MP Excise Act | Can Vehicle Be Confiscated By Collector U/S 47(A) During Pendency Of Criminal Trial: MP High Court Refers Issue To Larger Bench

Noting that authorities cannot be allowed to take advantage of the conflicting judgments with regard to the confiscation of vehicles under the Madhya Pradesh Excise Act, the High Court has referred the matter to the Chief Justice for the constitution of a larger bench.

The single-judge bench of Justice Vinay Saraf observed that there is obscurity about the scope of Section 47(A). The primary question raised by Justice Saraf is regarding the powers of the Authorised Officer/District Collector to independently confiscate the articles/vehicles involved in the commission of the offence falling under Section 34(2) of the 1915 Act when criminal proceedings are pending. The legality of parallel proceedings in confiscation and criminal cases with reference to the Excise Act is also yet to be answered authoritatively, the court opined.

Determined to resolve the said anomaly, Justice Saraf has raised a few additional questions to be answered in reference:

1. Whether the decision in State of M.P. and others v. Madhukar Rao (2008) is applicable to confiscation proceedings under Section 47(A) of the Excise Act?
2. Whether a writ petition can be entertained against an order of confiscation by resorting to the grounds of lack of authority of the District Collector to pass such an order during the pendency of the criminal trial.

“In the present matter, the confiscating proceedings were initiated under Section 47-A of the Act during the pendency of the trial. However, the present petitioner is not accused in the criminal case…”, the bench sitting at Jabalpur initially noted.

The single-judge bench went on to distinguish the proceedings under Section 47A from that of Sections 46 [Liabality of certain things to confiscation] and 47[Order of Confiscation by Magistrate]. On the scope of Section 47, where the powers of the magistrate to confiscate is the subject matter, the court noted as below:

“…The Magistrate may pass order for confiscation at the time of passing the final judgment and if at the time of passing the final judgment, it is reported to the Magistrate that the article including the vehicle has already been confiscated by the Collector under Section 47 (A) (2), the Magistrate will not pass any order of confiscation…”

What follows from a discussion of the relevant provisions would be that the collector is empowered to carry on with the confiscation proceedings simultaneously with the criminal proceedings; the court underscored its take on the contentious matter.

“…The embargo is in respect of exercise of powers under Section 46 and 47 of the Act, 1915 to wait till the final decision of criminal trial but no such embargo is there in respect of Section 47-A of the Act….Collector is not under obligation to wait till final disposal of criminal case before passing order of confiscation.” the court clarified its stance by opining that the judgment rendered by the Supreme Court in State of M.P. and others v. Madhukar Rao (2008) is not applicable to confiscation proceedings under the Excise Act. In Madhukar Rao, the relevant statute was the Wildlife Protection Act.

Since there were conflicting views made by the coordinate benches of the same strength without analysing the reasons assigned in other decisions, Justice Vinay Saraf considered it appropriate to make a reference to the Chief Justice with a request for the constitution of a larger bench, which would, in turn, deliver a binding precedent.

Background

The petitioner preferred the writ, aggrieved by the action of Narsinghpur District Collector, who ordered the confiscation of the former's Bolero jeep under Section 47(A)(2) of the M.P Excise Act, 1915. The major contention of the petitioner was that any order of confiscation passed during the pendency of criminal proceedings under Section 34(2) of the 1915 Act was devoid of any jurisdiction.

Section 34 talks about the offences of unlawful manufacture, transport, possession, sale etc of the contraband, and Section 47-A speaks about confiscation of seized intoxicants, articles, implements, utensils, materials conveyance etc.

In January 2023, a police team seized 35 crates(315 litres)of illicit liquor from the Bolero Jeep which was later ordered to be confiscated. Suatala Police Station registered Crime No.34/2023 offence under Section 34(2) against certain persons, including the driver of the vehicle. However, the police did not arraign the petitioner in the charge sheet. After the Collector issued notices in the confiscation case, the petitioner replied that the vehicle in question was utilised for the commission of the crime without his knowledge since the vehicle was given by him to the other respondents on rent.

Petitioner's Arguments

The counsel for the petitioner relied on the judgment in the State of M.P. and others v. Madhukar Rao, where the apex court, regarding Section 39(1)(d) of the Wildlife Protection Act, held that confiscation of articles/vehicles could not be permitted until criminal trial for the offence committed results in a conviction. In Madhukar, the court noted that it is only reasonable for the magistrate to release the vehicle on an interim basis in instances where the owner was unaware of the commission of the offence using his vehicle, even if there is no dispute regarding the involvement of the said vehicle in the crime.

It is pertinent to note that the co-ordinate benches of the Madhya Pradesh High Court have followed the dictum laid down in Madhukar Rao in cases wherein the application of Section 47(A)(2) has been analysed. These cases include Suresh v. State of M.P(2022), Bhaskar @ Balkishan Sonone v. State of M.P. & Ors. (2023) and Pankesh v. The Collector & Ors. (2023).

In these cases, Section 47(A)(2) has been interpreted in such a manner that the order of confiscation can be passed only when a conviction is recorded by the court concerned for offences covered under Clause A or B of sub-section 2 of Section 34.

State's Arguments

Co-ordinate single judge benches of the High Court have held that criminal proceedings and confiscation proceedings can move forward parallelly, the government advocate submitted by relying on State of M.P. v. Kallo Bai, 2017 (14) SCC 50 where the governing statute was the Forest Act. Therein, apex court had held that confiscation proceedings are distinct and independent from criminal proceedings. This dictum that confiscation proceedings are quasi-judicial in nature has been followed by the coordinate benches of the High Court in many excise cases like Madduri Nagendra v. State of M.P. & Ors. (2023) and Radha Gupta vs. State of M.P. & Ors., argued the counsel.

Court's Order

Considering the conflicting judgments made by the coordinate benches of the same strength, the court deemed it fit to grant interim relief to the petitioner by ordering the release of the vehicle on supurdginama.

“…Upon furnishing the suprudginama and security, the vehicle will be released on the terms, which will be decided by the Collector, District Narsinghpur. This interim order shall remain in force, till disposal of this petition..”, the court noted in the order.

Counsels for the Petitioner: Advocates Jayant Neekhra and Sanjeev Neekhra

Counsel For Respondents: Advocate V.P. Tiwari

Case Name: Ramlal Jhariya v. State Of M.P. And Other

Case No: WP No. 11356 of 2024

Citation: 2024 LiveLaw (MP) 125

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