Suresh vs The State Of Madhya Pradesh
2023 Latest Caselaw 7735 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                 ON THE 11 th OF MAY, 2023
                                             WRIT PETITION No. 19528 of 2022

                          BETWEEN:-
                          SURESH S/O MUKAMSINGH ALAWA BHILALA, AGED
                          ABOUT 35 YEARS, OCCUPATION: BUSINESS KHARI P.S.
                          NANPUR DISTRICT ALIRAJPUR (MADHYA PRADESH)

                                                                                          .....PETITIONER
                          (SHRI MOHAMMAD IKRAM ANSARI, ADVOCATE FOR THE PETITIONER).

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

                          2.    SUPERINTENDENT OF POLICE DHAR (MADHYA
                                PRADESH)

                          3.    COLLECTOR DHAR (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          (SHRI BHUWAN DESHMUKH, GOVERNMENT ADVOCATE FOR THE
                          STATE).

                                This petition coming on for admission this day, th e court passed the
                          following:
                                                             ORDER

This petition under Article 226 of the Constitution of India has been filed by the petitioner being aggrieved by the order dated 17.01.2019 passed by the Collector, District Dhar under sub-section 2 of Section 47(A) of the MP Excise Act, 1915 (hereinafter referred to as 'the Act') whereby the vehicle-Bolero bearing registration No. MP 69 B 0174 owned by the present petitioner has

Signature Not Verified Signed by: SREEVIDYA Signing time: 5/11/2023 4:48:35 PM

been confiscated on account of involvement in a criminal case registered under Section 34 of the MP Excise Act.

2. The petitioner was tried under Section 34 of the Act by the Judicial Magistrate First Class, Kukshi, District Dhar and upon receipt of information, the Collector initiated the proceeding under Section Section 47(A) of the Act. Since, the liquor seized from the vehicle was 930.6 bulk litres which is more than 50 litres, the Collector has passed an order of confiscation of the vehicle. Hence, this petition is filed solely on the ground that the Collector has no jurisdiction under sub-section 2 of Section 47 of the Act to pass an order of confiscation of the vehicle during pendency of the trial.

3. 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.

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

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

6. 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.

7. Section 47(A) of the Excise Act is reproduced below :

"47-A. Confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance etc. (1) Whenever any offence covered by clause (a) 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, Signature Not Verified Signed by: SREEVIDYA Signing time: 5/11/2023 4:48:35 PM

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 e tc. 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 hasâ€Â"

(a) sent an intimation in a form prescribed by the Excise Commissioner 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."

8. 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 Signature Not Verified Signed by: SREEVIDYA Signing time: 5/11/2023 4:48:35 PM

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 17.01.2019 passed by the Collector, District Dhar is quashed. The vehicle Bolero bearing registration No. MP 69B 0174 be released.

11. Accordingly, the writ petition stands disposed of.

(VIVEK RUSIA) JUDGE vidya

Signature Not Verified Signed by: SREEVIDYA Signing time: 5/11/2023 4:48:35 PM