Madhya Pradesh High Court
Satish Jaiswal vs The State Of Madhya Pradesh on 21 April, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 11356 of 2024
RAMLAL JHARIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WITH
WRIT APPEAL No. 2763 of 2024
SMT. JYOTI CHAKRAWARTY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
MISC. CRIMINAL CASE No. 6762 of 2024
ASHIF IQBAL KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT PETITION No. 18164 of 2024
BHISHM SINGH THAKUR
Versus
THE EXCISE COMMISSIONER MADHYA PRADESH GWALIOR AND
OTHERS
WRIT PETITION No. 18492 of 2024
SANJAY YADAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
MISC. CRIMINAL CASE No. 35204 of 2024
SATISH JAISWAL
Versus
THE STATE OF MADHYA PRADESH
MISC. CRIMINAL CASE No. 37906 of 2024
DHARMENDRA KUMAR TOMAR
Versus
THE STATE OF MADHYA PRADESH
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
2
WRIT PETITION No. 6542 of 2025
RAJESH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT PETITION No. 23359 of 2024
CHETAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
-----------------------------------------------------------------------------------------------
Appearance:
Shri Akhil Godha and Shri Karan Kachhwaha - Advocates for petitioner.
Shri Abhijeet Awasthy and Shri B.D. Singh - Deputy Advocate General for
respondents/State.
Shri Jayant Neekhra and Shri Sanjeev Neekhra - Advocates for petitioner in WP
No.11356/2024.
Shri Anuj Agarwal - Advocate for petitioner in MCRC No.6762/2024.
Shri Vivek Ranjan Pandey, Shri Vijay Shukla and Shri Alok Kumar Gupta - Advocates for
petitioners in WP No.18164/2024 and WP No.6542/2025.
Shri Shivam Mishra - Advocate for petitioner in WP No.18492/2024.
Shri Durgesh Kumar Singrore - Advocate for appellant in WA No.2763/2024.
Shri B.D. Singh - Deputy Advocate General for respondents-State.
Shri Amitabh Gupta - Advocate appears to assist with permission of the Court.
JUDGMENT
(Reserved on : 06/03/2025)
(Pronounced on: 21/04/2025)
Per: Hon’ble Shri Justice Vivek Jain
The case in W.P. No. 11356/2024 and bunch of connected cases relate
to the question of confiscation of vehicles during the pendency of the criminal
trial under M.P. Excise Act 1915 where the vehicle owner may or may not be
the accused in criminal case, whereas the case in W.P. No. 23359/2024 relates
to same question of confiscation during pendency of the trial under the
provisions of the Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam, 2004
during pendency of criminal trial. Since analogous questions arise for
consideration in both these batches of matters, they are being taken up and
decided by this common order.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
3
2. In W.P. No. 11356/2024, the following questions have been referred for
adjudication to larger Bench of this Court vide order dated 06.05.2024 passed
by the a Single Bench. The questions referred are as under:-
“(A) Whether, any articles or vehicles can be confiscated under
Section 47(A) of the M.P. Excise Act, 1915 during the pendency of criminal
trial initiated against the offenders before the Judicial Courts?
(B) Whether, the dictum laid down by the Apex Court in the matter
of Madhukar Rao vs. State of M.P., (2008) 14 SCC 624 is applicable to the
cases registered under Section 34(2) and the Confiscation proceedings
under Section 47(A) of the Act, 1915?
(C) Whether, the confiscation proceedings can go on parallel to the
criminal proceedings and Collector can pass the order of Confiscation
irrespective to the pendency of criminal case?
(D) Whether, the Coordinate Benches were justified in delivering
the conflicting views without referring the matter under Chapter IV Rule
8(3) of the High Court Rules, 2008 and the conflicting view in the absence
of any reference can be considered as binding precedent, in view of the
doctrine of stare decisis?
(E) Whether, writ petition can be entertained against the order of
confiscation, in view of judgment of Apex Court in the matter of Whirlpool
Corporation vs. Registrar of Trade Marks, (1998) 8 SCC 1 and judgment of
Division Bench of this Court in the matter of Alok Kumar Choubey vs. State
of M.P., (2021) 1 MPLJ 348, on the ground that Collector had no authority
to pass any order of confiscation during the pendency of criminal case?”
3. W.P. 6542/2025 which is part of the same batch of petitions relating to
M.P. Excise Act, 1915, in the said petition challenge is made to Constitutional
validity of Section 47-A of M.P. Excise Act, 1915 and has been heard
analogously with this batch of petitions, as similar issues require to be
considered and adjudicated.
4. In W.P. No. 23359/2024 which relates to Madhya Pradesh Govansh
Vadh Pratishedh Adhiniyam, 2004 (for short, hereinafter referred to as “Cow
Progeny Act“), a Single Judge of this Court has referred the following
questions for adjudication by a larger Bench vide order dated 06.09.2024.
“(1) Whether in view of the judgment of the Supreme Court in
cases of Abdul Vahab (supra) (in particular para – 21 as quoted
above) and Kallo Bai (supra), the confiscation proceedings under
Section 11(5) of the Adhiniyam, 2004 and Rule 5 of Rules, 2012 can be
initiated and prosecuted simultaneously with the criminal trial before
the Judicial Magistrate First Class for the offence punishable under
Section 9 of the Adhiniyam, 2010 ?
(2) Whether the District Magistrate can adjudicate violation of
Section(s) 4, 5, 6, 6A and 6B of the Adhiniyam, 2004 before conclusion
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
4of trial by the Judicial Magistrate for offence punishable under Section
9 of the Adhiniyam, 2004 ?
(3) Whether the writ petition can be entertained against the
confiscation order passed by the District Magistrate under Section
11(5) of the Adhiniyam, 2004 despite availability of equally efficacious
alternate relief of appeal under Section 11A of the Adhiniyam and
revision under Section 11B of the Adhiniyam, 2004 on the ground that
the Collector cannot decide the violation of Sections 4, 5, 6, 6A and 6B
of the Adhiniyam, 2004, until decision of the criminal court after trial
for contravention of aforesaid sections?”
5. Therefore, common issues that arise in both the batches of matters are
the authority of the District Magistrate or the confiscating authorities of
executive to pass an order of confiscation of vehicles used for committing the
offence under the said Act before conclusion of the criminal trial pending
before the Court of Judicial Magistrate into the offence committed under the
Act in relation to which crime, the said vehicle has been seized.
6. The reference has been necessitated because there is divergence of
opinion by various benches of this Court on the issue of the authority of the
Collector/ District Magistrate to confiscate the vehicle used for commission of
offences under M.P. Excise Act, 1915 (for short “Excise Act“) and Madhya
Pradesh Govansh Vadh Pratishedh Adhiniyam, 2004 (for short “Cow
Progeny Act“); that whether the Collector/District Magistrate is having
authority and competence to pass confiscation order during pendency of the
criminal trial before the Judicial Magistrate/Sessions Court. In one series of
judgments different Single Benches have taken a view relying on the judgment
of Hon’ble Supreme Court in the case of State of M.P. and others vs.
Madhukar Rao, (2008) 14 SCC 624, that no confiscation order can be passed
during pendency of criminal trial while in other series of the cases decided by
various coordinate Single Benches of this Court it has been held that the said
confiscation can duly take place on account of the position that the case of
Madhukar Rao (supra) was decided in relation to the provisions of Wild Life
Protection Act 1972 in which no separate mechanism for confiscation has been
laid down, there is no procedure for noticing the owner of vehicle, passing a
Signature Not Verified
order of confiscation, appeal and revision etc. to the superior authority and
Signed by: 453
Signing time: 22-04-
2025 17:40:59
5
ultimately to the Court of law. It has been considered that as per Section 39(d)
of the Wild Life Protection Act, 1972, all vehicles, vessels, weapons, traps or
tools used for committing an offence and which have been seized under the
provisions of that Act shall be the property of the State Government or of the
Central Government. Therefore, applicability of the judgment in the case of
Madhukar Rao (supra) has been doubted in various other cases on account
of there being a proper procedure for passing an order of confiscation by
following procedure laid down in Excise Act. Since there are two judgments in
the case of Madhukar Rao, one by Full Bench of this Court, and other by the
Hon’ble Supreme Court, wherein the said judgment has been affirmed, we
shall refer to both respectively as Madhukar Rao (FB) and Madhukar Rao
(SC).
7. The learned Single Judge while making reference in W.P. No.
11356/2024 relating to Excise Act has raised exactly the same issue and has
doubted the applicability of the judgment in the case of Madhukar Rao
(supra) but looking to the divergent opinions of different Benches has
requested for adjudication of the issue by a larger Bench, so that the matter can
be settled once and for all.
8. In W.P. 23359/2024 relating to Cow Progeny Act, the learned single
Judge therein also has taken note of a proper procedure being laid down under
Cow Progeny Act for confiscation and further procedure of appeal and
revision, etc. being laid down under the said Act and therefore, looking to the
divergent views of different Benches of this Court, has requested for
adjudication of the issue by the larger Bench. In the following cases the
Benches of this Court have followed the dictum in the case of Madhukar Rao
(supra)
i) Sheikh Kalim vs. State of M.P. ( M.Cr.C. No.1296/2015)
ii) Suresh vs. State of M.P. (Writ Petition No.19528/2022)
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
6
iii) Akash Raikwar vs. State of M.P. and others ( W.P. No.18178 of
2023)
iv) Bhaskar @ Balkishan Sonone vs. State of M.P. and others, ( W.P.
No.28288/2023).
v) Pankesh vs. The Collector and others, (W.P. No.29095 of 2023).
vi) Sakeel Batla Vs. State of M.P. and others (M.Cr.C. No. 1036/2021).
9. On the other hand in number of judgments, a contrary view has been
taken that the judgment in the case of Madhukar Rao (supra) would not
apply to the cases under Excise Act and Cow Progeny Act on the ground of
difference of the scheme of the said enactments from the scheme of Wild Life
Protection Act 1972 which was the subject matter of the adjudication in the
case of Madhukar Rao (supra). In this line various benches of this Court
have taken the contradictory view in the following cases.
i) Danish Rayin vs. State of M.P. and others, (W.P. No.28700/2022). ii) Vijay vs. State of M.P. and others, ( M.P. No.2141/2023)
iii) Madduri Nagendra vs. State of M.P. and others, (W.P.
No.21818/2023).
iv) Radha Gupta vs. State of M.P. and others (W.P. No.7695/2024)
The aforesaid cases are only some key instances of divergent views
taken by the different benches of this Court.
