Chattisgarh High Court
Umashankar Soni vs State Of Chhattisgarh on 14 January, 2025
1
2025:CGHC:2239
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 740 of 2023
Umashankar Soni S/o Murari Prasad Soni, Aged About 60 Years R/o
House No. 189 Ward No. 35, Zone-3, Khursipar, Bhilai, Tahsil And
District Durg Chhattisgarh.
... Petitioner(s)
versus
1- State of Chhattisgarh Through Secretary, Department Of Excise,
Mahanadi Bhavan, Mantralaya, Atal Nagar, Nava Raipur, District Raipur
Chhattisgarh
2-District Magistrate, Kawardha, District Kabirdham Chhattisgarh
3-Superintendent of Police, Kawardha, District Kabirdham
Chhattisgarh.
... Respondents
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For Petitioner : Mr. Ravi Bhagat, Advocate.
For Respondent /State : Mr. Neeraj Sharma, Dy. AG.
----------------------------------------------------------------------------------------------
Hon'ble Shri Arvind Kumar Verma, Judge
Order on Board
14.01.2025
1. Challenge in this petition is to the order dated 15.02.2023 (Annexure
P-5) passed in Criminal Revision No.33/2022 by which learned
Additional Sessions Judge (FTC), Kawardha, Distt -Kabirdham (CG)
affirmed the order of the Excise Commissioner, Raipur dated
18.11.2022 passed in Appeal Case No. REC -09/2022-23 by which
learned Commissioner has affirmed the order of the Collector/District
Magistrate dated 05.04.2022, whereby vehicle of the petitioner has
been confiscated under Section 47-B read with Section 62(2) (c) under
the Chhattisgarh (Amendment) Excise Act, (for short, 'Excise Act').
2. As per prosecution story, on 30.04.2021, the Excise Sub-Inspector
during checking at Chilpi has intercepted the vehicle Mahendra bolero
Pickup bearing No.CG-07-BC-8006 in which the accused persons
namely Sumit Soni and Ravi Sinha were traveling. During search, 07
liter illegal country made liquor has been seized from the said vehicle.
Based upon recovery, offence/crime for offence under Section 34(1) A
& 34 (2) of Excise Act has been registered against them. Vehicle in
question has been seized. Necessary inquiry has been initiated ie
search Panchnama enquiry, seizure Panchnama. Vide memo dated
30.04.2021, case was forwarded to the District Excise Officer for
initiation of confiscation proceeding u/s 47 of the Excise Act. After
completion of investigating, charge sheet has been filed against the
accused persons for offence u/s 34(1)(A), 34(2), 36, 59(A) of the
Excise Act. Respondent No.2/District Magistrate has initiated the
proceeding for confiscation and issued notice to the petitioner for his
appearance. Statements of the witnesses have been recorded. During
pendency of the proceeding, on 12.10.2021 respondent No.2 has
consider the application for Supurdnama and as an interim measures,
the alleged seized vehicle has been released on Supurdnama. On
appreciation of statements of witnesses (Sudhir Arora, Krishna Dhurve
and Nageshraj) and going through entire documentary records,
respondent no.2/District Magistrate vide order dated 05.04.2022 has
confiscated the seized vehicle of the petitioner holding that alleged
seized vehicle carrying two bags (containing 07 liters) illegal country
made liquor. Against which, the petitioner preferred an appeal before
the learned Excise Commissioner, Raipur and vide order dated
18.11.2022 the learned Commissioner has affirmed the order of
respondent No.2 relying upon the statement of the investigating officer.
Being aggrieved by order of Excise Commissioner, Raipur, the
petitioner preferred a Criminal Revision before the Additional Session
Judge, Kawardha and on 15.02.2023 the learned Revisional Court has
rejected/dismissed the revision of the petitioner and affirmed the orders
of respondent No.2/District Magistrate and the Excise Commissioner
holding that the authority have taken action under the provisions of
Excise Act. Hence, this petition.
3. Learned counsel for the petitioner submits that respondent no.2,
without considering the material/evidence and provisions contained in
Section 47(A) of the Excise Act, merely relying upon the statement of
investigating officer, has issued the confiscation order which is not
sustainable under the eye of law. The learned Courts below have failed
to consider the fact that criminal proceeding in Criminal case
No.1271/2021 is still pending before the trial Court, in which, the
witnesses have been examined but no such final conclusion/findings
have been given, therefore, unless and until the learned trial Court not
come to conclusion that the prosecution has proved their case beyond
all reasonable doubt, the respondent-authorities without final
conclusion of the competent jurisdiction of the Court declaring the
involvement in alleged offence is perverse, illegal and contrary to
provisions of the law. The vehicle in question has been seized in
instance and possession of Sumit Soni and Ravi Sinha, which has
been prime suspect and responsible to explain regarding the alleged
liquor in confiscated vehicle, but the respondent No.2 while initiating
the proceeding no such notice under Sub-section 3 of Section 47(A) of
the Excise Act has been issued. The seizure witnesses namely Krishna
Dhurve and Udit Arora does not support the confiscation of alleged
liquor in the possession of alleged vehicle. The vehicle in question is
lying before the police authority since 30.04.2021 and with the passage
of time the condition of the vehicle would deteriorate. Hence, it is
prayed that impugned orders be set aside and vehicle in question be
released in favour of the petitioner.
4. Learned State Counsel opposes the submission of counsel for the
petitioner and submit that on appreciation of evidence/material
available, learned Session Court has rightly passed the impugned
order (Annexure P-5) and affirmed the orders of the learned District
Magistrate and learned Excise Commissioner dated 18.11.2022 &
05.04.2022 (Annexure P-4 & P-3), hence, no interference is required
by this Court.
5. Hear learned counsel for the parties and perused the evidence/material
available including the impugned order.
6. Perusal of records would show that petitioner is not accused in this
case before the trial Court and after trial of the case, learned trial Court
has acquitted the accused persons namely Sumit Soni and Ravi Sinha
from the charges levelled against them vide order dated 27.08.2024
passed in Criminal Case No.1271/2021.
7. Hon'ble Supreme Court in case of Abdul Wahab versus State of
Madhya Pradesh (CRA No.340/2022) decided on 04.03.2022 has
observed thus:
" in a case where the offender/accused are acquitted in the
criminal prosecution, the judgment given in the criminal
trial should be factored in by the District Magistrate while
deciding the confiscation proceeding. In the present case,
when the accused involved in Excise Act were acquitted,
the confiscation of the vehicle involved in the said offence,
amounts to depriving the petitioner of his property rights
and is violative of rights guaranteed under Article 300A of
the Constitution.
8. Considering facts of the case, pleadings made in the petition,
submissions of counsel for the parties, the fact that petitioner is not
accused in this case and trial Court vide order dated 27.08.2024 has
acquitted the accused person of this case, further considering the
decision of Hon'ble Supreme Court in case of Abdul Wahab (supra), I
am inclined to allow the instant petition.
9. Accordingly, the present petition is allowed. Impugned order dated
15.02.2023 (Annexure P-5) passed by the learned Session Court,
affirming the orders dated 18.11.2022 & 05.04.2022, is hereby set-
aside. The vehicle in question be released in favour of the petitioner
forthwith.
CC as per rules.
Sd/-
(Arvind Kumar Verma)
Judge
J/-
