Chattisgarh High Court
Ranjit Singh vs State Of Chhattisgarh on 4 February, 2025
1
2025:CGHC:6272
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 1052 of 2022
Ranjit Singh S/o Nirmal Singh Rana Aged About 38 Years R/o Pandwala,
Mohali, Sahibjada A Ajeet Singh Nagar, P.B., Pin Code 140201 (Punjab)
(Wrongly Mentioned As Nirmala In The Impugned Order Sheet)
... Petitioner
versus
State Of Chhattisgarh Through District Magistrate, Kawardha, District -
Kabirdham Chhattisgarh.
... Respondent
For Petitioner : Mr. Dharmesh Srivastava, Advocate
For State/Respondent : Ms. Pushplata Khalkho, PL
Hon'ble Shri Justice Arvind Kumar Verma
Order on Board
04/02/2025
1. The present petition under Section 482 of the Code of Criminal
Procedure, 1973 has been preferred by the petitioner being aggrieved
by the order dated 03.06.2022 (ANNEXURE A-1), passed by the
learned Sessions Judge, Kawardha, District Kabirdham (C.G.) in
Criminal Revision No.06/2022, arising out of the order passed by the
learned Excise Commissioner, Chhattisgarh, Raipur in an Appeal Case
No. R.E.C/-20/2020-21 vide order dated 24.07.2021 (wrongly
mentioned as 02.12.2019 in the impugned order) filed by the applicant
under section 47-B of Chhattisgarh Excise Act, 1915 against the order
dated 28.01.2021 passed by the learned Collector, Kabirdham, District
Kabirdham (C.G.) in Case No. B-121 Year 2019-20, the present
petitioner prefers instant application under Section 482 of Cr.P.C. on
the following facts and grounds:
2. The case of the prosecution in brief is that on 19.04.2020, the Excise
Sub-Inspector received secret information in Excise Circle Kawardha,
District Kabirdham (C.G.) that a truck bearing registration No. PB-65-
AV-1121 is standing in front of a Dhaba in village Harinchhapra and his
driver is selling Goa Whisky. On that basis, the Excise Sub-Inspector
alongwith staff reached the spot after some formalities and a home
guard was sent with a hundred rupees note to the vehicle for
purchasing a quarter of Goa spirit smoothness whisky and just after the
same purchasing the Excise Sub-Inspector alongwith staff took the
accused Nasib Singh in custody and from his possession total 6907.14
bulk liter of Goa spirit smoothness whisky kept in 800 cartons. A notice
under Section 91 was given to the accused regarding permission of
transporting the liquor which was given to the Excise Sub-Inspector
which was seized by him and as per the documents the permit for
export of foreign liquor was issued by Madhya Pradesh Excise
permitting the Great Galleon Ventures Limited, Sejwaya, Dhar holder of
license to export foreign liquor from his licensed premises at Sejwaya
to the Ware House situated at M/s. North East Liquors, Bhalukpong,
District West Kameng (Arunanchal Pradesh) and the license was valid
from 19.03.2020 to 06.04.2020. The Excise Sub-Inspector due to
expiry of the permit and illegal selling of the Goa Whisky by the present
applicant arrested and offence under Section 34(1)(a)(b), 34(2) & 59-A
of Chhattisgarh Excise Act was registered against the accused Nasib
Singh.
3. The charge-sheet has been filed against the co-accused in which it is
requested for permission to submit supplementary charge-sheet
against other co-accused persons involved in the crime in question.
4. The accused persons of this case namely Nasib Singh and Ranjeet
Singh were granted regular bail and anticipatory bail respectively by the
High Court of Chhattisgarh vide order dated 17.11.2020 and
31.03.2021 in M.Cr.C. No. 3345/2020 & M.Cr.C.(A) No. 388/2021
respectively.
5. The District Excise Officer, Kawardha, District-Kabirdham sent a
letter/report bearing no.-/Ex./AP./2020/654 dated 21.04.2020 to the
Collector for confiscation of the vehicle Container Tata Truck bearing
registration no. P.B.-65-AV-1121 and liquor seized by the Excise Sub-
Inspector, Excise Circle Kawardha, District Kabirdham (C.G.) in
connection with Crime No. 12/2020, which was seized from the driver
of the vehicle Nasib Singh.
