AI Structured Summary
Not yet generated for this judgment
Judgment
Sanjay Yadav, J.—The Petitioner, a manufacturer of Foreign Liquor and having a bottling plant at village Sejwaya, District Dhar, named and styled as M/s. Great Galeon Limited being aggrieved of the orders dated 9.5.2008, 2.9.2008 and 30.8.2008 has filed this petition under Article 226 of the Constitution of India seeking the quashment of these orders.
By order dated 9.5.2008 (Annexure P-7) and 2.9.2008 the Respondents No. 2 and 3 declined the request of the Petitioner to sell 572 boxes of foreign liquor seized by Police Station Rahatgarh and given on Supradnama to the Petitioner who deposited the same in the Government Foreign Liquor Warehouse, Sagar, as per order dated 5.5.2008, passed by Sixth Additional Sessions Judge, Fast . Track Court, Sagar, in Criminal Revision No. 28/2008. Whereas, by order dated 30.8.2008, Collector, Sagar in an Excise Case No. 373-B/121/07-8 directed the confiscation and sale of seized 562 boxes of foreign liquor and deposit of sale proceeds in Government Treasury.
The relevant facts briefly are that, the Petitioner was accorded a transport permit for transportation of 4932.0 bulk liter/3690 proof liters of Indian made foreign liquor from Sejwaya to foreign liquor Warehouse, Sagar on the conditions that, the consignment shall not be broken in transit and shall be routed to the destination via Ghata Billod-Prethampur-Dhar-Indore-Bhopal-Raisen to Sagar. The said consignment was transported through vehicle No. MP.09/KA-5025. The conditions stipulated in the transport permit was violated, i.e., the route which the vehicle was supposed to follow was deviated from, and the vehicle with the consignment was seized on 27.4.2008 at Police Station, Rahatgarh. An offence u/s 34(1)(a), 34(2) of the Excise Act, 1915 under Crime No. 183/2008 was registered and the driver of the vehicle arrested. An application for Supradanama of seized material, i.e., 562 boxes of crime and the vehicle filed on behalf of the Petitioner before judicial Magistrate Class I, Sagar, who rejected by order dated 30.4.2008; however, in a criminal revision preferred by the Petitioner following order was passed:
16 iqujh{k.kdrkZx.k dh vksj ls izLrqr dh xbZ nksuksa iqujh{k.k ;kfpdk,a Lohdkj djurs gq, ;g vkns''k fn;k tkrk gS fd % &
�1� iquuh{k.kdrkZ ;kfpdk �ekad 98@08 dk vkosnd iqujh{k.kdrkZ mls lqiqnZxh ij nh xbZ vaxzth ''kjkc dks Fkkus ls iqiqnZukek ij izkkIr gksus ds ckn 24 ?kaVs ds vanj �kldh; os;jgkml lkxj eas tek djus dh ''kZr ij fo}ku U;kf;d eftLVs�V izFke Js.kh lkxj �dq- dfork ekFkqj� dh larqf"V ;ksX; 5]00]000@& ikap yk[k #i;s dh tekur vkSj bruh gh jkf� dh lqiqnZukek is� djus ij mls lqiqnxh ij nh tkos A lqiqnZxh ij ikIr gksus ds 24 ?kaVs ds vanj os;jgkml lkxj esa vaxzsth �jkc tek djds jlhn U;k;ky; ds le{k izLrqr djsxk] pwd djus dh n�k esa lqinZukek vkns� fu"izHkkoh ekuk tkosxk A ikorh jlhn lqiqnZdkj fopkj.k U;k;ky; esa o bl U;k;ky; eas is� djsxk vkSj izdj.k ds vafre fujkdj.k ds le; ;fn tIr�qnk �jkc ds ckjs esa U;k;ky; }kjk dksbZ gdnkj O;fDr ds i{k eas vkns� ikfjr fd;k tkrk gS rks �jkc ds ewY; ds cjkcj ikap yk[k dh lhek rd jkf� U;k;ky; ds }kjk gdnkj O;fDr dks vnk djsaxs A mDr �rksZ ds v/khu lqiqnZukek dk oa tekur dh tkos rks tIr�qnk �jkc iqujh{k.kdrkZ th- ds- f=ikBh }kjk eq[r;kj [kkl xzsV fxfy;u daiuh Hkstokdj ftyk /kkj dks varfje lqiqnZxh eas nh tkos A
