Naveen Kumar Manda vs State Of Chhattisgarh

Heard.

Petitioner has preferred this petition against the impugned order dated 02.12.2020 passed by 6th Additional Sessions Judge, Durg (C.G.), in Criminal

Revision No. 110/2020 whereby the learned Revisional Court has affirmed the order of Collector, Durg, dated 01.10.2020 ordering confiscation of

Bolero Camper (D.I. Pickup) bearing registration No. CG-04-JC-8950.

Brief facts of the case are that, the petitioner is the registered owner of the seized vehicle Bolero Camper bearing registration No. CG-04-JC-8950.

The said vehicle was given on booking to drop some hardware goods in Durg through the driver Laxmi Narayan Tondon. On 03.08.2020 the petitioner

came to know that the driver and his vehicle with documents has been seized in crime No. 514/2020 by Padmanabhpur Chowki, Police Station-Durg

for the offence punishable under Section 34(2) of the C.G. Excise Act, 1915. The said vehicle is alleged to have been found carrying 5.40 bulk liter of

country made liquor and the intimation was given to the petitioner by the police authorities Durg.

The petitioner on receiving show cause notice of confiscation issued by the Collector, on 11.09.2020 entered his appearance and submitted an

application for Supurdnama, but the application for Supurdnama was dismissed by the Collector vide order dated 01.10.2020. Being aggrieved of this

order petitioner has preferred a revision before learned Revisional Court in Criminal Revision No. 110/2020 whereas the Revisional Court has

affirmed the order of Collector, Durg, and rejected the revision application. Hence, this petition filed by the petitioner.

Learned counsel for the petitioner submits that petitioner is the legal owner of the vehicle and is entitled for the said vehicle. Learned Court below

has failed to consider the fact that it is of no used to keep such seized vehicle at the police station for a long period and could have passed appropriate

order immediately by taking bond and guarantee as well as security. He next submits that the vehicle was being plied and carrying the illegal

contraband without the knowledge of the petitioner. He further submits that as per Section 47-A(2) of the C.G. Excise Act very specifically hold that

firstly the Collector has to be satisfied that offence covered under the act has been committed and this satisfaction can only be reached after the order

of conviction by the trial Court. If in the event criminal case results in the acquittal of the accused, it would mean that an offence has not occurred and

therefore, under these circumstances initiation of confiscation proceedings prior to the conclusion of the criminal case would not be justified. He also

submits that the illegal act has been committed by the accused persons without the knowledge of the petitioner and he has no relation with the alleged

offence and behind his back the vehicle was used for commission of an offence by the accused persons. He lastly submits that the investigation is

being carried on by the respondent authorities and at this stage there is no requirement of the seized vehicle by them and if at any stage the same will

be required the petitioner is ready to produce the same. The petitioner is a bonafide owner of the vehicle, for his no fault and for wrong committed by

others he may not be penalized, therefore, the order passed by the revisional Court as well as by the Collector is liable to be set aside. In support of his

arguments he has placed reliance on the judgment of this Court in the matter of Smt. Roop Kumari Sidar Vs. State of Chhattisgarh passed in Cr.M.P.

No. 221/2016 vide order dated 24.06.2016.

The learned State counsel, opposing the petition and supported the orders passed by the Collector and Revisional Court.

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

It is clear from impugned order that criminal case under Section 34 of the C.G. Excise Act has been initiated against accused Laxmi Narayan

Tondon which is still pending before the learned Judicial Magistrate and the Collector had initiated the confiscation proceeding in respect of the said

vehicle and issued a notice to the accused on 07.09.2020 on which petitioner filed an application for Supurdnama of vehicle which was dismissed by

the Collector vide its order dated 01.10.2020.

In the matter of Smt. Roop Kumari Sidar vs. State of Chhattisgarh in Cr.M.P. No. 221/2016 vide order dated 24.06.2016 this Court has held in

paras 11-13 which reads thus :-

“11. So far as the law laid down by the Full Bench of MP High Court in Madhukar Rao (Supra) and which has also been affirmed by the Supreme

Court, the issue involved in the present case stands squarely decided when the Supreme Court in paragraph 16 of its judgment (State of Madhya

Pradesh Vs. Madhukar Rao) has held that “there may be a case where a vehicle was undeniably used for commission of an offence under the Act

but the vehicle's owner is in a position to show that it was used for committing the offence only after it was stolen from his possession. In that

situation, we are unable to see why the vehicle should not be released in the owner's favour during the pendency of the trialâ€​.

“12. Likewise, in paragraph 23 of the same judgment again it has been held that, “the provisions of Section 39(1)(d) would come into play only

after a court of competent jurisdiction found the accusation and the allegations made against the accused as true and recorded a finding that the seized

vehicle/article was, as a matter of fact, used in the commission of offence. Any attempt to operationalize Article 39(1)(d) of the Act merely on the

basis of seizure and accusations/allegations levelled by the departmental authorities would bring it into conflict with the constitutional provisions and

would render it to be invalid and unconstitutional.â€​

“13. Recently, similar issue though under the provision of Wild Life Protection Act, 1972, had crop up before the co-ordinate Bench of this Court in

Writ Petition (CR) No. 57 of 2014 and while deciding the same on 05.04.2016, the Hon'ble Judge relying upon the Full Bench judgment of MP High

Court in case of Madhukar Rao (Supra) and also judgment of Supreme Court (State of Madhya Pradesh Vs. Madhukar Rao) had taken a view that

the provisions of confiscation cannot be invoked in absence of finding by the criminal court that the concerned vehicle was being used for the

commission of the offence. The Bench of this Court has categorically held that the order of the specified officer confiscating the vehicle without

awaiting the decision of the competent criminal court about commission of the offence has also used the offending vehicle in the said offence is

without jurisdiction and without authority of law.â€​

In the instant case, it is not disputed that criminal case is still pending so this Court is also inclined to take the same view and reach to the conclusion

that in the absence of final adjudication in the criminal case initiated for the offence under Section 34 of the Excise Act firstly against the accused

person and secondly in respect of vehicle involved in the case, the initiation of confiscation proceeding by the Collector, Durg, on 28.08.2020 as also

the order of Revisional Court dated 02.12.2020 are per se illegal and bad in law and are accordingly set aside.

However, liberty is reserved in favour of the authorities concerned under the Excise Act to proceed for confiscation proceeding of the said vehicle

depending upon the result and outcome of the criminal case pending before the magistrate Court.

It is directed that the vehicle of the petitioner on the application of Supurdnama be released on the following conditions:-

(i) Proper security i.e. personal bond in the sum of Rs. 10,00,000/- and like sum of local surety be obtained before release of vehicle;

(ii) Before release of vehicle, proper panchnama be prepared;

(iii) Photographs of vehicle should be taken and bond should also be produced that the article would be produced if required at the time of trial;

(iv) Petitioner must satisfy the Court that he is the registered owner of the offending vehicle.

(v) Learned Collector is also free to impose some conditions if he thinks so.

The petition under Section 482 of Cr.P.C. is allowed to the above extent.