10. Shri Vivek Ranjan Pandey, Shri Akhil Godha, Shri Jayant Neekhra, Shri
Sanjeev Neekhra, Shri Anuj Agarwal, Shri Vijay Shukla and Shri Alok Kumar
Gupta, Advocates for petitioners in their respective cases have vehemently
argued that the view taken in the case of Madhukar Rao (SC) (supra) needs
to be taken in the present cases also and that no different conclusion would
emerge even in the cases involving Excise Act and the confiscation by
executive has to wait till conclusion of trial of offence by the judicial Court. It
was vehemently argued that in the case of Madhukar Rao (SC) (supra), the
Supreme Court has upheld the judgment of the Full Bench of this Court in the
case of Madhukar Rao Vs. State of M.P. reported in 2000(1) MPLJ 289
wherein the Full Bench of this Court has taken note of the entire legal aspects
Signature Not Verified
including the right to property of a person which is Constitutional right so also
Signed by: 453
Signing time: 22-04-
2025 17:40:59
7
right under Article 19(1)(g) of the Constitution of India which is a
fundamental right vested in every citizen to carry on its/his trade, occupation
or business and has ultimately held that seized property cannot become
property of the State unless there is a trial and finding reached by the
competent Court that the property was used for committing an offence under
the Act. It is vehemently argued that though in the Wild Life Protection Act
1972 mere seizure is enough to declare it as property of Government and those
provisions were being considered by the full Bench of this Court which was
subsequently upheld by the Hon’ble Supreme Court but looking to the scheme
of Excise Act, though there is no such automatic vesting of the seized property
in the State, but practically the vesting is automatic because the defences to
which the owner of the property (vehicle) otherwise Pis entitled to take, have
not been kept open for the owner of property to take in the proceedings for
confiscation to be carried out before the Collector/District Magistrate,
therefore, it is argued that the case of Madhukar Rao (SC & FB) (supra)
would squarely be applicable to confiscation under Excise Act also. In similar
line the case was argued by Shri Akhil Godha, Advocate in the matter relating
to Cow Progeny Act.
11. It is the case of the petitioners that the different conclusions would not
arise even looking to the scheme of the Acts which are in question in the
present case and arguments were raised in detail in relation to the powers of
confiscation during pendency of criminal trial. Reliance has vehemently been
made on the judgment of the Hon’ble Supreme Court in the case of Abdul
Vahab vs. State of M.P. reported in 2022 (13) SCC 310 so also the
judgment of the Full Bench of this Court and of the Hon’ble Supreme Court in
the case of Madhukar Rao (supra).
12. The Constitutional validity of Section 47-A of Excise Act is also put to
challenge in W.P. No. 6542/2025 on the ground that the said provision relates
to deprivation of the property which is unreasonable and arbitrary because
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
8
firstly it enables parallel confiscation proceedings even prior to offence being
proved in a Court of law and secondly, it does not leave appropriate defences
open for the owner of the property, and therefore, the Constitutional validity of
Section 47-A should also be examined and the said provision should be struck
down being violative of Article 300-A and 19 (1) (g) of the Constitution of
India.
13. Per contra, it was vehemently argued by learned counsel for the State
that the judgment in the case of Madhukar Rao (supra) will not apply in the
case of Excise Act and under Cow Progeny Act and further that the M.P.
Excise Act comprises a complete Code in itself in the matter of confiscation,
therefore, there is no automatic vesting of vehicles in the State as is being
argued in the present cases. It is further contended that the basic purpose and
intention to enact such laws is with two objectives, firstly to prevent repeated
use of vehicles in such type of offences like environmental offences and such
other offences for which special deterrent measures are required to be enacted
so as to prevent such offences taking place repeatedly. It is argued that though
confiscation may result in deprivation of property but that is for a lawful and
constitutional purpose i.e. as a deterrent for repeated offences of the nature
which cause mischief and nuisance to the society in general, like cases relating
to environmental protection, food adulteration, essential commodities, wild
life protection, forest protection, cow slaughter, sale and supply of spurious
medicines, narcotic drugs and illicit liquor, etc. Therefore, by placing reliance
on various judgments of this Court and also Hon’ble Supreme Court, it was
prayed to dismiss the petitions and to hold that the confiscating authority can
very well pass an order of confiscation even during pendency of criminal trial.
14. Shri Amitabh Gupta, Advocate also sought and was granted leave to
address being a member of the Bar, as a legal question of larger public
importance is involved in the matter. He also argued vehemently that this
Court should uphold that confiscation of vehicle can take place during
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
9
pendency of criminal trial under the Excise Act and Cow Progeny Act because
such offences cause mischief and nuisance to the society as a whole and
provisions of confiscation of vehicles, implements, tools etc. are enacted in the
concerned laws as preventive measures only to ensure that such offences do
not repeatedly take place because for commission of these offences vehicles
are the primary tools. By confiscating the vehicles involved in such offences,
the legislature further thought it proper that it will serve as deterrent measure
to prevent repeated offence of the like nature which is in public interest and to
achieve the constitutional goals. Therefore, this Court should not hold that the
confiscation cannot take place during pendency of criminal trial. It is further
argued that most often during criminal trial the time taken for conclusion is too
lengthy on account of which proper evidence would not come before the
Courts of law and in most of cases there are acquittals. If the confiscation is
connected with acquittal in criminal cases then in most of the cases the
vehicles would not be liable for confiscation and the very purpose of enacting
the provision would be frustrated and defeated, therefore, this Court should
hold that the confiscation proceedings can be proceeded and concluded during
pendency of criminal trial because the criminal trial is against accused of an
offence whereas confiscation proceedings are against owners of the vehicles
who may or may not be an accused in the trial. Therefore, confiscation
proceedings may go on before the Collector/ District Magistrate even during
pendency of criminal trial before the Court of law.
15. Heard.
16. The primary issue that arises for consideration in all the cases is that
whether during pendency of criminal case before the Court of law, the
confiscation of the vehicle used in the offence can be made by parallel
proceedings to be conducted under the Excise Act or under the Cow Progeny
Act. To appreciate the cases under the M.P. Excise Act, the relevant provisions
of M.P. Excise Act,1915 which give power of confiscation of seized
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
10
intoxicants, articles, implements and vehicles are provided under Section 46,
47, 47-A, 47-B, 47-C and 47-D of the Excise Act.
17. As per Section 46 and 47 the Magistrate who is trying the offence under
the Excise Act has the power and authority to pass order of confiscation.
Thereafter by the amendment of the year 2000, Section 47-A, 47-B, 47-C, 47-
D were inserted in the Excise Act giving power of confiscation in a parallel
manner to the Collector. Appeal is provided against the order of confiscation
and revision lies before the Court of Sessions against the order of appellate
authority. As per Section 47-D there is bar of jurisdiction of the Court to pass
an order about disposal and custody of the said material once intimation of
initiation of confiscation proceedings have been received from the Collector
by the Court.
18. The confiscation as per Section 47-A would take place only where the
quantity of liquor found at the time or in the course of detection of offence
exceeds 50 bulk liters. The relevant provisions of Excise Act are as under :-
46. 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, utensil, 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.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
11
47. 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 beer 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 he 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) of (b) of sub-section (1) of Section 34 is committed and the quan tity 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 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 a ll the details
about the seizure to him.
(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
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
12detection 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 e tc. 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.
47-B. Appeal against the order of confiscation.– (l) Any person aggrieved
by an order of confiscation passed under sub -section (2) of Section 47-A
may, within thirty days of such order prefer an appeal to the Collector
concerned or to any other officer authorised by the State Government by
notification (hereinafter referred to as the Appellate Authority). Such appeal
memorandum shall be accompanied by a certified copy of the order
appealed against.
(2) The Appellate. Authority on presentation of such memorandum of appeal,
issue a notice to the appellant and to any other person who is likely to be
adversely affected by the order that may be passed in appeal.
(3) The Appellate Authority after hearing the parties to the appeal, shall pass
an order confirming, reversing or modifying the order of confiscation
appealed against:
Provided that he may pass such order of interim nature for custody, disposal
etc. or the confiscated articles during the pendency of appeal, as may appear
to him just or proper in the circumstances of the case but he shall have noSignature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
13power to stay the order of confiscation appealed against du ring the
pendency of appeal.
47-C Revision before the Court of sessions against the order of Appellate
Authority.– (1) Any party to appeal aggrieved by the final order by the
Appellate Authority under sub -section (3) of Section 47-B may, within 30
days of such order submit a petition or revision solely on the ground of
illegality of such order to the Court of sessions within the sessions division.
(2) The Court of sessions may, if it finds any illegality in the order of the
Appellate Authority, confirm, reverse or modify the order passed by the
Appellate Authority:
Provided that the Court of session shall have no powers to stay the order of
confiscation of the order passed by the Appellate Authority during pendency
of the petition for revisions before it.
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.
19. From a bare perusal of the aforesaid provisions of the said Act, it is seen
that as per Section 47-A(2) the provision is that when the intoxicants, articles,
materials, vehicles etc. are produced before the Collector or report about
seizure of such materials is received by the Collector and Collector is satisfied
that an offence under Section 34(1)(a) or (b) has been committed and quantity
of liquor is more than 50 bulk liters, he may for reasons to be recorded in
writing order confiscation of such materials and vehicles. He has also been
given power to pass orders for custody of such materials and vehicles during
pendency of proceedings before him.
20. On strength of such provisions in Excise Act, it is argued before us that
the provisions are complete code in itself and there is proper procedure to be
carried out by Collector before passing the confiscation order, he has to pass a
Signature Not Verified reasoned order and appeal is provided against the order of confiscation and
Signed by: 453
Signing time: 22-04-
2025 17:40:59
14revision thereafter lies before the Court of Sessions and even if Collector has
committed any material irregularity in passing the confiscation order or has
given an erroneous finding being a judicially untrained person as compared to
a Court, then such errors of procedure and jurisdiction and law can be
corrected by the Court of Sessions being the revisional authority and it cannot
be inferred that errors and mistakes committed by the Collector would not be
cured by the Sessions Court which entertains a statutory revision against the
order of confiscation. Therefore, the rights of the owner of the vehicle are fully
protected and confiscation order can duly be passed even during pendency of
the trial.
21. We note that in the aforesaid provision of Section 47-A which relates to
confiscation order there is no defence which is open to the owner of the
vehicle that the vehicle was being used for such offence without his
knowledge or connivance. When such defence has not been made open to the
owner of the vehicle then looking to such provision of Section 47-A it was
argued that the confiscation order would be a mere formality and it is an
automatic vesting like the provisions of Section 39(1)(d) of Wild Life
Protection Act, 1972 and on that ground it was vehemently argued by learned
counsel for the petitioners that there is no real difference between the
provisions of Wild Life Protection Act, 1972 and the Excise Act though
theoretically the Excise Act may have a complete procedure of passing a
reasoned order, appeal and revision thereafter.
22. Considering the aforesaid contentions, we may look towards provisions
of other enactments wherein similar provisions for confiscation of seized
materials, vehicles etc. have been laid down and the difference between the
aforesaid provisions which have been put to interpretation by the Hon’ble
Supreme Court from time to time, as compared to provisions involved herein.
23. Provisions are found in Indian Forest Act (as applicable in Madhya
Signature Not Verified
Pradesh) in Section 52 thereof which reads as under:-
Signed by: 453
Signing time: 22-04-
2025 17:40:59
15
52. Seizure of property liable to confiscation and procedure thereof.- (1)
When there is reason to believe that a forest offence has been committed in
respect of any reserved forest, protected forest, village forest or forest
produce, the forest produce, together with all tools, arms, boats, carts,
equipment, ropes, chains, machines, vehicles, cattle or any other article
used in committing any such offence, may be seized by a Forest Officer or
Police Officer.