The aforesaid order was passed on the anvil of the following findings, recorded in paragraph12:
12 dsl Mk;jh esa V�d ds dkxtkr jftLVj izek.ki= ds vk/kkj ij vkosnd lkSnku flag vfgjokj tIr�q/kk V�d dk jft- LFkk;h gS tks �jkc V�d esa Hkjdj ykbZ tk jgh Fkh og mlds Lda/k eas fxysfou fy- daiuh ls tokj ftyk /kkj esa QkeZ ,Q ,Q 14 V�kaliksVZ ijfe �ekad 14-4-2008 dks tkjh fd;k x;k gS ftlds vuqlkj fnukad 28-4-2008 rd 4%15 cts lqcg rd mDr �jkc lkxj os;j gkml ds fy, ys tkus ckcr ijfeV esa vkosnd th- ds- f=ikBh dh xzsfy;u daiuh dks vf/kd`r fd;k x;k gS xzsV xsys;u daiuh dh vksj ls buokbl tkjh dj �kldh; Qkjsu fydj ds os;j gkml lkxj esa mDr �jkc Hksts tkus ds fy, buokbl tkjh dh xZ gS A mDr nLrkost buokbl ,oa ijfeV v uqla/kku ds nkSjku Fkkuk jkgrx<+ dh vksj ls tIr fd, tk pqds gSa A l izdkj tks �jkc tIr dh xbZ gS] mlds ifjogu egkdy V�kaliksVZ ds V�d �ekad ,e ih 09@ds ,a 5025 ftldk jft- Lokeh vkosnd lkSnku flag gS fd V�d esa Hkjdj /kkj ls vaxzsth �jkc lkxj os;j gkml ds fy, ys tkbZ tk jgh Fkh] ftlds ijfeV dk :V ihFkeiqj] bankSj] nsokl] Hkksiky] jk;lsu ls gksdj lkxj ds fy, tkjh fd; x;k gksus dk mYys[k ijfeV esa gSA bl izdkj ijfe esa fn, x, :I esa fMoh;V djds fofn�k dh rjQ ls �jkc dk ifjogu fd;k tk jgs gksus dk vfHk;kstu dk ekeyk gS tks ijfeV ds :i ds �rksZ ds mYya?ku ds laca/k esa gS A mDr �jkc xzsV xsfy;u daiuih dh vksj ls �kldh; os;j gkml esa tek djus ys tkbZ tk jgh gS A ,slh n�k esa tIr�qnk vaxszth �jkc vkosnd xzsV xsfy;u daiuh ds vf/kiR; dh jgh gksuk Li"V gksrh gS A tIr�qnk �jkc ds laca/k esa iqfyl Fkkuk jkgrx<+ dh vksj ls ntZ dh xbZ vkijkf/kd izdj.k ds laca/k esa dyDVj dks lwpuk Hksth tk pqdh gS fdUrq dyDVj lkxj dh vksj ls tIr�qnk �jkc ,oa V�d d sjktlkr fd, tkus ds laca/k esa dksbZ dk;Zokgh dh tk jgh gksus ls lwpuk lacaf/kr eftLV�sV dks izkIr gqZ gksuk fjek.M isilZ ds voyksdu ls Li"V ugha gksrk gS vkSj u gh ,sls dksZ nLrkost dsl Mk;jh ds laxXu gS ftlds vk/kkj ij ;g ekuk tk ldrk gS fd tIr�qnk �jkc ds jktlkr fd, tkus dh dk;Zokgh izkjaHk dh tk pqdh gSA /kkjk 451 naM izf�;k lafgrk ds izko/kku ds v/khu tIr�qnk V�d ,oa vaxszth �jkc dks varfje lqiqnZxh esa nsus dh U;k;ky; dh vf/kdkfjrk izkIr gSA esjk ;g er U;k;n`"Vkar lqjs� fo- LVsV vkWQ ,e ih �2003 , ts ts 638� esa izfrikfnr fof/k fl)kar ij vk/kkfjr gSA
The Petitioner on complying the directions given in the order dated 30.4.2008, approached the authorities to seek sale of said liquor. The request was turned down on the ground that there was no direction by the Court of sale. The Petitioner, therefore, again filed an application for sale of liquor deposited with the Government ware house, this application was rejected by the Chief Judicial Magistrate, Sagar, by order dated 19.6.2008. This order was affirmed in the Criminal Revision No. 128/2008. This Revisional Court however, observed in paragraph of order dated 22.7.2008:
