicant shall have freedom to resort to Section 16(4) or 20 of the Adhiniyam within 15 days from the date of recall or cancellation, seeking condonation of delay on ground of pendency of this Criminal Revision, to obtain order/direction from appropriate authority on merits in conformity with law, if situation so warranted.
31. This revision petition, thus, reaches terminal point and stands disposed of as above.
32. We, however, leave the parties to bear their own costs as incurred in this case.
33. In the face of earlier conflict in decisions and in view of importance of the matter, we direct that the Registrar of this Court shall promptly forward a copy of this order each to the District and Sessions Judges in the jurisdiction of the High Court of this State who, in turn, shall intimate the Magistrates/Judges posted in their respective jurisdiction about this order immediately so as to avoid repetition of such orders and to ensure that "Rule of Law", and NOT "Rule of Man" prevails. This is the only way to destroy "darkness" and to see "light". The latter has to be visible.
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