(2) Every officer seizing any property under this section shall place on such
property a mark indicating that the same has been so seized and shall, as
soon as may be, make a report of such seizure before an officer not below
the rank of the Divisional Forest Officer (hereinafter referred to as the
‘authorised officer’):
Provided that when the forest produce with respect to which such offence is
believed to have been committed is the property of the Government and the
offender is unknown, it shall be sufficient if the officer makes, as soon as
may be, a report of the circumstances to his official superior.
(3) Subject to sub-section (5), where the authorised officer upon receipt of
report about seizure, is satisfied that a forest offence has been committed in
respect thereof, he may, by order in writing and for reasons to be recorded,
confiscate forest produce so seized together with all tools, arms, boats,
carts, equipment, ropes, chains, machines, vehicles, cattle or any other
article used in committing such offence and a copy of the order of
confiscation shall be forwarded without any undue delay to the person from
whom the property is seized and to the Conservator of Forest Circle in
which the forest produce, tools, arms, boats, carts, equipment, ropes,
chains, machines, vehicles, cattle or any other article as the case may be,
has been seized.
(4) No order confiscating any property shall be made under sub-section
(3) unless the authorised officer,-
(a) sends an intimation in writing about initiation of proceedings for
confiscation of the property to the Magistrate having jurisdiction to try the
offence on account of which the seizure has been made;
(b) issues a notice in writing to the person from whom the property is
seized and to any other person who may, in the opinion of the authorised
officer to have some interest in such property;
(c) affords an opportunity to the persons referred to in clause (b) of making
a representation within such reasonable time as may be specified in the
notice against the proposed confiscation; andSignature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
16
(d) gives to the officer effecting the seizure and the person or persons to
whom notice has been issued under clause (b), a hearing on date to be
fixed for such purpose.
(5) No order of confiscation under sub-section (3) of any tools, arms,
boats, carts, equipment, ropes, chains, machines, vehicles, cattle or any
other article (other than timber or forest produce seized) shall be made if
any person referred to in clause (b) of sub-section (4) proves to the
satisfaction of authorised officer that any such tools, arms, boats, carts,
equipment, ropes, chains, machines, vehicles, cattle or any other article
were used without his knowledge or connivance or, as the case may be,
without the knowledge or connivance of his servant or agent and that all
reasonable and necessary precautions had been taken against the use of
objects aforesaid for commission of forest offence.
(Vide Madhya Pradesh Act 25 of 1983, sec. 3 Substituted by Madhya
Pradesh Act of 2010, sec. 6]
After sub-section 5, insert the following sub-sections, namely:-
“(6) The seized property shall continue to be under custody until
confirmation of the order of the authorized officer by the Appellate
Authority or until the expiry of the period for initiating “suo motu” action
by him whichever is earlier, as prescribed under Section 52A.
(7) Where the authorized officer having jurisdiction over the case is himself
involved in the seizure or investigation, the next higher authority may
transfer the case to any other officer of the same rank for conducting
proceedings under this section.”
[Vide Madhya Pradesh Act 7 of 2010, sec. 6.]
(Emphasis supplied)
24. It is clear from the perusal of Section 52(5) of Indian Forest Act (as
applicable in Madhya Pradesh) that the person having interest in the property
or from whom some property is seized, shall have a right to prove to the
satisfaction of the authorized officer that such vehicles and materials were
used without the knowledge or connivance of such person or his servant or
agent and all reasonable and necessary precautions had been taken against the
use of such objects for commission of forest offence.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
17
25. In the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS
Act” for short) there are no parallel proceedings for confiscation vested in the
investigating agency or in the authorities of the executive. Only the Court
trying offence under the said Act has the power to order confiscation in terms
of Section 60 thereof which reads as under:-
60. Liability of illicit drugs, substances, plants, articles and conveyances
to confiscation.–1 [(1) Whenever any offence punishable under this Act
has been committed, the narcotic drug, psychotropic substance, controlled
substance, opium poppy, coca plant, cannabis plant, materials, apparatus
and utensils in respect of which or by means of which such offence has
been committed, shall be liable to confiscation.]
(2) Any narcotic drug or psychotropic substance 2 [or controlled
substances] lawfully produced, imported inter-State, exported inter-State,
imported into India, transported, manufactured, possessed, used,
purchased or sold along with, or in addition to, any narcotic drug or
psychotropic substance 2 [or controlled substances] which is liable to
confiscation under sub-section (1) and the receptacles, packages and
coverings in which any narcotic drug or psychotropic substance 2 [or
controlled substances], materials, apparatus or utensils liable to
confiscation under sub-section (1) is found, and the other contents, if any,
of such receptacles or packages shall likewise be liable to confiscation.
(3) Any animal or conveyance used in carrying any narcotic drug or
psychotropic substance 2 [or controlled substances], or any article liable
to confiscation under sub-section (1) or sub-section (2) shall be liable to
confiscation, unless the owner of the animal or conveyance proves that it
was so used without the knowledge or connivance of the owner himself,
his agent, if any, and the person-in-charge of the animal or conveyance
and that each of them had taken all reasonable precautions against such
use.
Section 60(3) again gives a defence to the owner of the animal or
conveyance that it was so used without knowledge or connivance of the
owner himself and his agent and all precautions were taken against such
use.
(Emphasis supplied)
26. In Customs Act, 1962 confiscation is laid down under Section
115 which reads as under:-
115. Confiscation of conveyances. (/) The following conveyances
shall be liable to confiscation:-
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
18
(a) any vessel which is or has been within the Indian
customs waters, any aircraft which is or has been in India, or
any vehicle which is or has been in a customs area, while
constructed, adapted, altered or fitted in any manner for the
purpose of concealing goods;
(b) any conveyance from which the whole or any part of
the goods is thrown overboard, staved or destroyed so as to
prevent seizure by an officer of customs,
(c) any conveyance which having been required to stop
or land under section 106 fails to do so. except for good and
sufficient cause;
(d) any conveyance from which any warehoused goods
cleared for exportation, or any other goods cleared for
exportation under a claim for drawback, are unloaded, without
the permission of the proper officer.
(e) any conveyance carrying imported goods which has
entered India and is afterwards found with the whole or
substantial portion of such goods missing, unless the master of
the vessel or aircraft is able to account for the loss of, or
deficiency in, the goods.
2) Any conveyance or animal used as a means of transport in the
smuggling of any goods or in carriage of any smuggled goods shall be
liable to confiscation, unless the owner of the conveyance or animal
proves that it was so used without the knowledge or connivance of the
owner himself, his agent, if any, and the person in charge of the
conveyance or animal.
Provided that where any such conveyance is used for the carriage
of goods or passengers for hire, the owner of any conveyance shall be
given an option to pay in lieu of the confiscation of the conveyance a fine
not exceeding the market price of the goods which are sought to be
smuggled or the smuggled goods, as the case may be
Explanation. In this section, “market price” means market price at
the date when the goods are seized.
(Emphasis supplied)
27. From perusal of Sub-section (2) of Section 115, it is seen that
defence is made available to owner of the vehicle that it was used without his
knowledge or connivance of the owner himself or his agent or person in
charge.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
19
28. In Imports and Exports Control Act, 1947 (since repealed and
replaced by Foreign Trade Development and Regulation Act 1992) provision
for confiscation was laid down in Section 4(H) which related to confiscation
of conveyance, and read thus:
4H. [Confiscation of conveyance. [Inserted by Act 12 of 1976,
Section 3.]
– Any conveyance or animal which has been, is being, or is
attempted to be, used for the transport of any imported goods or materials
which are liable to confiscation under this Act, shall be liable to
confiscation unless the owner of the conveyance or animal proves that it
was, is being, or is about to be, so used without the knowledge or
connivance of the owner himself, his agent, if any, and the person in
charge of the conveyance or animal and that each of them had taken all
reasonable precautions against such use:
Provided that in the case of a conveyance or animal used for the
transport of goods or passengers for hire, the owner of the conveyance or
animal shall be given an option to pay, in lieu of confiscation of the
conveyance or animal, a fine not exceeding the value of the imported goods
or materials which have been, are being, or attempted to be, transported
by such conveyance.]
(Emphasis supplied)The said Act has been replaced by Foreign Trade Development
and Regulation Act 1992 and as per the Rules framed therein known as
Foreign Trade Regulation Rules 1993, the following has been laid
down in the matter of confiscation of conveyances :-
18. Confiscation of conveyance.-
(1) Any conveyance or animal which has been, is being, or is attempted to
be used, for the transport of any goods or materials that are imported and
which are liable to confiscation under rule 17, shall be liable to be
confiscated by the Adjudicating Authority unless the owner of the
conveyance or animal proves that it was, is being, or is about to be so
used without the knowledge or connivance of the owner himself, his
agent, if any, and the person in-charge of the conveyance or animal and
that each of them had taken all reasonable precautions against such use.
(2) The Adjudicating Authority shall permit redemption of the confiscated
conveyance or animal used for the transport of goods or passengers for
hire upon payment of redemption charges equivalent to the market value of
such conveyance or animal.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
20
(Emphasis supplied)
29. The aforesaid Section 4(H) and under the repealed Act and Rules
under the new Act, both give a defence to the owner of the conveyance/vehicle
that it was used without knowledge or connivance of owner himself or of his
agent.
30. Confiscation provisions are there in Section 6-A and 6-B of
Essential Commodities Act 1955. Section 6-B of the said Act reads as under:-
6B. Issue of show cause notice before confiscation of food grains,
etc.-[(1)] No order confiscating “[any essential commodity] package,
covering, receptacle, animal, vehicle, vessel or other conveyance] shall be
made under section 6A unless the owner of such [essential commodity)
package, covering, receptacle, animal, vehicle, vessel or other conveyance)
or the person from whom [it is seized]-
(a) is given a notice in writing informing him of the
grounds on which it is proposed to confiscate the “[essential
commodity] package, covering, receptacle, animal, vehicle,
vessel or other conveyance];
(b) is given an opportunity of making a presentation in
wiring within such reasonable time as may be specified in the
notice against the ground of confiscation; and
(c) is given a reasonable opportunity of being heard in
the matter.
[(2) Without prejudice to the provisions of sub-section (1), no order
confiscating any animal, vehicle, vessel or other conveyance shall be made
under section 6A if the owner of the animal, vehicle vessel or other
conveyance proves to the satisfaction of the Collector that it was used in
carrying the essential commodity without the knowledge or connivance
of the owner himself, his agent, if any, and the person in charge of the
animal, vehicle, vessel or other conveyance and that each of them had
taken all reasonable and necessary precautions against such use.]
[(3) No order confiscating any essential commodity package,
covering, receptacle, animal, vehicle, vessel or other conveyance shall be
invalid merely by reason of any defect or irregularity in the notice, given
under clause (a) of sub-section (1), if, in giving such notice, the provisions
of that clause have been substantially complied with.]
