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Madhya Pradesh High Court · body

2016 DIGILAW 621 (MP)

Rajesh Kumar @ Pillu Patel v. State Of M. P.

2016-07-27

S.K.PALO

body2016
ORDER : Mr. A. D. Mishra, learned counsel for the petitioner. Ms. Puneet Shroti, learned penal lawyer for the respondent-State. Heard. 2. The brief facts, just necessary for disposal of this petition, are that the petitioner-Rajkumar @ Pillu Patel was arrested on 1-5-2013 in connection with Crime No. 142/2013 registered at Police Station- Bahoriband, District Katni for the offense under section 34(2) of Excise Act for allegedly possessing and transportation of illicit liquor, 495 pouches of country make and 91 pouches of English liquor, quantified as 105 liters. 3. After affording an opportunity to the petitioner, the District Magistrate, Katni vide order dated 2-9-2013 confiscated the vehicle which was used for transportation of illicit liquor, without having any valid licence. This order was challenged before the Commissioner, Jabalpur under section 47-B of Excise Act, 1915. The Commissioner, Jabalpur vide order dated 5-11-2013 affirmed the order passed the District Magistrate, Katni stating that the order passed by the District Magistrate does not suffer from any illegality and, therefore, no interference is called for. The petitioner preferred Criminal Revision No. 167/2014 before the 2nd Addl. Sessions Judge, Katni. The same was decided on 1-11-2014 by the learned Addl. Sessions Judge, the orders passed by the District Magistrate as well as the Commissioner, Jabalpur, were affirmed. Therefore, the present petition under section 482 of the Code of Criminal Procedure. 4. The petitioner contended that the revisional Court has wrongly dismissed the revision. Order of confiscation passed by the learned District Magistrate, Katni as well as that of Commissioner, Jabalpur is illegal, arbitrary and unconstitutional. It is also stated that the District Magistrate, Katni did not provide any opportunity of hearing to the petitioner, after issuing the show cause notice dated 15-5-2013. The respondent/State has not proved its case and therefore, the confiscation order is contrary to the provisions of law. Lodging the FIR, seized liquor as well as vehicle and confiscation thereof by the Police is without any authority and therefore the said order is not good in the eye of law. 5. It is pertinent to note that the District Magistrate, Katni issued notice to the petitioner on 14-5-2013 and the petitioner replied to the said notice which indicates that the petitioner has participated and was informed about the proceedings, before the confiscation was done and, therefore, section 47-A(3) of the M. P. Excise Act, 1915 was complied with. 5. It is pertinent to note that the District Magistrate, Katni issued notice to the petitioner on 14-5-2013 and the petitioner replied to the said notice which indicates that the petitioner has participated and was informed about the proceedings, before the confiscation was done and, therefore, section 47-A(3) of the M. P. Excise Act, 1915 was complied with. Reliance has been placed by the learned counsel for the petitioner in the cases of Narayan Sahu vs. State of M.P. (M.Cr.C. No. 10315/16) [reported in 2017(1) M.P.L.J. (Cri.) 17]; Dilip vs. State of M.P., 2012(1) M.P.L.J. 137 ; Paramjeet Singh vs. State of M.P., 1999 (I) MPWN 143 and Manoj Malu vs. State of M.P., 2002 (2) MPHT 150 . 6. Learned Panel Lawyer for the respondent/State has opposed the petition and submitted that the orders passed by the District Magistrate, Commissioner as well as the subsequent order passed by the learned Additional Sessions Judge in the revision, do not suffer from any irregularity or illegality and, therefore no interference is called for. 7. For better understanding of provisions of sections 47 and 47-A of the M.P. Excise Act, 1915 are reproduced : “41. 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 be 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) or (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 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 expedient 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. (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. (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.” 8. The words “an offence covered by clause (a) or clause (b) of sub-section (1) of section 34 has been committed” used in sub-section (2) of section 47-A indicate that the order of forfeiture can be passed when the Collector satisfies himself that offence covered by clause (a) or clause (b) of sub-section (1) of section 34 has been committed. In other words the forfeiture order can be passed only after conviction has been recorded by the trial Magistrate and not before that. 9. In other words the forfeiture order can be passed only after conviction has been recorded by the trial Magistrate and not before that. 9. In the case of Madhukar Rao vs. State of M.P., 2000(1) M.P.L.J. (F.B.) 289 the Full Bench of this Court has laid down the principle that once the criminal case was pending, confiscation proceedings should not be held and finalised. The judgment rendered by the Full Bench has been affirmed by the Supreme Court in the case of State of M.P. vs. Madhukar Rao, 2008(1) JLJ 427 and the Supreme Court has held that the provision of section 50 of the Wild Life (Protection) Act and the amendment made to the said Act do not in any way affect the powers of the Magistrate to pass interim order with regard to release of the vehicle and it is further held that when the criminal case is pending, final order with regard to confiscation of the vehicle should not be passed. This view is again reiterated by the Supreme Court in the case of Principal Chief Conservator of Forests vs. J. K. Johnson, AIR 2012 SC 61 and it has been held that the provisions of the Act do not permit specified officer to deal with the property seized for commission of the offence until and unless final decision in the criminal proceedings are not taken. 10. In view of the aforesaid, in the considered opinion of this Court, the impugned orders passed by the District Magistrate, Katni, Commissioner, Jabalpur directing confiscation and forfeiture of the vehicle and affirmation of the same are unsustainable and cannot be done until and unless the criminal proceeding is finalised. 11. In the present case, criminal proceeding is still pending [See: 2nd paragraph of the order dated 2-9-2013 and 3rd paragraph of the order dated 7-1-2014 and paragraph 5 of the order dated 1-11-2014]. Therefore, the impugned orders cannot be sustained. 12. Accordingly, this petition is allowed. Impugned order dated 2-9-2013 passed by the learned District Magistrate, order dated 7-1-2014 passed by the Commissioner, Jabalpur and the order dated 1-11-2014 passed by the 2nd Addl. Sessions Judge, Katni in Criminal Revision No. 167/2014, are quashed. As the vehicle in question is in custody of the State and possibility of vehicle to be destroyed, cannot be ruled out. Impugned order dated 2-9-2013 passed by the learned District Magistrate, order dated 7-1-2014 passed by the Commissioner, Jabalpur and the order dated 1-11-2014 passed by the 2nd Addl. Sessions Judge, Katni in Criminal Revision No. 167/2014, are quashed. As the vehicle in question is in custody of the State and possibility of vehicle to be destroyed, cannot be ruled out. Interest of justice requires that the custody of the vehicle be given to the owner on certain conditions. Therefore, the property is directed to be released to the petitioner upon verification of its ownership and on his execution a personal bond of Rs. 2,00,000/- (Rupees Two Lakhs only) with one surety in the like amount to the satisfaction of the trial Court with the following conditions : (1) The vehicle shall be produced before the trial Court or before the District Magistrate as and when directed; (2) The petitioner shall not alienate or part with the possession of the vehicle during the pendency of the proceeding for confiscation or criminal trial; (3) The external appearance of the vehicle shall not be changed in any manner so as to make it difficult to identify.