6. The learned Collector sent an information to the learned Chief Judicial
Magistrate, Kawardha, regarding initiation of proceeding for
confiscation of the aforesaid vehicle container truck on the basis of
report of Excise Circle Kawardha, District - Kabirdham (C.G.) and a
show cause notice was also issued to the present applicant as he is the
registered owner of the vehicle.
7. The reply to the show cause notice filed by the present applicant was
rejected and an application for Supurdnama was also rejected and
thereafter, the prosecution witnesses were called.
8. The statements of three prosecution witnesses namely Nitin Khanduja,
Assistant District Excise Officer, Kawardha, District Kabirdham (C.G.)
and Pawan Yadav and Narayan Vishwakarma were recorded. The
prosecution witnesses namely Pawan Yadav and Shatruhan
Vishwakarma did not support the case of the prosecution, but only
accepted their signature in the documents prepared by the
investigating officer and thereafter only on the basis of evidence of
Assistant District Excise Officer, Kawardha, District Kabirdham (C.G.), it
was held proved that the aforesaid vehicle container truck was involved
in transportation of illicit liquor about 6907.14 bulk liter and order was
passed for confiscation under Section 47 of the Chhattisgarh Excise
Act.
9. The applicant being aggrieved by the impugned order dated
28.01.2022, passed by the learned Collector, Kawardha, District -
Kabirdham (C.G.) filed an appeal before the learned Excise
Commissioner, Chhattisgarh Raipur, District - Raipur (C.G.) on the
ground that the impugned order for confiscation is contrary to facts and
circumstances of the case and also not according to the evidence of
the prosecution witnesses and also it is illegal. It is further ground for
appeal is that the proper appreciation of the fact could not be taken by
the Collector on the fact that the case was prepared that illicit liquor
was selling in village Harinchhapra, but no any witness from the village
was examined or enlisted in the list of prosecution witnesses. It is
further ground that the independent prosecution witnesses Pawan
Yadav and Narayan Vishwakarma did not support the case of the
prosecution and only accepted their signature on blank paper and
clearly mentioned that no any illicit liquor was seized in their presence
and also denied the entire investigation conducted by the investigating
officer.
10. It is further ground that that the entire investigation including report for
confiscation was prepared by prosecution witness Khanduja, по. 1
Excise District Assistant Nitin Officer, Kawardha, District Kabirdham
and the driver of the vehicle was having effective and valid license for
transportation of the liquor which was being transported to Etanagar
and license was issued by Excise Department of Himanchal Pradesh
Government. The opportunity of hearing was not properly given to the
applicant and without recording his evidence of the applicant the order
was passed which is illegal and arbitrary and the mandatory provisions
before confiscation could not be conducted by the Collector, therefore,
the order impugned dated 28.01.2021 is liable to be net
aside/quashed.
11. The learned Excise Commissioner, Chhattisgarh registered the case
and the same was decided by order dated 24.07.2021 and held that
the Collector has passed the order under Section 47 of Chhattisgarh
Excise Act, 1915 for confiscation of the vehicle after going through the
entire documents and considering the evidence of the prosecution
witnesses, therefore, the appeal is devoid of merits.
12. Being aggrieved by the order passed by the learned Excise
Commissioner, Chhattisgarh, Raipur, the petitioner preferred a revision
petition under section 47-C of Chhattisgarh Excise Act, 1915 before the
learned Session Judge, Kawardha, District Kabirdham (C.G.) which
was registered as Criminal Revision No. 06/2022 and the learned
Sessions Judge passed the impugned order dated 03.06.2022,
therefore, the applicant/petitioner prefers the instant application on the
following amongst other grounds.
13. Learned counsel for the petitioner contended that the present petitioner
is the registered owner of the vehicle container truck bearing
registration no.PB-65-AV-1121 and the same was not being used in
crime in question and the order of confiscation was not in accordance
with law. The present applicant is entitled to get his container truck on
Supurdnama (Interim custody), in light of the various judgments
passed by the Hon'ble Apex Court.