(Emphasis supplied)
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
21
31. From perusal of Sub-section (2) of Section 6(B) it is clear that
though the Collector is given a parallel power to confiscate a
conveyance/vehicle but a defence has been given to the owner of the vehicle
and vessel that it was being used for such offence without he or his agent
having knowledge or connivance for use of such vehicle and had taken all
reasonable precautions against such use.
32. The Central Goods and Services Tax, 2017 also provides for
confiscation of goods and conveyances in terms of Section 130 thereof which
reads as under:-
130. Confiscation of goods or conveyances and levy of penalty.- –
(1) 2 [Where] any person–
(i) supplies or receives any goods in contravention of any of the
provisions of this Act or the rules made thereunder with intent to evade
payment of tax; or
(ii) does not account for any goods on which he is liable to pay tax
under this Act; or
(iii) supplies any goods liable to tax under this Act without having
applied for registration; or
(iv) contravenes any of the provisions of this Act or the rules made
thereunder with intent to evade payment of tax; or
(v) uses any conveyance as a means of transport for carriage of
goods in contravention of the provisions of this Act or the rules made
thereunder unless the owner of the conveyance proves that it was so used
without the knowledge or connivance of the owner himself, his agent, if
any, and the person in charge of the conveyance, then, all such goods or
conveyances shall be liable to confiscation and the person shall be liable
to penalty under section 122.
(2) Whenever confiscation of any goods or conveyance is
authorised by this Act, the officer adjudging it shall give to the owner of
the goods an option to pay in lieu of confiscation, such fine as the said
officer thinks fit:
Provided that such fine leviable shall not exceed the market value
of the goods confiscated, less the tax chargeable thereon:
Provided further that the aggregate of such fine and penalty
leviable shall not be less than the 3 [penalty equal to hundred per cent. of
the tax payable on such goods]:
Provided also that where any such conveyance is used for the
Signature Not Verified carriage of the goods or passengers for hire, the owner of the conveyance
Signed by: 453
Signing time: 22-04-
2025 17:40:59
22shall be given an option to pay in lieu of the confiscation of the conveyance
a fine equal to the tax payable on the goods being transported thereon.
(4) No order for confiscation of goods or conveyance or for imposition of
penalty shall be issued without giving the person an opportunity of being
heard.
(5) Where any goods or conveyance are confiscated under this Act, the title
of such goods or conveyance shall thereupon vest in the Government.
(6) The proper officer adjudging confiscation shall take and hold
possession of the things confiscated and every officer of Police, on the
requisition of such proper officer, shall assist him in taking and holding
such possession.
(7) The proper officer may, after satisfying himself that the confiscated
goods or conveyance are not required in any other proceedings under this Act and
after giving reasonable time not exceeding three months to pay fine in lieu of
confiscation, dispose of such goods or conveyance and deposit the sale proceeds
thereof with the Government.
(Emphasis supplied)
33. As per Section 130(1)(v) defence has been given to owner of the
vehicle that it was used without knowledge or connivance of the owner or his
agent.
34. As per M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam 1969,
the power of confiscation is laid down in Section 15 which is a parallel power
which is to be exercised by the Government officials of the Executive
irrespective of trial before the Court of law. Section 15 reads as under:-
15. Search and seizure of property liable to confiscation and
procedure therefor. [Substituted by M.P. Act No. 15 of 1987 (w.e.f. 21-11-
1986).]
(1)[Any Forest Officer as may be notified by the State Government
or any Police Officer not below the rank of an Assistant Sub-Inspector] or
any other person authorised by the State Government may, with a view to
securing compliance with the provisions of this Act or the rules made
thereunder or to satisfying himself that the said provisions have been
complied with,-]
(i)stop and search any person, boat, vehicle or receptacle used or
intended to be used for the transport of specified forest produce;
(ii)enter and search any place.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
23
(2)When there is reason to believe that any offence under this Act
has been committed in respect of any specified forest produce, [any Forest
Officer as may be notified by the State Government or any Police Officer
not below the rank of an Assistant Sub-Inspector] [Substituted by M.P. Act
No. 16 of 1990 (w.e.f. 21-8-1990).] or any person authorised by the State
Government in this behalf may, seize such specified forest produce
alongwith all tools, boats, vehicles, ropes, chains or any other articles used
in committing such offence under the provisions of this Act.
(3)Any officer or person seizing any property under this section
shall place on all such properly a mark indicating that the same has been
so seized and shall, as soon as may be, either produce the property seized
before the officer not below the rank of an Assistant Conservator of Forest
authorised by the State Government in this behalf, by notification
(hereinafter referred to as the authorised officer) or where it is having
regard to quantity or bulk or other genuine difficulty, not practicable to
produce the property seized before the authorised officer, make a report
about the seizure to the authorised officer, or where it is intended to launch
criminal proceedings against the offender immediately make report of such
seizure to the Magistrate having jurisdiction to try the offence on account
of which seizure has been made :Provided that, when the specified forest
produce with respect to which such offence is believed to have been
committed is the property of Government and the offender is unknown, it
shall be sufficient if the officer makes as soon as may be a report of the
circumstances to his official superior.
(3A)[ Any forest officer of a rank not interior to that of a Ranger,
who or whose subordinate, has seized any tools, boats, vehicles, ropes,
claims or any other article as liable for confiscation, may release the same
on the execution by the owner thereof, of a security in a form as may the
prescribed, of an amount equal to double the value of such property, as
estimated by such officer, of the production of the property so released,
when so required, before the officer authorized to order the confiscation or
the Magistrate having jurisdiction to try the offence on account of which
the seizure has been made.] [Inserted by M.P. Act No. 14 of 2007.]
(4)Subject to the provisions of sub-section (6), where the authorised
officer upon production before him of the specified forest produce or upon
receipt of report about the seizure, as the case may be, is satisfied that
offence has been committed in respect thereof, he may, by order in writing
and for reasons to be recorded confiscate the specified forest produce so
seized together with all tools, vehicles, boats, ropes, chains or any other
articles used in committing such offence. A copy of order of confiscation
shall be forwarded without any undue delay to the [Officer-in-charge of
Forest Circle] [Substituted for ‘Conservator of Forest of the Circle’ by
M.P. Act No. 11 of 2009.] in which the specified forest produce has been
seized.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
24
(5)No order confiscating any property shall be made under
subsection (4) unless the authorised officer,-
(a)sends an intimation in forms prescribed about initiation
of proceedings for confiscation of property to the Magistrate
having jurisdiction to try the offence on account of which the
seizure has been made;
(b)issues a notice in writing to the person from whom the
property is seized, and to any other person who may appear to the
authorised officer to have some interest in such property;
(c)affords an opportunity to the persons referred to in
clause (b) of making a representation within such reasonable time
as may be specified in the notice against the proposed confiscation;
and
(d)gives to the officer or person effecting the seizure and the
person or persons to whom notice has been issued under clause (b),
a hearing on the date to be fixed for such purpose.
(5A)[ When the authorised officer having the jurisdiction
over the case is himself involved in the seizure of investigation, the
next higher authority may transfer the case to any other officer of
the same rank for conducting proceedings under this
section.] [Inserted by M.P. Act No. 14 of 2007.]
(6) No order of confiscation under sub-section (4) of any tools,
vehicles, boats, ropes, chains or any other articles (other than specified
forest produce seized) shall be made if any person referred to in clause
(b) of sub-section (5) proves to the satisfaction of authorised officer that
any such tools, vehicles, boats, ropes, chains or other articles were used
without his knowledge or connivance or as the case may be, without the
knowledge or connivance of his servant or agent and that all reasonable
and necessary precautions had been taken against use of objects
aforesaid for commission of an offence under this Act.
(6A)[ The seized forest produce or any other property, if ordered to
be released by the authorised officer, shall continue to be under custody
until confirmation of the order of the authorised officer by the Appellate
Authority or until the expiry of the period for initiating “suo motu” action
by him, whichever is earlier, as specified under Section 15-A.] [Inserted by
M.P. Act No. 14 of 2007.]
(Emphasis supplied)
35. As per Section 15(6) of the said Adhiniyam quoted above,
provision has been carved out that the vehicles or conveyance or the material
were used without his knowledge or connivance and that he or his agent had
Signature Not Verified
taken due care and precaution to prevent such involvement of the vehicle.
Signed by: 453
Signing time: 22-04-
2025 17:40:59
25
36. On the other hand, there are two enactments wherein we could
find that the said defence of lack of knowledge and connivance has not been
made open to the owner. The first is Drugs and Cosmetics Act, 1940 in which
section 31 relates to confiscation of vehicle which is as under:-
“31. Confiscation. —
[(1)] Where any person has been convicted under this Chapter for
contravening any such provision of this Chapter or any rule made
thereunder as may be specified by rule made in this behalf, the stock of the
drug 6 [or cosmetic] in respect of which the contravention has been made
shall be liable to confiscation 7 [and if such contravention is in in respect
of–
[(i) manufacture of any drug deemed to be misbranded
under section 17, adulterated under section 17A or spurious under
section 17B; or]
(ii) 9 [manufacture for sale, or for distribution, sale, or
stocking, or exhibiting or offering for sale,] or distribution of any
drug without a valid licence as required under clause (c) of section
18,
any implements or machinery used in such manufacture,
sale or distribution and any receptacles packages or coverings in
which such drug is contained and the animals, vehicles, vessels or
other conveyances used in carrying such drug shall also be liable
to confiscation].
[(2) Without prejudice to the provisions contained in sub-section
(1), where the Court is satisfied, on the application of an Inspector or
otherwise and after such inquiry as may be necessary that the drug or
cosmetic is not of standard quality 11[or is a 9 [misbranded, adulterated
or spurious drug or misbranded or spurious cosmetic,] such drug or, as
the case may be, such cosmetic shall be liable to confiscation.
37. The second such enactment was the Opium Act 1878 (now
replaced by NDPS Act 1985), wherein as applicable to Madhya Bharat, there
was a provision for confiscation empowering the Court trying the offence, to
pass order for confiscation in the following manner as provided in Section 11
(d) :-
“S. 11. In any case in which an offence under Sections 9, 9A, 9B, 9C, 9D,
9E, 9F and 9G has been committed, the property detailed herein below
shall be confiscated :-
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
26
xx xx xx
(d) the receptacles, packages and coverings in which any opium liable to
confiscation under this Section is found, and the other contents (if any) of
the receptacle or package in which such opium may be concealed, and the
animals, carts, vessels, rafts and conveyances used in carrying it.”
38. In the aforesaid enabling provisions of confiscation in the two
provisions mentioned above, though no defence was made available to the
owner of the vehicles or vessels that vehicle was used without his knowledge
or connivance but the power of confiscation is restricted and it is restricted in
the manner that power lies only with the Court trying the offence and
undisputedly the said confiscation will take place only once a person has
been convicted by the trial Court and not before that and all findings on all
aspects of the offence would be before the Court before it orders confiscation
at conclusion of trial.
39. Under the Wild Life Protection Act which was subjected to
interpretation by the Full Bench of this Court and upheld by the Hon’ble
Supreme Court in the case of Madhukar Rao (FB & SC), Section 39(1)(d)
thereof declares that any vehicle, vessel, trap or tool that has been used for
committing an offence and has been seized under the provisions of Act shall
be property of the Central Government or the State Government as the case
may be. Section 39 of the Wild Life Protection Act is as under:-.
