Umesh Kumar Modi vs State Of Madhya Pradesh

This petition has been filed under Section 482 Cr.P.C. seeking setting aside of impugned order dated 01.03.2019 passed by ASJ, Budhni, District Sehore in Criminal Revision No.31/2019; whereby, order passed by JMFC, Budhni, District Sehore dated 17.01.2019 on an application filed by the petitioner under Section 457 of Cr.P.C dismissing the application has been affirmed. Inter alia prayer is made to release the seized liquor on "Supurdginama".

Facts of the case, in brief, are that on 25th October, 2018 Police Station Shahganj during regular checking stopped vehicle bearing registration No.MP 09 GH 0243 wherein 200 cartoons of liquor was loaded. On enquiry it was found that though the driver was having the permit, however, he had changed the route which was prescribed. Consequently, accused-Driverwas arrested and liquor has been seized by the police and a case under the Excise Act has been registered.

Learned counsel for the petitioner has submitted that liquor which has been seized is owned by the petitioner and the same was being transported with due permission from the concerning authorities, however, the accused-driver of the vehicle had changed the route prescribed. Learned Court below has committed error of law in dismissing the revision filed by the petitioner as confiscation proceedings has been initiated after filing of application under Section 457 of CrPC for Supurdginama of the vehicle. It is further submitted that since confiscation proceedings were initiated after filing of application under Section 457 of CrPC, therefore, the impugned order is bad in law as the application has been dismissed solely on the ground of bar under Section 47-D of the Exicse Act which is not attracted unless intimation was received by the Court from the Collector. It is contended that under such circumstances, impugned order is liable to be set-aside and a prayer is made that the liquor may be released on Supurdginama.

Per contra, learned counsel appearing on behalf of the State has opposed the petition and prayed for its rejection.

Heard rival contentions of learned counsel for both the parties and perused the case diary.

Firstly, Section 47-A of the Madhya Pradesh Excise Act, 1915 is looked upon which provides for :

"47-A Confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance etc.-

(1) ...

(2) ...

(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."

Further, Section 47-D of the Act of 1915 provides for :

"47-D. Bar of jurisdiction of the Court under certain circumstances.- Notwithstanding anything to the contrary contained in the Act, or any other law for the time being in force, the Court having jurisdiction to try offences covered by clause (a) or (b) of sub-section (1) of Section 34 on account of which such seizure has been made, shall not make any order about the disposal, custody etc. of the intoxicants, articles, implements, utensils, materials, conveyance etc. seized after it has received from the Collector an intimation under clause (a) of sub-section (3) Section 47-A about the initiation of the proceedings for confiscation of seized property."

In Pratik Parik vs. State of M.P. 2010(1) MPLJ (cri.) 205, a Co-ordinate Bench of this Court has held that application for release of vehicle rejected on the ground that liquor seized from the vehicle was more than 50 bulk liters and the jurisdiction to pass an order of disposal of such property was barred under M. P. Excise Act. Bar under Section 47-D of the Act was not attracted unless intimation was received by the Court from the Collector.

In the present case there is nothing on record to show that the Collector had initiated confiscation proceedings and an intimation thereof was received by the learned JMFC while rejecting the application under Section 457 CrPC filed by the petitioner, therefore, keeping in view the facts and circumstance of the case and in view of the law laid down in Pratik Parik (supra), the present petition is allowed. Consequently, impugned order dated 01.03.2019 passed by ASJ, Budhni, District Sehore in Criminal Revision No.31/2019 as well as order passed by JMFC, Budhni, District Sehore dated 17.01.2019 are hereby set-aside.

It is directed that liquor seized in connection with Crime No.278/2018 be given to the petitioner on "Supurdginama" subject to production of documents regarding its ownership on the following terms and conditions :

(i) That, the petitioner shall furnish a personal bond in the sum of Rs.4,25,000/- (Rupees Four Lakhs Twenty Five Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court on an undertaking to produce the said liquor before the trial Court as and when required.

(ii) That, the petitioner shall get the liquor photographed. Such photographs shall be taken in presence of the responsible officer, who will be deputed by the trial Court and to be kept in the file of the case.

(iii) That the personal bond of the petitioner as well as surety shall carry the photographs of both and the bond of surety shall further carry the photograph of person identifying him before the Court which would be with full residential proof of the surety and the person indentifying him.

(iv) The petitioner shall undertake not to dispose of the said liquor in any manner.

(v) In the event of confiscation order by the competent authority or Collector, the petitioner shall keep the said liquor present positively for confiscation.

(vi) The petitioner is also directed to produce Bank Guarantee of Rs.4,25,000/- (Rupees Four Lakhs Twenty Five Thousand only) for two years before the concerned Court for aforesaid purpose.

Record of the trial Court be sent back forthwith.

The petition is allowed in above terms.

Certified copy as per rules.