Chattisgarh High Court
Amit Jain vs State Of Chhattisgarh on 7 July, 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P.(227) No.82 of 2021
Amit Jain S/o Padam Jain, Aged About 38 Years R/o Shiv Para, Near
Sharda Milk Dairy Durg, Tahsil And District Durg Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh, Through The Collector, Durg, District Durg
Chhattisgarh
2. Assistant Commissioner (Excise) Durg, District Durg Chhattisgarh
---- Respondents
For Petitioner - Mr. Tarendra Kumar Jha, Advocate.
For State/respondents - Mr. Sameer Oraon, Govt. Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
Order on Board
07-07-2021
1. This petition under Article 227 of Constitution of India has been brought
seeking indulgence of this Court for granting relief to the petitioner by
way of interim custody of the vehicle seized in connection with the
offence committed under C.G. Excise Act 2015.
2. It is submitted that the petitioner is the registered owner of the Activa
Scooter No.CG-04-KS-4031. This applicant is not an accused in the
offence registered under C.G. Excise Act, 2015 against other co-
accused persons. Although, the Collector, Durg has initiated the
confiscation proceeding with respect to this seized article but the
petitioner has entitlement for interim custody until the final order is not
passed in the confiscation proceeding. The application filed for interim
custody before Collector Durg has been dismissed vide order dated
10.09.2020 without mentioning any reason and this order is a non-
speaking order, therefore, it is submitted that on the basis of the prima-
facie entitlement of the petitioners for interim custody of the vehicle, this
petition may be allowed and interim custody of the vehicle may be
granted to the petitioner.
3. Reliance has been placed on the judgment of this Court in W.P.(Cr.)
No.121 of 2016 between Ranjeet Kumar Gupta Vs. State of
Chhattisgarh & Anr. decided on 17.04.2017 and in the order of this Court
in W.P.(Cr.) No.365 of 2021 between parties Rajesh Patel Vs. State of
Chhattisgarh and Anr decided on 24.06.2021.
4. Learned State counsel opposes the petition and the submissions of the
learned counsel for the petitioner and submits that although the order
passed by the Collector is not appealable, even then, the petition under
Article 227 of Constitution of India is not maintainable, therefore, the
application under Section 482 of Cr.P.C. is the only remedy available.
Hence, the petition may be dismissed.
5. Heard learned counsel for the petitioner and perused the documents
present on record.
6. The provision under Section 47 A (2) of the Act, 1915 is as follows:-
"47-A (2) When the Collector, upon production before him of
intoxicants, articles, implements, utensils, materials,
conveyance etc. or on receipt of a report about such seizure
as the case may be, is satisfied that an offence covered by
clause (a) or clause (b) of sub-section (1) of Section 34 has
been committed and where the quantity of liquor found at the
time or in the course of detection of such offence exceeds
five bulk liters he may, on the ground to be recorded in
writing, order the confiscation of the intoxicant, articles,
implements, utensils, materials, conveyance etc. so seized.
He may, during the pendency of the proceedings for such
confiscation also pass an order of interim nature for the
custody, disposal etc. of the confiscated intoxicants, articles,
implements, utensils, materials, conveyance etc. as may
appear to him to be necessary in the circumstances of the
case."
7. The Collector while taking up the confiscation proceeding has discretion
with him to pass order of interim nature for custody of any seized Article,
which may appear to him to be necessary in the circumstances of the
case. As the order of rejection of application of interim custody is not
appealable under Section 47-B of 1915, therefore, it can be challenged
in either manner under Article 226 or 227 of Constitution of India. The
petitioner has chosen to file this petition under Article 227 Constitution of
India. As it appears that the Collector while exercising the powers under
Section 47-A Acts as a quasi judicial authority. As he has power to issue
notices to the persons from whom, the article has been seized or to any
other person, who is staking claim on the property seized, for the
purpose of giving them hearing before passing of the order of
confiscation and the Collector has to afford an opportunity to such
persons for making their representation against the proposed
confiscation. Therefore, the Collector exercising such power is a quasi
judicial body and the orders passed are subject to supervision of this
Court, hence, the objections raised by the respondent's side made
hereinabove are not sustainable. I am of this view that the Collector
Durg had the power to exercise discretion for granting interim custody of
the seized vehicle during the pendency of confiscation. The petitioner is
the person who has staked his claim over the seized vehicle, hence, for
the reason that the Collector Durg has failed to exercise such discretion,
which is wanted in such cases, this petition is allowed and disposed off
at the motion stage. The impugned order dated 10.09.2020 is set aside.
The Collector Durg is directed to release the vehicle under seizure in the
offence mentioned hereinabove on appropriate terms, on interim
custody until the completion of the confiscation proceeding. This interim
custody shall remain effective until the final orders are passed by the
Collector Durg in the confiscation proceeding.
8. Accordingly, this petition is disposed off.
Sd/-
(Rajendra Chandra Singh Samant)
Monika Judge