39. Wild animals, etc., to be Government property.–(1) Every–
(a) wild animal, other than vermin, which is hunted under section
11 or sub-section (1) of section 29 or sub-section (6) of section 35 or kept
or 1 [bred in captivity or hunted] in contravention of any provision of this
Act or any rule or order made thereunder or found dead, or killed 2*** or
by mistake; and
(b) animal article, trophy or uncured trophy or meat derived from
any wild animal referred to in clause (a) in respect of which any offence
against this Act or any rule or order made thereunder has been committed,
(c) ivory imported into India and an article made from such ivory
in respect of which any offence against this Act or any rule or order made
thereunder has been committed;
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
27
(d) vehicle, vessel, weapon, trap or tool that has been used for
committing an offence and has been seized under the provisions of this
Act.] shall be the property of the State Government, and, wheresuch
animal is hunted in a sanctuary or National Park declared by the Central
Government, such animal or any animal article, trophy, uncured trophy
or meat 4 [derived from such animal or any vehicle, vessel, weapon, trap
or tool used in such hunting] shall be the property of the Central
Government.
(2) Amy person who obtains, by any means, the possession of
Government property, shall, within forty-eight hours from obtaining such
possession, make a report as to the obtaining of such possession to the,
nearest police station or the authorised officer and shall, if so required,
hand over such property to the officer-in-charge of such police station or
such authorised officer, as the case may be.
(3) No person shall, without the previous permission in writing of
the Chief Wild Life Warden or the authorised officer–
(a) acquire or keep in his possession, custody or control, or
(b) transfer to any person, whether by way of gift, sale or
otherwise, or
(c) destroy or damage, such Government property.
(4) Where any such Government property is a live animal, the
State Government shall ensure that it is housed and cared for by a
recognised zoo or rescue centre when it cannot be released to its natural
habitat.
(5) Any such animal article, trophy or uncured trophy or meat
derived from any wild animal, as referred to in sub-sections (1) and (2)
may be disposed of by the State Government or the Central Government, as
the case may be, in such manner as may be prescribed by the Central
Government:
Provided that such disposal shall not include any commercial sale
or auction and no certificate of ownership shall be issued for such
disposal.]
(Emphasis supplied)
40. It was vehemently argued before us by relying on the said
provision that since in the Wild Life Protection Act there is no parallel
mechanism of adjudication and appeal & revision against such adjudication
therefore, the judgment in the case of Madhukar Rao (supra) would not
apply in this case and the Full Bench as well as Hon’ble Supreme Court had
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
28passed the orders in view of the provisions of the said Act which do not
provide for any mechanism of adjudication by the Collector/District
Magistrate and appeal and revision against such confiscation order.
41. From the aforesaid legislative scheme, one thing is clear, firstly
that wherever executive has been given parallel right to confiscate the
vehicles, tools, receptacles, boats etc. used in the commission of offence, then
a defence has been kept open for the owner of the vehicle and material that it
was used without his knowledge or connivance and that neither he nor his
agents had such knowledge or connivance and had taken all due care and
precautions for the same. Only enactments wherein such defence is not made
open is Drugs and Cosmetics Act, 1940 and the now-repealed Opium Act
1878. However, in the said enactments confiscation can take place only on
orders of the Criminal Court trying the offence and undisputedly, after
conviction by the Court of law.
42. In our opinion, if confiscation takes place without the owner of
the vehicle having a defence available with him that the vehicle was used
without his knowledge or connivance and that he and his agents had taken all
care and precautions to prevent such use of vehicle, then the confiscation
would be a mere formality and though a power of adjudication has been
given to the Collector but that power is only a cosmetic power and not a real
power. Once the Collector will not have authority to take defence of the
owner in consideration that vehicle was used without his knowledge or
connivance, then passing of confiscation order would be a mere formality to
be carried out by the Collector and practically mere seizure would amount to
consequences being followed of passing an order of confiscation, though
theoretically it may not be so.
43. If such a power to pass order for confiscation without
considering the defence of the owner pleading lack of knowledge or
connivance, is given to the Court tying the offence, then, in our considered
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
29opinion, it would have different colour. This is because the Court would have
tried the entire offence, and all facts would have come before the Court
during trial, that what was the role of which of the accused, how the material
was placed on the vehicle/conveyance and how the vehicle came in
possession of the owner, that whether the vehicle was stolen, taken on hire, or
simply loaned from owner on some pretext, or owner had knowledge of the
vehicle being used in such a manner for illegal purposes. When all the facts
would be before the Court during trial, then the Court will consider all such
facts, though no specific defence is provided. In those cases, the construction
of the words may be made so as to remove the absurdity. It was held by the
Hon’ble Supreme Court in the case relating to Opium Act 1878, in the case
of State of M.P. v. Azad Bharat Finance Co., reported in AIR 1967 SC 276
that the Court would consider all the relevant factors and then take a decision
whether to confiscate the vehicle or not. The Hon’ble Supreme Court held so
in the following manner :-
5. In our opinion, the High Court was correct in reading Section 11 of the Madhya
Bharat Act as permissive and not obligatory. It is well settled that the use of the
word “shall” does not always mean that the enactment is obligatory or
mandatory; it depends upon he context in which the word “shall” occurs and the
other circumstances. Three considerations are relevant in construing Section 11.
First, it is not denied by Mr Shroff that it would be unjust to confiscate the truck of
a person if he has no knowledge whatsoever that the truck was being used for
transporting opium. Suppose a person steals a truck and then uses it for
transporting contraband opium. According to Mr Shroff, the truck would have to
be confiscated. It is well recognised that if a statute leads to absurdity, hardship or
injustice, presumably not intended, a construction may be put upon it
which modifies the meaning of the words, and even the structure of the sentence,
(vide Tirath Singh v. Bachittar Singh [(1955) 2 SCR 457 at 464] ).
7. Thirdly, if the meaning suggested by Mr Shroff is given, Section 11(d) of the
Madhya Bharat Act may have to be struck down as imposing unreasonable
restrictions under Article 19 of the Constitution. Bearing all these considerations
in mind, we consider that Section 11 of the Madhya Bharat Act is not obligatory
and it is for the court to consider in each case whether the vehicle in which the
contraband opium is found or is being transported should be confiscated or not,
having regard to all the circumstances of the case.
44. As already considered by us above, when the confiscating
authority would be the Court trying the offence, then all the facts shall be
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
30
before the Court at the time of confiscation and the Court can take an
appropriate decision whether to pass order for confiscation or not. The same
power is given in section 46 and 47 of the Excise Act to the trial Court trying
the offence, and though defence of lack of knowledge and connivance is not
given, but when the Court would have tried the offence, it would have all the
facts before it, and can pass an appropriate order for confiscation or
otherwise. That power would be proportionate and reasonable. However, in
the present case, what is under challenge is, power given to Executive (and
not to Trial Court trying the criminal offence) to pass order for confiscation
even during pendency of trial, and not opening the defence of lack of
knowledge and connivance to the owner of the vehicle. The Constitutionality
and proportionality of the provisions have to be seen from this angle.
45. This Court cannot lose sight of instances which were placed
before counsel for the State during the course of arguments and asked that
whether in such cases the vehicle owner or his agents can be presumed to be
having any connivance in the offence, and if that is not so then if such
defence is not made available to such vehicle owners then the hearing of the
person or owner by carrying out parallel confiscation proceedings would be a
mere formality, which the counsel for the State was unable to controvert.
Whether in such cases, would the confiscation of the vehicle not be utterly
illegal and oppressive to owners/operators of the Cabs, Buses, Train,
Aeroplane, etc. Such instances are as under :-
a. A passenger boards a public bus with two-three large suitcases
containing more than 50 bulk liters of liquor.
b. A person books a cab through a mobile application like Ola or
Uber and boards the cab with two-three such large suitcases
containing contraband liquor.
c. A person boards a train with such contraband material.
d. Lastly, a person succeeds in sneaking in some contraband on a
commercial flight.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
31
46. We are not oblivious of the menace of local smuggling and inter
State smuggling of stolen liquor, country made liquor and spurious liquor,
which violate the provisions of Excise Act and tends to hamper regulatory
regime of supply of liquor and in some cases, may make liquor unfit for
human consumption available to public. However, on one hand the menace
has to be curbed but it has to be curbed in a lawful and reasonable manner
and not in unreasonable manner by framing an unconstitutional and
disproportionate law. By not opening the defence of knowledge to the owner
of the vehicle and giving right to the executive to pass an order of
confiscation even before conviction in the Court of law by the offender and
the owner of the vehicle may or may not be an accused in the offence, then it
would amount to a travesty of justice and deprivation of right to property of
the owner violating Article 300-A and if the vehicle is used for business of
hire carried out by the owner then it also amounts to violation of his right to
trade and business under Article 19(1)(g) of Constitution of India, as well is a
disproportionate legislation.
47. We are fortified in our reasoning by the provisions contained in
Drugs and Cosmetics Act, 1940 which though do not open such defence to
the owner of the vehicle and material but restrict the power of confiscation to
be exercised only by the Court of law, undisputedly, upon conviction
recorded by the Court of Law. Similar were the provisions of Opium Act
1878 (now repealed).
48. Recently, in a case involving NDPS Act, the Supreme Court in
the case of Bishwajit Dey v. State of Assam, 2025 SCC OnLine SC 40, has
dwelled on the issue of confiscation under the NDPS Act during pendency of
criminal case which we will discuss in succeeding paras.
49. Learned counsel for the State had vehemently relied on
judgment in the case of Divisional Forest Officer vs. G.V. Sudhakar Rao
reported in (1985) 4 SCC 573 and submitted that the Hon’ble Supreme
Signature Not Verified
Court in the aforesaid case has upheld that parallel powers can very well be
Signed by: 453
Signing time: 22-04-
2025 17:40:59
32
vested in the officers of the executive to pass orders for confiscation of seized
vehicle etc. during pendency of criminal trial and such parallel proceedings
cannot be held to be unauthorized in any manner. The said issue is no longer
res-integra and we have not also dwelled upon the constitutionality or
legality of the provisions from the angle of parallel powers having been
vested in the Collector to order confiscation of the vehicle/conveyance
alleged to be used in excise offence, but from the angle of limited defences
available to owner of the vehicle before such authority of the executive.
50. The Hon’ble Supreme Court in the case of G.V. Sudhakar Rao
(supra) has held that the Forest Department may decide to prosecute the
accused and confiscation may be carried out pending criminal trial and there
is no illegality in the same. However, one very important aspect, which is to
be considered herein that the said judgment was in respect of provisions of
Andhra Pradesh Forest Act, 1967. The Hon’ble Supreme Court in the
aforesaid case has discussed in detail the provisions of Andhra Pradesh
Forest Act, 1967 and as per Section 2-C of the said Act, it has been provided
that no order of confiscation of any tool, rope, boat or vehicle etc. shall be
made once the owner proves to the satisfaction of the Authorized Officer that
the vehicle was used in carrying the property without the knowledge or
connivance of himself or his agent and that all reasonable and necessary
precautions were taken against such use. The relevant Section 44 (2-C) is as
under :-
“(2-C) Without prejudice to the provisions of sub-section (2-B), no
order of confiscation under sub-section (2-A) of any tool, rope, chain, boat
or vehicle shall be made if the owner thereof proves to the satisfaction of
the authorised officer that it was used in carrying the property without
his knowledge or connivance or the knowledge or connivance of his
agent, if any, or the person in charge of the tool, rope, chain, boat or
vehicle in committing the offence and that each of them had taken all
reasonable and necessary precautions against such use.”
