Anil Sikarwar vs The State Of Madhya Pradesh
2023 Latest Caselaw 17992 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                      BEFORE
                                         HON'BLE SMT. JUSTICE SUNITA YADAV
                                              ON THE 30 th OF OCTOBER, 2023
                                          MISC. CRIMINAL CASE No. 46454 of 2023

                           BETWEEN:-
                           ANIL SIKARWAR S/O SHRI RAMNATH SIKARWAR,
                           AGED ABOUT 25 YEARS, OCCUPATION: LABOUR
                           VILLAGE PADUAPURA TEHSIL PINAHAT DITRICT AGRA
                           (UTTAR PRADESH)

                                                                                          .....APPLICANT
                           (SHRI RAJMANI BANSAL, LEARNED COUNSEL FOR THE PETITIONER) .

                           AND
                           THE STATE OF MADHYA PRADESH INCHARGE POLICE
                           STATION THROUGH POLICE STATION CIVIL LINE
                           DISTRICT MORENA MP (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           ( SHRI DHEERAJ KUMAR BUDHOLIYA - P.L.- APPEARING ON BEHALF OF
                           ADVOCATE GENERAL).

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

The present petition under section 482 of Cr.P.C. has been filed for quashing of the order passed in Crime No.1076/2023 by Chief Judicial Magistrate, District Morena (M.P.) vide order dated 22/09/2023, whereby an application under Section 457 of Cr.P.C. filed by the petitioner for release of his vehicle bearing registration No. UP-80 FY 6320 has been dismissed.

The facts in brief to decide this petition are that on the report made by the complainant, an FIR has been registered at crime no.1076/2023 under Section 34(2) of MP Excise Act at Police Station City Civil Lines, District Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 31-10-2023 09:54:10 AM

Morena. As per the prosecution story, at the time of registration of the FIR, the present petitioner was carrying illegal liquor in his vehicle bearing registration No. UP-80 FY 6320 and the said vehicle was seized by the concerned Police. The petitioner moved an application under Section 457 of Cr.P.C. for releasing of the vehicle which was dismissed by the learned trial Court by impugned order. Learned counsel for the petitioner argued that the impugned order is against the settled principle of law as the trial court has ignored the fact that till today no confiscation proceeding has been initiated and the trial is still pending. Learned trial court has also not not verified the truth in respect to the alleged offence, therefore, impugned order be set aside and the seized vehicle

be handed over to the petitioner.

In support of his submission counsel for the petitioner has cited the judgment delivered in the case of Sundarbhai Ambala Desai vs. State of Gujarat, [(2002) 10 SCC 283] and has argued that the interim custody of the vehicle should have been given to the petitioner as there is danger of its being damaged by vagaries of weather.

On the other hand, learned counsel for the State argued that the vehicle was seized while carrying illegal liquor. It is further submitted that according to the status report of the case, report in respect to confiscation of the property has been sent to the competent authority. It is further argued that the forged identity card and other documents have already been seized. The confiscation proceeding is pending before competent authority and, therefore, the vehicle cannot be released on Supurdiginama.

Heard learned counsel for the rival parties and perused the material available on record.

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 31-10-2023 09:54:10 AM

For ready reference and convenience, the provisions of Section 47 and 47-A of M.P. Excise Act, 1915 is reads as under:

47. Order of confiscation.-- (1) Where in any case tried by him the Magistrate, decides that anything is liable to confiscation under Section 46, he shall order confiscation of the same:

Provided that where any intimation under clause (a) of sub-section (3) of Section 47-A has been received by the Magistrate, he shall not pass any order in regard to confiscation as aforesaid until the proceedings pending before the Collector under Section 47-A in respect of thing as aforesaid have been disposed of, and if the Collector has ordered confiscation of the same under sub-section (2) of Section 47-A, the Magistrate shall not pass any order in this regard.

(2) When an offence under this Act has been committed, but the offender is not known or cannot be found, the case shall be inquired into and determined by the Collector, who may order confiscation:

Provided that no such order shall he made until the expiration of one month from the date of seizing the thing intended to be confiscated, or without hearing any person who may claim any right thereto, and the evidence (if any) which he may produce in support of his claim:

Provided further that if the thing in question is liable to speedy and natural decay, or if the Collector is of opinion that the sale would be for the benefit of its owner, the Collector may at any time direct it to be sold; and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of such sale.

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, 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 Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 31-10-2023 09:54:10 AM

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 liters 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--

(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.

In the present case, there is nothing on record to show that the trial court has received the information in respect to the proceedings of confiscation of the seized vehicle. Learned trial Court has simply passed the impugned order in view of the fact that the seized vehicle is the subject matter of the evidence. No intimation from confiscating authorized officer has been received as per the above provisions at the time of passing the impugned order. Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 31-10-2023 09:54:10 AM

In the case of Sundarbhai Ambala Desai vs. State of Gujarat, [(2002) 10 SCC 283], the Apex Court has held that "it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time."

Consequently, the impugned order dated 22/09/2023 passed by learned trial Court is found to be against the settled principles of law and the same is hereby set aside.

Therefore, relying upon the judgment passed by the Apex Court quoted above and after taking into consideration submissions made by rival parties, it is directed that if the petitioner furnishes a personal bond in the sum of Rs. 5,00,000/- (Rupees Five Lakh Only) with one solvent surety in the like amount to the satisfaction of the trial Court/Magistrate concerned, then the possession of the said vehicle in question be given to the petitioner on supurdignama during pendency of trial subject to following conditions:-

(i) On verification of requisite documents pertaining to seized vehicle in question, the same shall be released and be handed over to the custody of petitioner on Supurdignama subject to confiscation proceedings;

(ii) Petitioner will not make any change in the appearance of the vehicle in question;

(iii) Petitioner shall not create third party rights over the vehicle in question;

(iv) Petitioner shall produce the vehicle before the trial Court/Magistrate, as and when demanded, on his own cost;

(v) It is made clear that after release of vehicle, if same nature of offence or any offence is committed by using this vehicle, the aforesaid supurdignama shall stand canceled and the bond shall be forfeited automatically without reference to this Court; and Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 31-10-2023 09:54:10 AM

(vi) This order shall remain in force till final disposal of the case pending before the trial Court/Magistrate and at the time of final disposal of the case, the trial Court/Magistrate will be at liberty to pass an appropriate order with regard to vehicle in question in accordance with law without getting influenced by this order, subject to confiscation proceedings, as per law

In the light of above terms, petition under Section 482 of Cr.P.C. is accordingly allowed and disposed of.

(SUNITA YADAV) JUDGE Durgekar

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 31-10-2023 09:54:10 AM