Madhya Pradesh High Court
Amit Shivhare S/O Shri Kedar Shivhare ... vs The State Of Madhya Pradesh on 1 October, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
NEUTRAL CITATION NO. 2024:MPHC-GWL:17366
1 MCRC-28268-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 1 st OF OCTOBER, 2024
MISC. CRIMINAL CASE No. 28268 of 2024
AMIT SHIVHARE S/O SHRI KEDAR SHIVHARE AGED 46 YEARS R/O
ANAND NAGAR GWALIOR CURRENT R/O GALI NO 26,
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Rajesh Kumar Shukla - Advocate for the petitioner.
Mr. K.S. Tomar - Public Prosecutor for respondent/State.
ORDER
The present petition u/S.482 of Cr.P.C. has been filed arising out of the order
dated 29.05.2024 passed by Second Additional Sessions Judge, Datia, District Datia in
Criminal Revision No.31/2024, confirming the order dated 06.05.2024 passed by Chief
Judicial Magistrate, Datia in Criminal Case No.154/2024 by which an application filed
by the petitioner under Section 451 and 457 of Cr.P.C was dismissed.
The facts in brief to decide this petition are that on 03.04.2024 police of police
station Indergarh, Datia upon the information intercepted the fort Ecosport Car bearing
Registration No.DL-12-CN-9369. Upon search, 20 cartons of illegal illicit liquor were
found without having any valid license. The vehicle and the liquor were seized and
case under Section 34(2) of Excise Act at Crime No.154/2024 was registered. After
investigation, charge-sheet has already been filed before CJM, Datia.
During course of trial, petitioner-Amit Shivhare is a registered owner of the
aforesaid vehicle filed an application under Sections 451-457 of Cr.PC. which was
dismissed vide order dated 06.05.2024 holding that the confiscation proceedings in
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respect to seized vehicle has been going on, therefore, the vehicle cannot be released
on interim custody (Supurdginama). The petitioner has challenged the order of CJM
before the Second Additional Sessions Judge, Datia by filing the revision petition
which was also dismissed vide order dated 29.05.2024.
Counsel for the petitioner argued that the impugned orders passed by the Courts
below are unjust arbitrary and bad in eyes of law. Further submission is that petitioner
is a valid owner of the aforesaid vehicle having all the requisite documents, however,
learned trial Court without considering the submission made by the petitioner rejected
the application. 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 General Insurance Council & Ors. Vs. State of A.P. & Ors.,
2010 AIR (SCW) 2967 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. Therefore, the impugned orders be set aside and the seized vehicle be handed
over to the petitioner.
On the other hand, learned counsel for the State argued that the vehicle was
seized while carrying illegal liquor. It has further submitted that according to the status
report of the case, confiscation proceeding of the vehicle is going on before the
competent authority i.e. Collector, District Datia. Therefore, the vehicle cannot be
given on temporary custody.
Heard and perused the record.
The petitioner has filed registration certificate of vehicle No.DL-12-CN-9369
(Annexure P/3) which proves that petitioner is a registered owner of the aforesaid
motorcycle. So far as, the question of initiation of confiscation proceedings is
concerned, the counsel for the petitioner filed a copy of order of the Co-ordinate Bench
of this Court in W.P. No. 11356 of 2024 (Ramlal Jhariya Vs. State of M.P. and
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Ors.) decided vide order dated 06.05.2024, wherein certain issues have been framed
and the matter has been referred to Hon'ble the Chief Justice for appropriate decision
for the constitution of a Larger Bench for adjudication of the points which reads as
under:-
"(A) Whether, any articles or vehicles can be confiscated under
Section 47(A) of the M.P. Excise Act, 1915 during the pendency of
criminal trial initiated against the offenders before the Judicial Courts?
(B) Whether, the dictum laid down by the Apex Court in the
matter of Madhukar Rao vs. State of M.P., (2008) 14 SCC 624 is
applicable to the cases registered under Section 34(2) and the
Confiscation proceedings under Section 47(A) of the Act, 1915?
(C) Whether, the confiscation proceedings can go on parallel to
the criminal proceedings and Collector can pass the order of
Confiscation irrespective to the pendency of criminal case?
(D) Whether, the Coordinate Benches were justified in delivering
the conflicting views without referring the matter under Chapter IV Rule
8(3) of the High Court Rules, 2008 and the conflicting view in the
absence of any reference can be considered as binding precedent, in
view of the doctrine of stare decisis?
(E) Whether, writ petition can be entertained against the order of
confiscation, in view of judgment of Apex Court in the matter of
Whirlpool Corporation vs. Registrar of Trade Marks, (1998) 8 SCC 1
and judgment of Division Bench of this Court in the matter of Alok
Kumar Choubey vs. State of M.P., (2021) 1 MPLJ 348, on the ground
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that Collector had no authority to pass any order of confiscation during
the pendency of criminal case?"
Undoubtedly, the issues involved in the case has been referred to the
Hon'ble Chief Justice for appropriate decision for constitution of a Larger Bench for
adjudication of the aforesaid points and the same will take time to decide the
controversy. The documents on record do not indicate that the Collector has sent
intimation under clause (a) sub section (3) of Section 47-A of Excise Act.
Therefore, in the light of law laid down by the Apex Court in the case of
Sunderbhai Ambala Desai (Supra) has held that i f the vehicle is allowed to be kept
in the police station for an indefinite period, then value of the vehicle shall be
diminished substantially and it may not remain in usable condition. In the above
circumstances, the prayer of the petitioner deserves to be allowed, therefore, this
Court deems it fit to release the vehicle on temporary/interim custody subject to
final outcome of the reference.
Consequently, the present petition is allowed. The impugned order dated
29.05.2024 passed by Second Additional Sessions Judge, Datia and order dated
06.05.2024 passed by the Chief Judicial Magistrate, Datia, are set aside and the
vehicle (Fort Ecosport Car) bearing Registration No. DL-12-CN-9369 is ordered
to be released on 'supurdaginama' in favour of the petitioner until the outcome of
the reference by Co-ordinate Bench of this Court on the following conditions:-
(a) the petitioner shall furnish a personal bond in the sum of Rs.10,00,000/-
(Rupees Ten Lacs only) with one solvent surety in the like amount to the
satisfaction of the trial court undertaking to produce the vehicle aforesaid in the
Court as and when required to do so.
(b) the petitioner shall get the vehicle aforesaid photographed showing the
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registration number as well as the chassis number. Such photograph shall be taken
in the presence of the Investigating Officer, to be kept on the file of the case.
(c) the petitioner shall undertake not to transfer the ownership of the vehicle
aforesaid and not to lease it to anyone and not to make or allow any changes in it
to be made so as to make unidentifiable.
(e) the petitioner will not allow the vehicle aforesaid to be used for any
antisocial activities including for the purpose of carrying liquor which may
constitute offence under the Excise Act.
(f) before releasing the vehicle the trial court shall verify the original documents
of the vehicle.
Certified copy as per Rules.
(SUNITA YADAV)
JUDGE
(LJ*)