13.1- An opportunity to the person referred in Clause (c) of making a
representation against proposed confiscation though it is not
specifically mentioned in Clause (c) of sub-section (3) of Section 47-A
of the Act of 1915, the material collected in support of confiscation
should also be supplied. The supply of the material on the basis of
which opinion has been formed for confiscation of vehicle is included in
the opportunity as contemplated under Section 47-A (3) (c) of the
Chhattisgarh Excise Act, 1915. To enable the person to defend himself
properly, it is necessary that the material on the basis of which opinion
has been formed should also be supplied. It is further submitted by the
counsel that the Collector while confiscating the seized intoxicants,
articles, implements, utensils, materials, conveyance is also obliged to
give a hearing to the person mentioned in Clause (b) of sub-section (3)
of Section 47-A of the Act. The order impugned as well as the earlier
orders are bad in law as the provision of sub-section (3) of section 47-C
have not been complied with by the Collector, therefore, the initiation
and order of confiscation was not only bad in law, but erroneous and
liable to be dismissed as well, therefore the vehicle may kindly be
released on Supurdnama in favour of the present applicant.
13.2- He further contended that the seized container truck is no use to
keep in either police station or the court below and present applicant
will produce the same as and when required and the same was not
been seized for an offence under section 34(1)(a)(b), 34(2) & 59-A of
Chhattisgarh Excise Act. 1915, as per sub-section (2) of section 47-A of
the Act, therefore, the vehicle may kindly be released on interim
custody (Supurdnama) in favour of the applicant. It is, therefore, prayed
that this Court may kindly be pleased to allow this application and
further be pleased to pass an order to release the container truck
bearing registration no. PB-65-AV-1121 of the applicant which is seized
by Excise Circle Kawardha, District Kabirdham (C.G.), in the interest of
justice.
14. On the other hand, learned counsel for the State would support the
impugned order and submit that order of confiscation has rightly been
passed by the Collector, which has been affirmed by the appellate and
revisional authorities is in accordance with law and as such, the
petition deserves to be dismissed.
15. I have heard learned counsel for the parties and considered their rival
submissions made herein above and also went through the records
with utmost circumspection.
16. Section 47-A of the Act of 1915 was inserted in the Act of 1915 by M.P.
Act No.22 of 2000 w.e.f. 4.8.2000. Subsection (2) of Section 47A of Act
of 1915 provides for confiscation. It can be exercised if Collector is
satisfied that an offence covered by clause (a) or clause (b) of
subsection (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 fifty bulk liters he may, on the ground to be recorded
in writing, order the confiscation of the intoxicants, articles, implements,
utensils, materials, conveyance etc. so seized.
17. Subsection (3) of Section 47A of the Act of 1915 provides as under:-
"(3) No order under subsection (2) shall be made unless the
Collector has-
(a) sent an intimation in a form prescribed by the Excise
Commissioner about initiation of proceedings for confiscation
of seized intoxicants, articles, implements, utensils,
materials, conveyance etc. to the court having jurisdiction to
try the offence on account of which the seizure has been
made;
(b) issued a notice in writing to the person from whom such
intoxicants, articles, implements, utensils, materials,
conveyance etc. have been seized and to any person staking
claim to it and to any other person who may appear before
the Collector to have an interest in it;
(c) afforded an opportunity to the persons referred to in clause
(b) above of making a representation against proposed
confiscation;
(d) given to the officer effecting the seizure under subsection (1)
and to the person or persons who have been noticed under
clause (b) a hearing."
18. A careful perusal of the aforesaid provisions would show that as per
clause (a) of subsection (3) of Section 47A of the Act of 1915, the
Collector has to send an intimation in the form prescribed by the Excise
Commissioner about the initiation of proceedings for confiscation of
seized intoxicants, articles, implements, utensils, materials,
conveyance etc. to the court having jurisdiction to try the offence on
account of which the seizure has been made. The Collector is further
obliged to issue a notice in writing to the person from whom such
intoxicants, articles, implements, utensils, materials, conveyance etc.
have been seized and to any person staking claim to it and to any
other person who may appear before the Collector to have an interest
in it.
19. The Madhya Pradesh High Court in the matter of Rajendra Kumar
Gupta v. State of M.P. & another reported in 2002(4) M.P.L.J. 149
has held that issuance of notice to the driver or the person from whom
vehicle was seized is mandatory and order of confiscation passed
without hearing the person from whose possession the illicit liquor or
contraband is seized is illegal.
20. Clause (c) of sub-section (3) of Section 47-A of the Act of 1915
provides an opportunity to the persons referred to in clause (b) above
of making a representation against proposed confiscation.
