Brajesh Yadav vs The State Of Madhya Pradesh
2022 Latest Caselaw 898 MP

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                    The High Court Of Madhya Pradesh
                              Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

MCRC 52037 of 2021

Brajesh Yadav vs. State of MP

============================== Shri Mohammad Parvej, counsel for the petitioner.

Shri KS Tomar, counsel for the respondent/ State.

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Reserved on                                04/01/2022
Whether approved for reporting              ...../......
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                                    Order
                              (Passed on 19/01/2022)

Petitioner has filed this petition under Section 482 of CrPC for

quashment of order dated 09/09/2021 passed by Tenth Additional Sessions

Judge, Gwalior (MP) in CRR No.85 of 2020 affirming the order of confiscation

dated 05/02/2018 passed by Collector (Excise), District Tikamgarh as well as

order dated 05/02/2020 passed by Excise Commissioner in REC No.222/2017-

2018 in connection with seized Hero Honda Passion Plus motorcycle of the

petitioner bearing registration No.UP 93N-7410.

(2) Facts in short necessary for disposal of the present petition are that Hero

Honda Passion Plus motorcycle bearing registration No.UP 93N7410 is alleged

to have been found carrying 50-50 bulk liters of illicit country-made liquor on

02/11/2013 and the police authorities, on suspicion, checked said motorcycle

and on asking, the petitioner disclosed his name ''Brajesh Yadav'' who was

having no valid licence. Police seized the motorcycle with illicit country-made

liquor. Thereafter, offence under the provisions of MP Excise Act was registered

against the applicant at Police Station Orchha vide Crime No.236/2013. In the

meanwhile, the petitioner moved an application under Section 451/457 of CrPC

before Judicial Magistrate First Class, Orchha, District Tikamgarh to get the

seized motorcycle on interim custody. The Collector vide impugned order dated

05/02/2018 invoking the provisions of Section 47-A of MP Excise Act initiated

confiscation proceedings in respect of the said seized vehicle involved in

commission of offence. Being dissatisfied, the petitioner moved an appeal

before the Excise Commissioner but Excise Commissioner vide order dated

05/02/2020 also confirmed the order of the Collector passed on 05/02/2018.

Thereafter, the petitioner filed a revision before Tenth Additional Sessions

Judge, Gwalior and the same has been dismissed vide impugned order dated

09/09/2021. Hence, this revision.

(3) It is submitted by the counsel for the petitioner that the petitioner is the

original owner of seized motorcycle. On receiving notice of confiscation, the

petitioner appeared before the Collector and stated that the trial is still pending

before the Court of JMFC, however, the Collector passed the impugned order

dated 05/02/2018 invoking the provisions of Section 47-A of MP Excise Act

initiated confiscation proceedings in respect of the said seized vehicle involved

in commission of offence. At the threshold, learned counsel for the petitioner

submits that the orders passed by authorities below firstly, the Collector,

secondly, Excise Commissioner and thereafter, the revisional Court both are not

proper, legal and justified and deserve to be set aside. It is further submitted that

the power of the Collector for initiating the confiscation proceedings is not

disputed, but the confiscation proceedings should have been initiated only after

culmination of criminal case, i.e. the case registered against the person for

offence under MP Excise Act and also that the culmination proceedings should

result in the conviction of accused only then confiscation proceedings can be

justified. It is submitted that the proceedings of confiscation would come into

play only after a Court of competent jurisdiction found the accusation and the

allegations made against accused as true and recorded a finding that the seized

vehicle was, as a matter of fact, used in the commission of offence. Merely on

the basis of seizure and accusation of allegations levelled by Departmental

authorities, proceedings initiated would render it to be invalid and

unconstitutional. In supported of contentions, the counsel for the petitioner has

relied upon the judgment passed by Hon'ble Supreme Court in the matter of

State of Madhya Pradesh vs. Madhukar Rao, reported in 2008(14) SCC 624

and the order dated 24/06/2016 passed by Chhattisgarh High Court in Criminal

Misc. Petition No.221 of 2016 [Smt. Roop Kumari Sidar vs. State of

Chhattisgarh through District Magistrate,Distt. Durg(CG)]. IA No. 178 of

2022 along with copy of judgment dated 04/12/2021 has also been filed by the

petitioner showing that he has been acquitted of offence under Section 34(2) of

MP Excise Act passed by the Court of JMFC, Orchha in RCT No.269 of 2014.

Hence, prayed for quashing the impugned orders and for release of the said

vehicle.

(4) On the other hand, the State Counsel opposed the petition and submitted

that impugned orders passed by the authorities below are purely in accordance

with the provisions of law governing the field and since it is purely in

accordance with the powers conferred upon them and also speaking in nature,

hence, the same do not warrant any interference.

(5) On perusal of the record, it is clear that a criminal case under Section

34(2) of MP Excise Act was initiated against the petitioner and the same was

pending before the Court of JMFC, Orchha. Pending the criminal case before

the Court of JMFC, the Collector had initiated the confiscation proceedings in

respect of said vehicle ordering confiscation on 05/02/2018 which was put to

challenge by petitioner before Excise Commissioner and thereafter, before the

revisional Court and the revisional Court has also upheld the order of Collector

as well as of the Excise Commissioner.

(6) In view of aforesaid judicial pronouncements referred herein-above in

Madhukar Rao (supra) and Smt. Roop Kumar Sidar (supra), it appears that

order of specified officer confiscating the vehicle without awaiting the decision

of competent criminal court about commission of offence has also used the

offending vehicle in the said offence is without jurisdiction and without

authority of law. Therefore, this Court is inclined to take the same view and

reach to the conclusion that in absence of final adjudication in the criminal case

initiated for offence under Section 34(2) of MP Excise Act, firstly against the

petitioner and secondly in respect of seized mtorocycle involved in the offence,

the initiation of confiscation proceedings by Collector affirmed by Excise

Commissioner, as also the order of revisional Court are per se illegal and bad in

law and are accordingly set aside.

(7) Since the petitioner has been acquitted of offence under Section 34(2) of

MP Excise Act passed by the Court of JMFC Orchha, in RCT No.269/2014 by

giving benefit of doubt, therefore, no case is made out for confiscation

proceedings of the said motorcycle and the application filed by petitioner under

Section 451/457 of CrPC to get the said motorcycle on interim custody also

stands allowed.

(8) Petition stands allowed to the extent indicated above.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.01.20 11:34:35 +05'30'