(Emphasis supplied)
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
33
51. The situation therefore, again comes down to the position where
an owner is having a right to take a defence of he himself or his agent not
having knowledge of use of vehicle or connivance in the offence and having
taken precautions to prevent the misuse of such vehicles. As we have already
discussed above, once this defence is available to the owner, then parallel
proceedings can very well go on. Otherwise, analogy can be drawn from
Drugs and Cosmetics Act, 1940 that confiscation cannot be ordered and till a
finding is reached in criminal trial that vehicle was also involved in the
offence and when such trial is already conducted by the Court which also has
powers of confiscation, then there is no rationale for vesting power of
confiscation in some other authority. Such power is already there in Section
47 of the Excise Act of Madhya Pradesh with the Trial Court.
52. Reliance was also placed on the judgment of the Hon’ble
Supreme Court in the case of State of M.P. vs. Kallo Bai, (2017) 14 SCC
502. While going through the aforesaid judgment, we find that though the
Supreme Court has held that parallel confiscation proceedings under Madhya
Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam, 1969 can go on, but the
Supreme Court has considered in para 22 thereof that defence is available to
the owner of the vehicle to prove that they took all reasonable care and
precautions as per Section 15(5) of the Adhiniyam and that the offence was
committed without their knowledge or connivance. The Supreme Court has
held as under:-
“22. In view of the foregoing discussions, it is apparent that
Section 15 gives independent power to the authority concerned to
confiscate the articles, as mentioned thereunder, even before the
guilt is completely established. This power can be exercised by the
officer concerned if he is satisfied that the said objects were utilised
during the commission of a forest offence. A protection is provided
for the owners of the vehicles/articles, if they are able to prove
that they took all reasonable care and precautions as envisaged
under sub-section (5) of Section 15 of the Adhiniyam and the said
offence was committed without their knowledge or connivance.”
(Emphasis supplied)
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
34
Therefore, the case of Kallo Bai (supra) which was the sheet anchor
of submissions of the State, actually turns the tables against the State, and
does not help the State at all.
53. The next case relied by the State was the case of Mustafa vs.
State of U.P. and others (2021) 16 SCC 474. The said case relates to
confiscation of seized material under U.P. Excise Act, 1910. In the aforesaid
enactment of State of U.P., there is clear provision in Section 72(5)(b) that
the owner of the vehicle has a right to prove before the Collector that the
contraband goods were used without his knowledge or connivance and he
and his agent had taken all precautions against such use. The relevant
provision is as under:-
“(5)(a) No order of confiscation under this section shall be made
unless the owner thereof or the person from whom it is seized is given–
(i) a notice in writing informing him of the grounds on which such
confiscation is proposed;
(ii) an opportunity of making a representation in writing within
such reasonable time as may be specified in the notice; and
(iii) a reasonable opportunity of being heard in the matter.
(b) Without prejudice to the provisions of clause (a), no order
confiscating any animal, cart, vessel, or other conveyance shall be made
if the owner thereof proves to the satisfaction of the Collector that it was
used in carrying the contraband goods without the knowledge or
connivance of the owner, his agent, if any, and the person incharge of
the animal, cart, vessel or other conveyance and that each of them had
taken all reasonable and necessary precautions against such use.”
(Emphasis supplied)
Therefore, in this case also the enactment which was put to
interpretation of the Hon’ble Supreme Court had the right of defence of lack
of knowledge and connivance available to the owner of the vehicle, which is
not there in Excise Act herein.
54. Learned counsel for the State has also vehemently relied on the
judgment of the Hon’ble Supreme Court in the case of State of West Bengal
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
35
vs. Sujit Kumar Raha, (2004) 4 SCC 129. However, upon a closer scrutiny
we find that the aforesaid judgment is in fact, near to our conclusion, then to
the interpretation suggested by the State. In para 21 of the aforesaid
judgment, the Hon’ble Supreme Court considered the basic objective of
purposes of such provisions, which are engrafted with laudable object to
preserve national wealth or to prevent ecological damage or such other laws,
which are framed in the interest of society at large or to protect environment
or public order, public health etc. However, in para 26 of the aforesaid
judgment, the Hon’ble Supreme Court while considering the provisions of
Forest Act, 1927 as amended in State of West Bengal, held that opportunity
has to be granted to the owner of the vehicle so as to enable him to show
cause that the same has been used in the alleged crime without his knowledge
or connivance and that necessary precautions were taken for that purpose, for
which provisions are there in Section 59-A(2) of the Indian Forest Act, 1927
as applicable in State of West Bengal. The Supreme Court has held as under:-
“26. An order of confiscation of forest produce in a proceeding
under Section 59-A of the Act would not amount either to penalty or
punishment. Such an order, however, can be passed only in the event a
valid seizure is made and the authorized officer satisfies himself as regards
ownership of the forest produce in the State as also commission of a forest
offence. An order of confiscation is not to be passed automatically, and in
terms of sub-section (3) of Section 59-A a discretionary power has been
conferred upon the authorized officer in relation to a vehicle. Apart from
the ingredients which are required to be proved in terms of sub-section (3)
of Section 59-A by reason of the proviso appended to Section 59-B, a
notice is also required to be issued to the owner of the vehicle and
furthermore in terms of sub-section (2) thereof an opportunity has to be
granted to the owner of the vehicle so as to enable him to show that the
same has been used in carrying forest produce without his knowledge or
connivance and by necessary implication precautions therefore have
been taken.”
(Emphasis supplied)
55. Learned counsel for the State and Shri Amitabh Gupta,
Advocate were unable to bring to the notice of this Court any single
provision where confiscation can be ordered prior to conviction by carrying
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
36
out parallel proceedings by an authority of the State (and not criminal Court
seized of trial) and the defence of lack of knowledge and connivance is not
made available to owner of the vehicle, nor any judgment of the Hon’ble
Supreme Court, wherein the Hon’ble Supreme Court has held that
confiscation can be ordered prior to conviction in any such enactment
wherein defence has not been made available to owner of the vehicle in
parallel proceedings.
56. In the case of Abdul Vahab (supra), the Hon’ble Supreme
Court was considering the provisions of Cow Progeny Act. In the aforesaid
case, the Hon’ble Supreme Court though upheld that parallel proceedings for
confiscation can be carried out under the said act, but acquittal of the accused
in criminal trial has been held to be a relevant factor and once acquittal is
recorded in criminal case, therefore, it was held that the confiscation order is
required to be set aside. It is interesting to note that in the aforesaid judgment
passed by the Hon’ble Supreme Court, the earlier judgments of the Supreme
Court in the case of Madhukar Rao (both FB & SC) (supra) and Kallo Bai
(supra), having contradictory views were both taken into consideration.
However, we have already held about that even the case of Kallo Bai (supra)
does not help the State in the present case, because in that case the provisions
were different and defence was made available to the owner, which is not
there in Excise Act. The Hon’ble Supreme Court in the case of Abdul Vahab
(supra) held as under:-
“16. We find support for the above view, from the ratio in State of
M.P. v. Madhukar Rao [State of M.P. v. Madhukar Rao, (2008) 14 SCC
624 : (2009) 2 SCC (Cri) 1140] , wherein this Court while adverting to the
provisions of another legislation i.e. the Wild Life (Protection) Act, 1972
opined that the power of the Magistrate to order interim release of
confiscated vehicle under Section 451CrPC, is not affected. The Court
reasoned that withdrawal of the power of interim release conferred on the
authorities under Section 50(2), cannot be construed to mean a bar on the
powers of the Magistrate under Section 451CrPC. It was next noted that a
clear intention to the contrary can be found in the Act in Section 50(4)
under which, any person detained, or things seized shall be taken before a
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
37Magistrate to be dealt with according to law (and not according to the
provisions of the Act).
17. Pertinently, State of M.P. v. Madhukar Rao [State of
M.P. v. Madhukar Rao, (2008) 14 SCC 624 : (2009) 2 SCC (Cri) 1140]
affirmed the decision of the High Court in Madhukar Rao v. State of
M.P. [Madhukar Rao v. State of M.P., 1999 SCC OnLine MP 322 : (2000)
1 MP LJ 289] , wherein D.M. Dharmadhikari, J., writing for the Full
Bench, opined that the provision of Section 39(1)(d) of the Wildlife
(Protection) Act, 1972, providing for absolute vesting of seized property
with the State Government, without a finding by the competent court that
the property was being used for the commission of an offence, runs afoul of
the constitutional provisions. It is succinctly observed [Madhukar
Rao v. State of M.P., 1999 SCC OnLine MP 322 : (2000) 1 MP LJ 289] in
para 18 : (Madhukar Rao case [Madhukar Rao v. State of M.P., 1999 SCC
OnLine MP 322 : (2000) 1 MP LJ 289] , SCC OnLine MP)
“18. … If the argument on behalf of the State is accepted a
property seized on accusation would become the property of the State and
can never be released even on the compounding of the offence. The
provisions of clause (d) of Section 39 have to be reasonably and
harmoniously construed with other provisions of the Act and the Code
which together provide a detailed procedure for the trial of the offences. If,
as contended on behalf of the State, seizure of property merely on
accusation would make the property to be of the Government, it would
have the result of depriving an accused of his property without proof of his
guilt. On such interpretation clause (d) of Section 39(1) of the Act would
suffer from the vice of unconstitutionality. The interpretation placed by the
State would mean that a specified officer under the Act merely by seizure of
property of an accused would deprive him of his property which he might
be using for his trade, profession or occupation. This would be serious
encroachment on the fundamental right of a citizen under Article 19(1)(g)
of the Constitution to carry on his trade, occupation or business.”
18. By reason of an order of confiscation, a person is deprived of
the enjoyment of his property. Article 300-A of the Constitution provides
that no person shall be deprived of his property save by authority of law.
Therefore, to deprive any person of their property, it is necessary for the
State, inter alia, to establish that the property was illegally obtained or is
part of the proceeds of crime or the deprivation is warranted for public
purpose or public interest.
