Madhya Pradesh High Court
Rakesh Choudhary vs The State Of Madhya Pradesh on 22 December, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 22 nd OF DECEMBER, 2023
MISC. PETITION No. 7539 of 2023
BETWEEN:-
RAKESH CHOUDHARY S/O PARASRAM @ RAMPRASAD
CHOUDHARY, AGED ABOUT 35 YEARS, OCCUPATION:
FARMER PANCHMUKHI POST TAKRAWADA, TEHSIL
BADNAWAR DIST. DHAR (MADHYA PRADESH)
.....PETITIONER
(SHRI SAARANSH JAIN- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR DHAR (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH SUB
INSPECTOR EXCISE DHAR (MADHYA PRADESH)
.....RESPONDENTS
(MS.BHARTI LAKKAD- GOVERNMENT ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
The present petition is filed under Article 227 of the Constitution of India
challenging the order dated 09.05.2023 passed by Collector, Dhar, whereby, the
order of confiscation of the vehicle bearing no. MP 11 CC 9133 has been
passed.
2. It is alleged that the aforesaid vehicle was involved for commission of
offence under section 34(2) and 34(1)(a) of MP Excise Act, 1915.
3. According to the prosecution story a vehicle bearing no. MP 11
CC 9133 (Maruti Suzuki Espresso) was alleged to have been illegally- carried 90
bulk litres of the country-made liquor. Thereafter, the respondent carried out the
investigation and seized the aforesaid contraband along with the aforesaid
vehicle and registered the case FIR bearing no 887/2022 for the offence
punishable under section 34(1)(a), 34(2) of MP Excise Act, 1915(Amendment
of 2000). Thereafter as per the provisions of the aforesaid Act, confiscation
proceedings have been initiated by the collector of Dhar, District Dhar - under
section 47(2) of the said Act.
4. Learned counsel for the petitioner submits that the petitioner is the
registered owner of the vehicle and also an accused in the criminal case and the
trial of the case is pending and therefore, the order of confiscation is contrary to
the provisions of section 47(a)(2) of the Act and also various judgments of this
court in the case of Bhaskar @ Balkishan Vs. State of MP and Ors passed in
WP No.28288/2023, Sheih Kalim vs. State of MP passed in M.Cr.C
No.1296/2015, Suresh vs. State of MP and Ors passed in WP
No.19528/2022, Aman Vs. State of MP and ors passed in WP
No.12666/2023 and Akash Raikwar Vs. State of MP and Ors passed in WP
No.18178/2023.
5. Learned counsel for the respondent/State raises preliminary objections
that against the order of confiscation remedy of appeal is available.
6. Per contra, learned counsel for the petitioner submitted that since the
impugned order is patently arbitrary and illegal, and therefore, there is no bar for
invoking writ jurisdiction under Article 227 of the Constitution of India in view
of the judgment passed in the case of Whirlpool Corporation vs Registrar Of
Trade Marks.
7. In the aforesaid cases, after considering the provisions of Section
47(A)(2) of the Excise Act, the Court held that the word used "an
offence has been committed" has to be interpreted that unless trial is concluded
and offence is proved in the trial under Section 34(2) under the M.P. Excise
Act, the order for confiscation cannot be passed.
8. The relevant provision under Section 47(A)(2) reads as under:-
(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.
9. The word "offence has been committed" used in the said sub- section
has rightly been interpreted by Coordinate Bench that the "offence has been
committed" is to mean that when the trial Court has recorded a finding that the
offence has been proved then the order of confiscation can be passed by the
Collector therefore it is held that till the trial is not concluded the Collector
cannot pass an order of confiscation.
10. In regard to maintainability of petition because of availability of
alternative remedy is concerned, the law is settled by the Supreme Court in the
case of Whirlpool Corporation V. Registrar of Trade Marks 1998 (8) SCC
1, where it has been held that if the order is patently illegal arbitrary and violative
of statutory provisions, there is no absolute bar for
exercising writ jurisdiction on account of availability of alternative remedy if the
order is without jurisdiction, arbitrary and in violation of statutory provision. In
view of the various orders passed by the Coordinate Bench and upon
consideration of the provision of Section 47(A)(2) of the M.P. Excise Act, it is
manifest that the impugned order has been passed contrary to the settled law
therefore objection regarding maintainability of petition on account of alternative
remedy is rejected.
11. In view of the aforesaid enunciation of law, it is held that the
Collector could not have passed order of confiscation till the trial is pending.
The judgment relied upon by the counsel for the respondent/state in the case of
Danish (supra) has been held to be per incuriam by this court in WP
No.28288/2023.
12. In view of the aforesaid enunciation of law, the impugned order dated
09.05.2022 passed by the District Magistrate, Dhar regarding confiscation of the
vehicle in question is quashed. It would be open for the petitioner to file an
application for custody of the vehicle in accordance with the law before the
Collector.
13. Accordingly, the petition is allowed and disposed off.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