21. In the matter of Khem Chand v. Union of India and others in AIR
1958 SC 300, Their Lordships of the Supreme Court have considered
Article 311(2) of the Constitution of India which provides that no person
shall be dismissed or removed or reduced in rank until he has been
given a reasonable opportunity of showing cause against action
proposed to be taken in regard to him. It has been held that an
opportunity to make a representation as to why the proposed
punishment should not be inflicted on him, which he can only do if the
competent authority, after the enquiry is over and after applying his
mind to the gravity or otherwise of the charges proved against the
government servant tentatively proposes to inflict one of the three
punishments and observed as under:
"19. To summarise: the reasonable opportunity envisaged by
the provision under consideration includes:
(a) An opportunity to deny his guilt and establish his
innocence, which he can only do if he is told what the
charges levelled against him are and the allegations on
which such charges are based;
(b) an opportunity to defend himself by cross examining the
witnesses produced against him and by examining himself
or any other witnesses in support of his defence; and finally
(c) an opportunity to make his representation as to why the
proposed punishment should not be inflected on him, which
he can only do if the competent authority, after the enquiry is
over and after applying his mind to the gravity or otherwise
of the charges proved against the government servant
tentatively proposes to inflict one of the three punishments
and communicates the same to the government servant.
In short the substance of the protection provided by rules,
like R. 55 referred to above, was bodily lifted out of the rules
and together with an additional opportunity embodied in S.
240(3) of the Government of India Act, 1935 so as to give a
statutory protection to the government servants and has now
been incorporated in Art.311(2) so as to convert the
protection into a constitutional safeguard."
22. Similarly, an opportunity to the person referred in clause (c) of making
a representation against proposed confiscation though it is not
specifically mentioned in clause (c) of subsection (3) of Section 47A of
the Act of 1915, that the material collected in support of confiscation
should also be supplied. In the considered opinion of this Court, the
supply of the material on the basis of which opinion has been formed
for confiscation of vehicle in question is included in the opportunity as
contemplated under Section 47A(3)(c) of the Act of 1915. To enable the
person to defend himself properly, it is necessary that the material on
the basis of which opinion has been formed should also be supplied.
23. Likewise, the Collector while confiscating the seized intoxicants,
articles, implements, utensils, materials, conveyance is also obliged to
give a hearing to the person mentioned in clause (b) of sub section (3)
of Section 47A of the Act of 1915.
24. The word 'hearing' has been defined in Black's Law Dictionary, 6 th
Edition, page 721 as under:
The introduction and admissibility of
evidence is usually mere lax in a hearing than in a
civil or criminal trial (see e.g. 42 U.S.C.A. $
405(b) which provides for admissibility of evidence
at social security hearings that would otherwise be
inadmissible at regular trial).
Hearings are extensively employed by both
legislative and administrative agencies and can be
adjudicative or merely investigatory. Adjudicative
hearings can be appealed in a court of law.
Congressional committees often hold hearings
prior to enactment of legislation; these hearings
are then important sources of legislative history."
25. The Advanced Law Lexicon-2005th edition defines "hearing" as the trial
of a suit is called a "hearing" and technically considered, this includes
not only introduction of the evidence and arguments of the counsels,
but the pronouncing of the decree by the presiding officer.
26. The Patna High Court in the matter of Sheikh Abdul Rahman v.
Shiblal Sahu and others in 3 AIR 1922 Patna 252 defined the
"hearing" as a judicial session held for the purpose of deciding
issues of fact or that of law; in administrative law, presentment of
argument by the affected individual to the decision making authority.
27. In the matter of Kanaran Nambiar v. Ramunni Nambiar in AIR
1961 Kerala 290, the Kerala High Court has held that "hearing" as
used in the Code of Civil Procedure does not mean the 'hearing of
arguments' only. It refers to all the stages of the trial of a suit namely,
the settling of issues, taking of evidence and hearing of arguments or
'other proceedings tendency to a final adjudication of the suit.
28. Thus, in the light of legal provisions noticed hereinabove and
conditions precedent for passing the order of confiscation and
principles of law noticed, it is quite vivid that before confiscating the
seized intoxicants, articles, implements, utensils, materials,
conveyance etc. as mentioned in Section 47-A (3) (a) of the Act of
1915, the Collector is obliged to send an intimation in the prescribed
form about the initiation of proceedings for confiscation of seized
articles to the court having jurisdiction to try the offence on account of
which the seizure has been made. The Collector is further obliged to
issue a notice in writing to the person from whom such intoxicants,
articles, implements, utensils, materials, conveyance etc. have been
seized and to any person staking claim to and to any other person who
may appear before the Collector to have an interest in it and thereafter
he has to afford an opportunity to the persons referred to in clause (b)
of making a representation against proposed confiscation and lastly, he
is obliged to give a hearing to the officer effecting the seizure under
sub-ection (1) and to the person or persons who have been noticed
under clause (b) a hearing.
