Ashok Shivhare vs The State Of Madhya Pradesh
2022 Latest Caselaw 12491 MP

                            1
         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                            BEFORE
               HON'BLE SHRI JUSTICE ROHIT ARYA
                               &
          HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                  ON THE 19th OF SEPTEMBER, 2022

                 WRIT APPEAL No. 172 of 2021

      BETWEEN:-
      ASHOK SHIVHARE S/O SHRI DHANIRAM
      SHIVHARE, AGED 50 YEARS, OCCUPATION:
      SELF EMPLOYED, R/O BADODA, TAHSIL
      BADODA, DISTRICT SHOEPUR (MADHYA
      PRADESH)
      AT PRESENT RESIDING AT CHANDRABADNI KA
      NAKA,   DISTRICT    GWALIOR   (MADHYA
      PRADESH)

                                                     .....APPELLANT
      (BY SHRI SAMEER KUMAR SHRIVASTAVA - ADVOCATE)

      AND
1.    STATE OF MADHYA PRADESH THROUGH
      PRINCIPAL SECRETARY, DEPARTMENT OF
      COMMERCIAL TAX, VALLABH BHAWAN,
      BHOPAL (MADHYA PRADESH)

2.    THE ADDITIONAL EXCISE COMMISSIONER,
      MADHYA PRADESH, MOTI MAHAL, GWALIOR
      (MADHYA PRADESH)

3.    THE   COLLECTOR,   SHEOPUR,      DISTRICT
      SHEOPUR (MADHYA PRADESH)

4.    DISTRICT   EXCISE  OFFICER,  SHEOPUR,
      DISTRICT SHEOPUR MADHYA PRADESH)

5.    BAN SINGH YADAV, A.S.I. THROUGH STATION
      HOUSE OFFICER, AWADA, DISTRICT SHEOPUR
      (MADHYA PRADESH)

                                                   .....RESPONDENTS
      (BY SHRI ANKUR MODY - ADDITIONAL ADVOCATE GENERAL)

     Th is appeal coming on for admission this day, JUSTICE ROHIT
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ARYA passed the following:
                                     ORDER

T h is writ appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 21.01.2021 passed in Writ Petition No. 8412/2020 (Annexure A/1).

The Writ Court declined to interfere in the order of confiscation of the vehicle bearing registration No. MP33C-4862 passed by the Collector, Sheopur on 07.06.2017 and confirmed by the Appellate Authority vide order dated 20.03.2020, in exercise of powers under Article 226 of the Constitution of

India, with the observation that as per the documents on record, the driver of the offending vehicle could not produce the transit pass/legal documents for transportation of 362.2 bulk litres of English liquor.

Besides, the Writ Court also observed that after dismissal of the appeal the owner did not surrender the vehicle. Therefore, he has been directed to deposit cost/value of the vehicle as mentioned in the purchase receipt within thirty days. Failure to comply with the order shall lead suo motu contempt proceedings against the petitioner/ appellant.

Shri Sameer Kumar Shrivastava, learned counsel for the appellant submits that in Criminal Case No.501105/2015 the appellant stands acquitted as the prosecution failed to prove beyond reasonable doubt the alleged transportation of 362.2 bulk litres of English liquor in the offending vehicle bearing registration No. MP33C-4862 without transit pass/legal documents.

It is submitted that the judgment of the trial Court is dated 21.01.2021. The impugned order in this case is also of the same date, i.e., 21.01.2021. The judgment of acquittal, therefore, was not before the learned Single Judge.

Learned counsel also submits that though proceedings under Section 47- A of MP Excise Act for confiscation of the vehicle and the criminal trial for the alleged offence are two separate and independent proceedings, nevertheless arise from same Crime Case No. 20/2015 registered at Police Station Awada, District Sheopur. He further submits that the proceedings for confiscation are based on alleged seizure memo and the statements recorded during the course of investigation whereas criminal trial commenced after submission of final report/challan and thereafter based on oral and documentary evidence placed before the Court. In the instant case the appellant stands acquitted of the offence as alleged in the said crime case. As a consequence of acquittal the finding of the confiscating authority pales into insignificance. Consequently the order of the appellate authority also is of no consequence. In the obtaining facts and circumstances while the order of acquittal was not before the learned Single Judge, this Court may consider to direct the Collector, District Sheopur to decide the question of confiscation of the vehicle afresh bearing in mind the findings and conclusions of the trial Court acquitting the appellant of the charges levelled.

Per Contra, Shri Ankur Mody, learned Additional Advocate General, though opposed the prayer with the submission that quality of evidence and degree of proof required for confiscation proceedings are altogether different

from that of a criminal trial and both proceedings are independent in nature. Hence, no indulgence is warranted in the order of confiscation of vehicle as well as the appellate order, as the same are based on evidence on record. However, he does not dispute that both proceedings, i.e., confiscation proceedings and criminal trial commenced with the registration of common Crime Case No. 20/2015. He also does not dispute that the prosecution failed to prove the

allegation of illegal transportation of 362.2 bulk litres of English liquor in the offending vehicle bearing registration No.MP33C-4862 beyond reasonable doubt.

In our considered opinion, under such circumstances it shall be appropriate to set aside the impugned order dated 21.01.2021 (Annexure A/1) passed in Writ Petition No. 8412/2020 and remit the case before the Collector, District Sheopur to consider the application of the appellant for release of the vehicle No. MP33C-4862 based on the judgment of acquittal dated 21.01.2021. Hence, the order of confiscation dated 07.06.2017 passed by Collector, District Sheopur and the order of appellate authority dated 20.03.2020 are hereby set aside.

Writ Appeal stands disposed of.

  (ROHIT ARYA)                                   (MILIND RAMESH PHADKE)
     JUDGE                                                JUDGE
yog




                            YOGESH
                            VERMA
                            2022.09.20
         VALSALA
         VASUDEVAN
         2018.10.26
         15:14:29 -07'00'
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