11- tIr�qnk vaxzsth �jkc ds fo�; ds laca/k esa vkcdkjh foHkkx lkxj fof/k ,oa fu;ekuqlkj dk;Zokgh dj ldrk gS A mDr tIr�qnk �jkc ds laca/k esa fo�; djk, tkus dk dksbZ gd ;k ik=rk vkosnd @ iqujh{k.kdrkZ dks gksuk izrhr gksrh gSA tgka rd iqujh{k.kdrkZ }kjk tek djkbZ xbZ �jkc ds fo�; ls mls vkcdkjh foHkkx ls feyus okyh jkf� dk iz''u gS bl laca/k esa vkosnd @ iqujh{k.kdrkZ vkcdkjh foHkkx ds fo#) bl laca/k esa ;ksX; ,oa oS/kkfud dk;Zokgh dj ldrk gS blfy, iqujh{k.kdrkZ dh izkFkZuk ds vk/kkj ij �jkc fof�; djus dh vuqefr ugha fn, tkus ds fo}ku eq[; U;kf;d eftLV�sV lkxj }kjk ikfjr fd, x, vkysP; vkns� esa dksbZ {ks=kf/kdkfjrk dk vHkko gksuk ;k vkSfpR;rk dk vHkko gksuk ugha ik;k tkrk gSA
Relying upon, the aforesaid observation, Petitioner approached the Respondents requesting them to sell liquor, which was turned down by the impugned order dated 9.5.2008 and 2.9.2008.
That in the meantime, Collector, Sagar on the basis of information received vide Superintendent of Police, Sagar, letter dated 30.4.2008, initiated a proceeding for confiscation of the seized article and the intoxicants vide Excise Case No. 373-B/121/07-8 and passed an order of confiscation dated 30.8.2008. This order is also being challenged on the ground that same has been passed without affording an opportunity of hearing.
After hearing the parties, the issue which crops up for consideation is whether in view of the offence being committed by the Petitioner, which is punishable u/s 34 of the Excise Act, 1915, the Petitioner will be entitled for the direction to Excise authorities to sell the liquor in question and whether there is any violation of the provisions contained u/s 47A of the M.P. Excise Act, 1915.
For a proper appreciation the relevant provisions may be noted.
Section 34 of the Act of 1915 provides for:
Penalty for unlawful manufacture, transport, possession, sale-etc. - (1) Whoever, in contravention of any provisions of this Act, or of any rule, notification or order made or issued thereunder, or of any condition of a licence, permit or pass granted under this Act,
(a) manufacture, transports, imports, exports, collects or possesses any intoxicant;
(b) save in the cases provided for in Section 38, sells any intoxicant, or
(c) cultivates bhang; or
(d) taps any toddy production tree/or draws toddy therefrom; or
(e) constructs, or works any distillery, brewery or vintnery; or
(f)uses, keeps or has in his possession any material, still utensil, implement or apparatus, whatsoever, for the purpose of manufcturing any intoxicant other than toddy; or
(g) removes any intoxicant from any distillery; brewery, vitnery or ware house licensed, established or contained, under this Act;
(h) Bottles any liquor;
shall subject to the provisions of Sub-section (2) be punishable for every such offence with imprisonment for a term which may extend to one year and fine which shall be not less than five hundred rupees but which may extend to five thousand ruppees:
Provided that when any person is convicted under this section of any offence for a second or subsequent time he shall be punishable for every such offence with imprisonment for a term which shall not be less than two months but which may extend to twenty four months and fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees.