19. At this stage, we may usefully refer to this Court’s opinion
in State of W.B. v. Sujit Kumar Rana [State of W.B. v. Sujit Kumar Rana,
(2004) 4 SCC 129 : 2004 SCC (Cri) 984] . Here it was emphasised on the
need to maintain balance between statutes framed in public interest such
as the Forest Act, 1927 (and the relevant insertions under W.B. Act 22 of
1988) and the consequential proceedings, depriving a person of his
Signature Not Verified
property, arising therefrom. It was accordingly observed that “commission
Signed by: 453
Signing time: 22-04-
2025 17:40:59
38
of an offence” is one of the requisite ingredients for passing an order of
confiscation and an order of confiscation should not be passed
automatically. The relevant passage is reproduced below : (SCC pp. 138-
39, para 26)
“26. An order of confiscation of forest produce in a proceeding
under Section 59-A of the Act would not amount either to penalty or
punishment. Such an order, however, can be passed only in the event a
valid seizure is made and the authorised officer satisfies himself as regards
ownership of the forest produce in the State as also commission of a forest
offence. An order of confiscation is not to be passed automatically, and in
terms of sub-section (3) of Section 59-A a discretionary power has been
conferred upon the authorised officer in relation to a vehicle. Apart from
the ingredients which are required to be proved in terms of sub-section (3)
of Section 59-A by reason of the proviso appended to Section 59-B, a
notice is also required to be issued to the owner of the vehicle and
furthermore in terms of sub-section (2) thereof an opportunity has to be
granted to the owner of the vehicle so as to enable him to show that the
same has been used in carrying forest produce without his knowledge or
connivance and by necessary implication precautions therefor have been
taken.”
20. Insofar as the submission of the State Counsel that the burden
of proof is on the truck owner in the process of confiscation, we must
observe that Section 13-A of the 2004 Act, which shifts the burden of proof,
is not applicable for the confiscation proceedings but for the process of
prosecution. By virtue of Section 13-A of the 2004 Act, the burden on the
State authority to legally justify the confiscation order, cannot be shifted to
the person facing the confiscation proceeding. The contention to the
contrary of the State’s counsel, is accordingly rejected.
21. In the present case, the appellant’s truck was confiscated on
account of the criminal proceedings alone and therefore, under the
applicable law, the vehicle cannot be withheld and then confiscated by the
State, when the original proceedings have culminated into acquittal. It is
also not the projected case that there is a likelihood that the appellant’s
truck will be used for committing similar offence.
22. It should be noted that the objective of the 2004 Act is punitive
and deterrent in nature. Section 11 of the 2004 Act and Rule 5 of the M.P.
Govansh Vadh Pratishedh Rules, 2012, allows for seizure and confiscation
of vehicle, in case of violation of Sections 4, 5, 6, 6-A and 6-B. The
confiscation proceeding, before the District Magistrate, is different from
criminal prosecution. However, both may run simultaneously, to facilitate
speedy and effective adjudication with regard to confiscation of the means
used for committing the offence. The District Magistrate has the power to
independently adjudicate cases of violations under Sections 4, 5, 6, 6-A
and 6-B of the 2004 Act and pass order of confiscation in case of violation.
Signature Not Verified
But in a case where the offender/accused are acquitted in the criminal
Signed by: 453
Signing time: 22-04-
2025 17:40:59
39
prosecution, the judgment given in the criminal trial should be factored in
by the District Magistrate while deciding the confiscation proceeding.
23. In the present case, the order of acquittal was passed as
evidence was missing to connect the accused with the charges. The
confiscation of the appellant’s truck when he is acquitted in the criminal
prosecution, amounts to arbitrary deprivation of his property and violates
the right guaranteed to each person under Article 300-A. Therefore, the
circumstances here are compelling to conclude that the District
Magistrate’s order of confiscation (ignoring the trial court’s judgment of
acquittal), is not only arbitrary but also inconsistent with the legal
requirements.”
57. From the aforesaid, it is clear that the Hon’ble Supreme Court
even though upheld that parallel proceedings can be carried out, but further
held that if order of acquittal is passed, then confiscation would amount to
arbitrary deprivation of property and violates the right guaranteed to person
under Article 300-A of the Constitution of India. The provisions of Cow
Progeny Act are being discussed in detail later on in this judgment.
58. We may also take note of the recent judgment of the Supreme
Court in the case of Bishwajit Dey (supra) wherein the Hon’ble Supreme
Court has very recently considered the law relating to confiscation of
vehicles and other material during pendency of criminal trial. This case was
in relation to NDPS Act, wherein no parallel mechanism is laid down for
confiscation of vehicles etc. during trial. However, the basic objectives of
seizure so also in what cases the owner of vehicle would be made as accused
and otherwise, etc. were all considered in detail by the Supreme Court.
59. In the aforesaid case, the Supreme Court held that Courts will
lean towards a construction of statute, which would produce a just result
rather than absurd or unjust result. The Supreme Court further considered an
example that if an accused is carrying heroine in an aeroplane then whether
the entire aeroplane would be seized till the trial is over and held that in such
cases, the Courts should consider releasing the vehicle on interim custody. It
was further held in the said case in para 29 that seizure of contraband can
take place from a conveyance in broadly four circumstances as under:-
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
40
(i) When the owner of the vehicle is the person from whom the
possession of contraband is recovered.
(ii) When the contraband is recovered from the possession of the
agent of the owner like driver or cleaner.
(iii) When the vehicle was stolen by the accused and contraband is
recovered from such stolen vehicle.
(iv) Where contraband is seized/recovered from a third-party
occupant of the vehicle without owner’s knowledge and connivance.
60. The Hon’ble Supreme Court held that in the first two scenarios,
the owner of the vehicle and/or his agent would necessarily be arrayed as an
accused while in third and fourth scenarios, the owner of the vehicle and/or
his agent would not be arrayed as an accused.
61. The Full Bench of this Court in case of Madhukar Rao (FB)
(supra) reported in 2000(1) MPLJ 289 had the occasion to consider the
provisions of Wild Life (Protection) Act, 1972 and the Full Bench held that
before confiscation by a Court of law declaration of property being a property
of the State or the Central Government would amount to illegal deprivation
of property and encroachment on the fundamental rights of a citizen under
Article 19(1)(g) of the Constitution of India to carry on his trade, occupation
or business. The Full Bench has held as under:-
“17. If the interpretation, as has been sought to be put on behalf of
the State on Clause (d) of Sub-section (1) of Section 39, is accepted, every
property mentioned therein including a vehicle seized merely on
accusation or suspicion would become property of the State and that would
be the result even though in the trial ultimately the Magistrate finds that no
offence has been committed and acquits the accused. In our considered
opinion the property seized under Section 50 of the Act from an alleged
offender cannot become property of the State under Clause (d) of Section
39(1) unless there is a trial and a finding reached by the competent Court
that the Property was used for committing an offence under the Act. If the
seizure of a property was enough to declare it as the property of the
Government, there was no necessity to provide under Sub-section (2) of
Section 51 that on proof of commission of the offence, the properties
including vehicle, vessel, or weapon used in the commission of the offence
would be forfeited to the State Government. We do not find any dichotomy
or conflict in the provisions under Section 39(1)(d) and Section 51(2) of
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
41the Act. Properties including vessel can be seized on accusation of
commission of an offence under the Act and if the offender is available and
is arrested, on proof of his guilt, the property seized from him and used in
commission of the offence is liable to forfeiture to the State under Section
51(2) of the Act. Similarly every property seized and is held to have been
used for committing an offence by competent Court, whether the offender is
available or not for punishment, would be declared to be the property of
the State by virtue of the provisions contained under Section 39(1)(d) of
the Act. We find that Section 39 contained in Chapter-V is sort of a
residuary provision to make all properties seized and found to be used in
commission of an offence as properties of the State Government
irrespective of the fact whether they are liable to forfeiture at the
conclusion of the trial under Sub-section (2) and Section 31 of the Act. A
situation can be envisaged where the offence is proved to have been
committed but the owner of the property or the offender himself is not
available for prosecution. In that situation by virtue of Clause (d) of
Section 39 of the Act the property would become the property of the State
without any requirement of passing an order of forfeiture in a trial by the
Criminal Court in accordance with Sub-section (2) of Section of the Act.
18. Examination of the provisions contained in Section 54
providing for power to compound offences under the Act also leads to the
same conclusion that every property seized irrespective of proof of
commission of the offence and finding in that respect by the Criminal
Court, would not become property of the State. Section 54 empowers the
Authorities to compound the offences and release the seized properties in
favour of the person suspected of the commission of the offence. If the
argument on behalf of the State is accepted a property seized on
accusation would become the property of the State and can never be
released even on the compounding of the offence. The provisions of Clause
(d) of Section 39 have to be reasonably and harmoniously construed with
other provisions of the Act and the Code which together provide a detailed
procedure for the trial of the offences. If, as contended on behalf of the
State, seizure of property merely on accusation would make the property to
be of the Government, it would have the result of depriving an accused of
his property without proof of his guilt. On such interpretation Clause (d) of
Section 39(1) of the Act would suffer from the vice of unconstitutionality.
The interpretation placed by the State would mean that a specified officer
under the Act merely by seizure of property of an accused would deprive
him of his property which he might be using for his trade, profession or
occupation. This would be a serious encroachment on the fundamental
right of a citizen under Article 19(1)(g) of the Constitution to carry on his
trade, occupation or business. The power thus would be exercised by an
Executive Officer and without any proof of commission of an offence. Such
arbitrary and uncannalised powers cannot be allowed to any Executive
Authority. That would be against basic structure of the Constitution. The
Signature Not Verified
Constitution envisages trial of offences by an independent judiciary. An
Signed by: 453
Signing time: 22-04-
2025 17:40:59
42
interpretation which would render Clause (d) of Section 39(1) to be
unconstitutional has to be eschewed and interpretation which makes it
constitutional should be preferred. See the following observations of the
Supreme Court in Kedarnath v. State of Bihar (AIR 1962 SC 955) :
“It is well settled that if certain provisions of law, construed in one
way, would make them consistent with the Constitution, and another
interpretation would render them unconstitutional, the Court would lean in
favour of the former construction.”
62. The Full Bench held that the provisions of Wild Life
(Protection) Act amount to vesting of property on mere seizure. In this case
before us, though technically and theoretically the provisions of Excise Act
do not provide for automatic vesting of seized property in the State and a
confiscation order is required to be passed but by not giving right to the
owner to raise defence of vehicle being used without his knowledge or
connivance and he and his agents having taken due care and precautions
before the vehicle was used in such manner, then the provisions of hearing
and adjudication by the Collector even before trial is concluded by the Court,
are mere formality and are not real provisions but are only cosmetic
provisions. Therefore, the said provisions are practically no different from the
provisions of Wild Life Protection Act, 1972 which provide for automatic
vesting of seized property in the State or Central Government.
63. The aforesaid judgment in the case of Madhukar Rao (Full
Bench) was tested by the State Government before the Hon’ble Supreme
Court in the case of State of M.P. Vs. Madhukar Rao reported in (2008) 14
SCC 624. The Supreme Court examined the relevant provisions of Wild Life
(Protection) Act, 1972 and the amendment carried out therein and ultimately
the Supreme Court held that the seized property becoming a Government
property would come into play only after a Court of competent jurisdiction
finds the accusation and allegations made against the accused true and
records a finding that seized articles were infact used in the commission of
offence. The Supreme Court has held as under:-
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
43
“23. Learned counsel submitted that Section 39(1)(d) of the Act
made the articles seized under Section 50(1)(c) of the Act as government
property and, therefore, there was no question of their release. The
submission was carefully considered by the Full Bench of the High Court
and on an examination of the various provisions of the Act it was held that
the provision 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 the finding that the seized article
was, as a matter of fact, used in the commission of offence. Any attempt to
operationalise Section 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
unconstitutional and invalid. In our opinion, the High Court has taken a
perfectly correct view and the provisions of Section 39(1)(d) cannot be
used against exercise of the magisterial power to release the vehicle during
pendency of the trial.”