29. The aforesaid conditions precedent are sinequa non for passing a valid
order of confiscation of the vehicle seized in excise offence. If one of
the conditions precedent is missing while passing the order of
confiscation, the said order would be vulnerable and liable to be set
aside as order of confiscation involves a drastic action against owner of
the property by which he (owner) is completely deprived of owning the
property having civil consequences. Therefore, the provisions relating
to effecting confiscation have to be construed strictly being penal
provision.
30. Reverting to the facts of the case in the light of the aforesaid principle
of law noticed herein-above, it is quite vivid that in the instant case, the
Collector did not issue any notice to the petitioner along with the
materials in support of proposed confiscation proceedings at any point
of time. It appears from the records that since the petitioner has
already appeared before the Collector by filing an application seeking
interim custody of the subject vehicle, the learned Collector held that
since he is already appearing, therefore, the provisions as contained in
clause (b) of sub-section (3) of Section 47-A of the Act of 1915 stood
complied with, whereas it is not so. The Collector did not issue any
notice of confiscation proceeding to Mr. Nasib Singh from whom the
vehicle was seized on 19.04.2020, nor issued notice to the petitioner
along with material brought on record for confiscation who is admittedly
owner of the vehicle. Incidentally, the petitioner had filed an application
for interim custody of the vehicle, the Collector held that sufficient
compliance of Section 47-A(3) (b) of the Act of 1915 has been done,
which is absolutely illegal finding. He ought to have issued the notice to
both the persons and could have supplied the materials in support of
notice said to be issued for confiscation enabling them to defend
properly the confiscation proceedings.
31. The only submission made is that the provisions contained in Section
47A(3) (a) to (c) of the Act of 1915 have not been complied with,
therefore, the order of confiscation is bad in law.
32. Original record has been requisitioned by this Court. A careful
perusal of the record would show that so far as compliance of the
provisions contained in Section 47A(3) (a) of the Act of 1915 is
concerned, intimation has been sent about the initiation of confiscation
proceeding by learned Collector to the Judicial Magistrate having
jurisdiction to try the offence under Section 34(2) of the Act of 1915.
Similarly, the Collector has issued show cause notice to the petitioner
for compliance of the provisions contained in Section 47A(3)(b) of the
Act of 1915 as the vehicle has been seized from possession of the
petitioner on 19.04.2020 and as such, the provisions contained in
Section 47A(3)(a) and (b) have been complied with.
33. Now the question is whether the provisions contained in Section
47A(3)(c) and (d) of the Act of 1915 have been complied with or not as
it is the case of the petitioner that neither he has been given material
collected in support of proposed confiscation nor he has been given an
opportunity of making a representation against proposed confiscation.
34. A careful perusal of the record would show that after the reply is filed
and evidence of the prosecution is recorded, the Collector straightway
after hearing the parties passed an order of confiscation, as such,
neither material collected for confiscating the vehicle was supplied to
the petitioner nor he was given an opportunity of making a
representation against proposed confiscation, as such, there is total
non compliance of the provisions contained in Section 47-A(3)(c) of the
Act of 1915. Since the vehicle has been seized from possession of the
petitioner, he was required to be supplied the material collected and
was required to be given an opportunity of making a representation
against proposed confiscation as the order of confiscation involves
drastic civil consequences.
35. In that view of the matter, the learned Collector as well as the
appellate and the revisional authorities has committed illegality in
passing the order of confiscation without complying with mandatory
provisions contained in Section 47-A(3)(c) and (d) of the Act of 1915
and consequently, the order of confiscation passed by the Collector as
affirmed by the Excise Commissioner and the Additional Sessions
Judge are hereby set aside. The petitioner's vehicle be released
forthwith.
36. The instant petition under Section 482 of the CrPC is allowed to the
extent indicated herein-above.
Sd/-
(Arvind Kumar Verma)
VASANT KUMAR
KUMAR Date:
2025.02.20
17:52:51 +0530
Judge
Vasant
