Mohd. Hussain vs The State Of Madhya Pradesh
2023 Latest Caselaw 12294 MP

                                                     1
                 IN       THE       HIGH COURT OF MADHYA PRADESH
                                          AT INDORE
                                                BEFORE
                                  HON'BLE SHRI JUSTICE PRANAY VERMA
                                        ON THE 2 nd OF AUGUST, 2023
                                     WRIT PETITION No. 17735 of 2023

               BETWEEN:-
               MOHD. HUSSAIN S/O NARU SHAH, AGED ABOUT 35
               YEARS, OCCUPATION: AGRICULTURIST HOUSE NO. 32,
               WARD NO. 11 RAMGARH MOTIPURA, DISTRICT
               MANDSAUR (MADHYA PRADESH)

                                                                                 .....PETITIONER
               (BY SHRI MUTAHIR AHMED KHAN - ADVOCATE)

               AND
               1.        THE STATE OF MADHYA PRADESH STATION
                         HOUSE OFFICER THROUGH POLICE STATION
                         NAHARGARH DISTRICT MADNSAUR (MADHYA
                         PRADESH)

               2.        POLICE   ADHIKSHAK MANDSAUR              (MADHYA
                         PRADESH)

               3.        COLLECTOR MANDSAUR (MADHYA PRADESH)

                                                                              .....RESPONDENTS
               (SHRI BHUWAN GAUTAM - G.A. FOR STATE)

                         T h is petition coming on admission this day, t h e cou rt passed the
              following:
                                                      ORDER

Heard.

2 . This petition under Article 226 of the Constitution of India has been filed by the petitioner being aggrieved by the order dated 14.11.2022 passed by Signature Not Verified the Collector, District Mandsaur under sub-Section 2 of Section 47(A) of the Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 8/2/2023 5:05:07 PM M.P. Excise Act, 1955 (hereinafter referred as 'the Act') whereby the vehicle

motorcycle Honda CD 110 bearing registration No.M.P.-14-MU-6993 owned by the present petitioner has been confiscated on account of involvement in the criminal case registered under Section 34 of the M.P. Excise Act.

3. The petitioner is being tried under Section 34 of the M.P. Excise Act by Judicial Magistrate First Class, Sitamau, District Mandsaur and upon receipt of an information the Collector initiated the proceedings under Section 47(A) of the Act. Since the liquor seized from the vehicle was 60 bulk litres, which is more than 50 litres, the Collector has passed the order of confiscation of the vehicle. Hence this petition has been filed solely on the ground that the Collector has no jurisdiction under sub-Section 2 of the Section 47 of the Act

to pass the order of confiscation of the vehicle during pendency of the trial.

4. Learned counsel for the petitioner has placed reliance on the judgments passed by the Coordinate Bench of this Court in M.Cr.C. No. 1296 of 2015 dated 13.07.2015; 2013(1) MPJR SN 10 Premdas V/s State of M.P. and W.P. 1037/2016 order dated 13-05-2016.

5. Learned Government Advocate for the State was directed to seek instructions in the matter.

6. I have heard the learned counsel for the parties.

7. It is correct that the confiscation proceeding were initiated under Section 47(A) of the Act during pendency of the trial, however, now the present petitioner has been acquitted vide judgment dated 07.10.2021 passed by the learned JMFC, Kukshi in RCT No. 200965/2015.

8. Section 47(A) of the Excise Act is reproduced below : "47-A. Confiscation of seized intoxicants, articles, implements, utensils, Signature Not Verified materials, conveyance etc. (1) Whenever any offence covered by clause (a) Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 8/2/2023 5:05:07 PM of (b) of sub-section (1) of Section 34 is committed and the quantity of liquor

found at the time or in the course of detection of offence exceeds fifty bulk litres, every office, empowered under Section 52, while seizing any intoxicants, articles, implements, utensils, materials, conveyance etc. under sub-section (2) of Section 34 or Section 52 of the Act, shall place on the property seized a mark indicating that the same has been so seized and shall without undue delay either produce the seized property before the officer not below the rank of District Excise Officer authorised by the State Government by a notification in this behalf (hereinafter referred to as the Authorised Officer), or where having regard to its quantity or bulk or any other genuine difficulty it is not ex-pedient to do so, make a report containing all the details about the seizure to him.

(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 fifty bulk litres he may, on the ground to be recorded in writing, order the confiscation of the intoxicants, 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. (3) No order under sub-section (2) shall be made unless the Collector has - Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 8/2/2023 (a) sent an intimation in a form prescribed by the Excise Commissioner 5:05:07 PM

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 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 sub -section (1) and to the person or persons who have been noticed under clause (b) a hearing."

9. This Court has repeatedly held that under sub-section 2 of Section 47(A), the Collector upon recording satisfaction that the offence is covered by Clause A or Clause B of sub-section 2 of the Act has been committed and where the quantity of liquor is found at the time or during the course of detection of such offence exceeds 50 bulk litres, he may on the ground to be recorded in writing, order the confiscation to intoxicants, articles, conveyance, etc.9. Since the word "offence has been committed" is used, therefore, the Collector cannot pass an order for confiscation during pendency of the trial. The vehicle can be confiscated either by a Magistrate while convicting the accused or after conviction under Section 47(A) of the Act.

10. Therefore, I have no reason to take a different view. The petition is allowed. The impugned order dated 14.11.2022 passed by the Collector, District Mandsaur is quashed. The vehicle motorcycle Honda CD 110 bearing Signature Not Verified registration No.M.P.-14-MU-6993be released. Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 8/2/2023 5:05:07 PM

11. Accordingly, the writ petition stands allowed and disposed off.

(PRANAY VERMA) JUDGE SS/-

Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 8/2/2023 5:05:07 PM