(2) Notwithstanding anything contained in Sub-section (1), if a person is convicted for an offence covered by Clause (a) or Clause (b) of Sub-section (1) and the quantity of the intoxicant being liquor found at the time or in course of detection of the offence exceeds fifty bulk liter, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees:
Provided that when any person is convicted under this sectin for an offence for second or subsequent time, he shall be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than fifty thousand rupees but may extend to two lac rupees.
(3) When an offence covered by Clause (a) or Clause (b) of Sub-section (1) if committed and the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk liters, all intoxicants, articles, implements, utensils, materials, conveyance etc. in respect of or by means of which the offence is committed, shall be liable to be seized and confiscated. If such an offence is committed by or on behalf of a person who holds a licence under the Act for manufacturing or stocking or storing liquor for sale on which duty at the prescribed rate has not been paid then notwithstanding anything contained in Section 31 the licence granted to then shall be cancelled in case he is convicted for the offence as aforesaid.
(4) The seizure or confiscation of the intoxicants, articles, implements utensils, matrials and conveyance and the cancellation of licence as provided under Sub-section (2) above shall be in addition and without prejudice to any other action that may be taken under any provisions of the Act or rules made thereunder.
Section 46 of the Act of 1915 stipulates:
Liability of certain things to confiscation.-- (1) Whenever an offence has been committed which is punishable under this Act, the intoxicant, materials, still, utensils, implements or apparatus in respect of or by means of which such offence has been committed, and the receptacles, packages and coverings in which any such intoxicant materials, still, utensils, implements or apparatus is or are found, and the other contents, if any, of the receptacles or packages in which the same is or are found, and the animals carts, vessels, rafts or other conveyance used in carrying the same shall be liable to confiscation.
(2) Any intoxicant lawfully imported, transported, manufactured, held in possession or sold alongwith, or in addition to any intoxicant liable to confiscation under Sub-section (1), and the receptacles, packages and coverings in which any such intoxicant, materials, still, utensils, implements or apparatus as aforesaid is or are found, and the other contents, if any, of the receptacles or packages in which the same is or are found, and the animals, carts, vessels, rafts or other conveyance used in carrying the same, shall likewise be liable to confiscation.
Whereas Section 47-A deals with confiscation of seized intoxicants in the following terms:
47-A. Confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance, etc. - (1) Whenever any offence covered by Clause (a) or (b) 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 officer empowered u/s 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 and shall without undue delay either produce the 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.
In the case at hand, the fact reveals that, there is a contravention of the condition stipulated in the transport permit regarding the route which the vehicle was to take. Sub-section (3) of Section 34 stipulates that when an offence covered by Clause (a) or Clause (b) of Sub-section (1) if committed and the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk liters, all intoxicants, article implements, utensils, materials conveyance etc., in respect of or by means of which the offence is committed, shall be liable to be seized to be confiscated. Thus, the seized intoxicants, i.e., 562 boxes of wine and the vehicle in question has been subjected to confiscation and in the event of such happenings the Respondents cannot be directed to sell of the liquor at the instance of the Petitioner. No relief, therefore, can be granted to the Petitioner in that regard.
The next question is whether the confiscation order dated 30.8.2008 has been passed without adhering to the principle of natural justice. Sub-section (3) of Section 47-A as noted supra provides for:
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 of confiscation of seized intoxicants, articles, implements, utensils materials, conveyance etc. to the Court having jurisdiction to try the offence on account of which seizure has been made;
(b) issue 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 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.
In the case at hand the impugned order dated 30.8.2008 records that a proclamation was made on 5.5.2008 regarding the proceedings of confiscation, however, the order nowhere reflects that the notice as contemplated u/s 47-A(3)(b) and (c) was issued. In absence whereof, it cannot be presumed, as the Respondent wants to, that an opportunity of hearing was afforded to the Petitioner. Thus, there is a violation of statutory provision and an order based on such proceedings is not tenable in the eyes of law. Consequently, the order of confiscation dated 30.8.2008 is hereby quashed. However, the Respondent No. 4, i.e., Collector, Sagar would be at liberty to pass fresh order after issuing a notice as contemplated u/s 47(3) of the M.P. Excise Act, 1915.
In result the petition is partly allowed to the extent above. However, no costs.