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Madhya Pradesh High Court · body

2011 DIGILAW 1273 (MP)

Ashok Mishra v. State of M. P.

2011-11-11

SANJAY YADAV

body2011
ORDER 1. Order dated 2.08.2004 passed by Collector, Jabalpur, in exercise of his powers under section 47 A of Excise Act, 1915 (hereinafter referred to as 1915 Act') is being challenged in this petition. 2. By the said order vehicle hearing No. MP-07/HA/5230 has been confiscated. 3. The vehicle in question was seized on 19.4.2004, carrying 121 bulk liter of country liquor for violating provisions of section 34 (1) (a) and section 34 (2) of 1915 Act. An offence registered therefor vide crime No. 97/2004 is pending consideration. 4. The vehicle in question is owned by one Shri Haribabu Shivhare, a liquor contractor and the petitioner claiming himself to be his employee has filed this petition on the strength of the power of attorney. 5. Defence of the petitioner is that the liquor in question was transported from warehouse to the retail shop and there was no violation of any provisions of the 1915 Act. It is urged that, notice as is cotemplated under section 47-A (3) of 1915 Act was not issued, before passing an order of confiscation. It is accordingly urged that the order deserves to be quashed. 6. Regarding delay of 7 years in tiling this petition, an application is filed wherein it is stated that the delay is because the owner of the vehicle was not noticed, he was therefore not aware of the order dated 2.8.2004 which came to his knowledge in April 2010. 7. Regarding contention that the liquor was being transported from warehouse to the retail shop to Patan, no permit or authority letter or any other document as would substantiate the contention were placed before the concerning Authority. In absence whereof a bald statement has rightly been rejected by the Competent Authority. Before this Court, also the petitioner has not brought any material to justify the contentions that 121 liters of country liquor was carried under due authority, in absence whereof the contentions have no force. 8. Contention as to non service of notice. Sub-section (3) of section 47 A of 1915 Act provides that no order of confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance shall be made unless 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, convenyance, etc. Sub-section (3) of section 47 A of 1915 Act provides that no order of confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance shall be made unless 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, convenyance, 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, convenyance, 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 person 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. The impugned order records that notices were sent to Krishna Kumar Rathore and Bhola Singh from whose possession the intoxicants and conveyance was seized. In pursuance whereof they entered their appearnce. One of the accused Shri Krishna Kumar Rathore who appeared through his counsel also stated for taking the vehicle on supradnama on behalf of the owner i.e. Shri Haribabu Shivhare. It cannot therefore be said that the owner had no notice about the confiscation proceedings. Thus there is no force in the contention that the owner had no notice. 10. Regarding delay and laches. Apparently after seven years of the order dated 2.8.2004, the present writ petition is filed. In new Delhi Municipal Council v. Pan Singh and others: AIR 2007 SC 1365 , the Supreme Court has held that delay and laches are relevant factors for exercise of equitable jurisdiction. In Municipal Council Ahemdnagar v. Shah Hyder Beig : (2002) 2 SCC 48, the Supreme Court has observed that discretionary relief can be provided to one who has not by his act or conduct given a go-bye to his rights. For these reasons the petitioner has to be non suited. In the result petition fails and is hereby dismissed. T.K. Rohiwas for petitioner.