64. The concept of property in relation to Article 300-A was
explained in detail by the Hon’ble Apex Court in the case of Jilubhai
Nanbhai Khachar vs. State of Gujarat, 1995 Supp (1) SCC 596 in the
following terms :-
42. Property in legal sense means an aggregate of rights which are
guaranteed and protected by law. It extends to every species of valuable
right and interest, more particularly, ownership and exclusive right to a
thing, the right to dispose of the thing in every legal way, to possess it, to
use it, and to exclude everyone else from interfering with it. The dominion
or indefinite right of use or disposition which one may lawfully exercise
over particular things or subjects is called property. The exclusive right of
possessing, enjoying, and disposing of a thing is property in legal
parameters. Therefore, the word ‘property’ connotes everything which is
subject of ownership, corporeal or incorporeal, tangible or intangible,
visible or invisible, real or personal; everything that has an exchangeable
value or which goes to make up wealth or estate or status. Property,
therefore, within the constitutional protection, denotes group of rights
inhering citizen’s relation to physical thing, as right to possess, use and
dispose of it in accordance with law. In Ramanatha Aiyar’s The Law
Lexicon, Reprint Edn., 1987, at p. 1031, it is stated that the property is the
most comprehensive of all terms which can be used, inasmuch as it is
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
44indicative and descriptive of every possible interest which the party can
have. The term property has a most extensive signification, and,
according to its legal definition, consists in free use, enjoyment, and
disposition by a person of all his acquisitions, without any control or
diminution, save only by the laws of the land. In Dwarkadas Shrinivas
case [1950 SCC 833 : 1950 SCR 869 : AIR 1951 SC 41] this Court gave
extended meaning to the word property. Mines, minerals and quarries are
property attracting Article 300-A.
(Emphasis supplied)
65. It is now settled in law that Constitutional rights are not
absolute, and even the fundamental rights under Article 19(1) can be subject
to limitations under Article 19 (6) which is as under :-
(6) Nothing in sub-clause (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the
State from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred
by the said sub-clause, and, in particular, [nothing in the said sub-
clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to,–
(i) the professional or technical qualifications necessary for
practising any profession or carrying on any occupation,
trade or business; or
(ii) the carrying on by the State, or by a corporation owned
or controlled by the State, of any trade, business, industry or
service, whether to the exclusion, complete or partial, of
citizens or otherwise.
The exercise which, therefore, is to be undertaken in these cases
relating to constitutional validity of Section 47-A, is to find out as to whether
the limitation of constitutional rights is for a purpose that is reasonable and
necessary in a democratic society and such an exercise involves the weighing
up of competitive values, and ultimately an assessment based on
Signature Not Verified
proportionality i.e. balancing of different interests.
Signed by: 453
Signing time: 22-04-
2025 17:40:59
45
66. The law relating to examining a statute from the touchstone of
proportionality was considered in detail by the Constitution Bench of
Hon’ble Supreme Court in the celebrated judgement of Modern Dental
College & Research Centre v. State of M.P., (2016) 7 SCC 353. It was
held as under :-
62. It is now almost accepted that there are no absolute
constitutional rights [Though, debate on this vexed issue still
continues and some constitutional experts claim that there are
certain rights, albeit very few, which can still be treated as
“absolute”. Examples given are:(a) Right to human dignity which is
inviolable,(b) Right not to be subjected to torture or to inhuman or
degrading treatment or punishment.Even in respect of such rights,
there is a thinking that in larger public interest, the extent of their
protection can be diminished. However, so far such attempts of the
States have been thwarted by the judiciary.] and all such rights are
related. As per the analysis of Aharon Barak [ Aharon
Barak, Proportionality: Constitutional Rights and Their
Limitation (Cambridge University Press 2012).] , two key elements
in developing the modern constitutional theory of recognising
positive constitutional rights along with its limitations are the
notions of democracy and the rule of law. Thus, the requirement of
proportional limitations of constitutional rights by a sub-
constitutional law i.e. the statute, is derived from an interpretation
of the notion of democracy itself. Insofar as the Indian Constitution
is concerned, democracy is treated as the basic feature of the
Constitution and is specifically accorded a constitutional status that
is recognised in the Preamble of the Constitution itself. It is also
unerringly accepted that this notion of democracy includes human
rights which is the cornerstone of Indian democracy. Once we
accept the aforesaid theory (and there cannot be any denial
thereof), as a fortiori, it has also to be accepted that democracy is
based on a balance between constitutional rights and the public
interests. In fact, such a provision in Article 19 itself on the one
hand guarantees some certain freedoms in clause (1) of Article 19
and at the same time empowers the State to impose reasonable
restrictions on those freedoms in public interest. This notion
accepts the modern constitutional theory that the constitutional
rights are related. This relativity means that a constitutional
licence to limit those rights is granted where such a limitation will
be justified to protect public interest or the rights of others. This
phenomenon–of both the right and its limitation in the
Constitution–exemplifies the inherent tension between
democracy’s two fundamental elements. On the one hand is the
right’s element, which constitutes a fundamental component of
substantive democracy; on the other hand is the people element,
limiting those very rights through their representatives. These two
constitute a fundamental component of the notion of democracy,
though this time in its formal aspect. How can this tension be
Signature Not Verified
resolved? The answer is that this tension is not resolved by
Signed by: 453
Signing time: 22-04-
2025 17:40:59
46
eliminating the “losing” facet from the Constitution. Rather, the
tension is resolved by way of a proper balancing of the competing
principles. This is one of the expressions of the multi-faceted nature
of democracy. Indeed, the inherent tension between democracy’s
different facets is a “constructive tension”. It enables each facet to
develop while harmoniously coexisting with the others. The best
way to achieve this peaceful coexistence is through balancing
between the competing interests. Such balancing enables each facet
to develop alongside the other facets, not in their place. This
tension between the two fundamental aspects–rights on the one
hand and its limitation on the other hand–is to be resolved by
balancing the two so that they harmoniously coexist with each
other. This balancing is to be done keeping in mind the relative
social values of each competitive aspects when considered in
proper context.
63. In this direction, the next question that arises is as to what
criteria is to be adopted for a proper balance between the two
facets viz. the rights and limitations imposed upon it by a statute.
Here comes the concept of “proportionality”, which is a proper
criterion. To put it pithily, when a law limits a constitutional right,
such a limitation is constitutional if it is proportional. The law
imposing restrictions will be treated as proportional if it is meant
to achieve a proper purpose, and if the measures taken to achieve
such a purpose are rationally connected to the purpose, and such
measures are necessary. This essence of doctrine of proportionality
is beautifully captured by Dickson, C.J. of Canada
in R. v. Oakes [R. v. Oakes, (1986) 1 SCR 103 (Can SC)] , in the
following words (at p. 138):
“To establish that a limit is reasonable and demonstrably
justified in a free and democratic society, two central
criteria must be satisfied. First, the objective, which the
measures, responsible for a limit on a Charter right or
freedom are designed to serve, must be “of” sufficient
importance to warrant overriding a constitutional protected
right or freedom … Second … the party invoking Section 1
must show that the means chosen are reasonable and
demonstrably justified. This involves “a form of
proportionality test…” Although the nature of the
proportionality test will vary depending on the
circumstances, in each case courts will be required to
balance the interests of society with those of individuals and
groups. There are, in my view, three important components
of a proportionality test. First, the measures adopted must
be … rationally connected to the objective. Second, the
means … should impair “as little as possible” the right or
freedom in question … Third, there must be a
proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom,
and the objective which has been identified as of “sufficient
importance”. The more severe the deleterious effects of a
measure, the more important the objective must be if the
measure is to be reasonable and demonstrably justified in a
Signature Not Verified
free and democratic society.”
Signed by: 453
Signing time: 22-04-
2025 17:40:59
47
64. The exercise which, therefore, is to be taken is to find out as to
whether the limitation of constitutional rights is for a purpose that is
reasonable and necessary in a democratic society and such an
exercise involves the weighing up of competitive values, and
ultimately an assessment based on proportionality i.e. balancing of
different interests.
65. We may unhesitatingly remark that this doctrine of
proportionality, explained hereinabove in brief, is enshrined in
Article 19 itself when we read clause (1) along with clause (6)
thereof. While defining as to what constitutes a reasonable
restriction, this Court in a plethora of judgments has held that the
expression “reasonable restriction” seeks to strike a balance between
the freedom guaranteed by any of the sub-clauses of clause (1) of
Article 19 and the social control permitted by any of the clauses (2) to
(6). It is held that the expression “reasonable” connotes that the
limitation imposed on a person in the enjoyment of the right should
not be arbitrary or of an excessive nature beyond what is required in
the interests of public. Further, in order to be reasonable, the
restriction must have a reasonable relation to the object which the
legislation seeks to achieve, and must not go in excess of that object
(see P.P. Enterprises v. Union of India [P.P. Enterprises v. Union of
India, (1982) 2 SCC 33 : 1982 SCC (Cri) 341] ). At the same time,
reasonableness of a restriction has to be determined in an objective
manner and from the standpoint of the interests of the general public
and not from the point of view of the persons upon whom the
restrictions are imposed or upon abstract considerations (see Mohd.
Hanif Quareshi v. State of Bihar [Mohd. Hanif Quareshi v. State of
Bihar, AIR 1958 SC 731 : 1959 SCR 629] ). In M.R.F. Ltd. v. State of
Kerala [M.R.F. Ltd. v. State of Kerala, (1998) 8 SCC 227 : 1999 SCC
(L&S) 1] , this Court held that in examining the reasonableness of a
statutory provision one has to keep in mind the following factors:
(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive nature so
as to go beyond the requirement of the interest of the general public.
(3) In order to judge the reasonableness of the restrictions, no
abstract or general pattern or a fixed principle can be laid down so as
to be of universal application and the same will vary from case to
case as also with regard to changing conditions, values of human
life, social philosophy of the Constitution, prevailing conditions and
the surrounding circumstances.
(4) A just balance has to be struck between the restrictions
imposed and the social control envisaged by Article 19(6).
(5) Prevailing social values as also social needs which are
intended to be satisfied by the restrictions.
(6) There must be a direct and proximate nexus or reasonable
connection between the restrictions imposed and the object sought to
be achieved. If there is a direct nexus between the restrictions, and
the object of the Act, then a strong presumption in favour of the
constitutionality of the Act will naturally arise.
(Emphasis supplied)
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
48
67. We, when test the impugned Section 47-A on the touchstone of
principle of proportionality, see that the social and public interest projected
before us is to carve out a preventive and deterrent measure to curb illegal
smuggling of liquor and menace of spurious liquor. There is no general
prohibition on liquor in Madhya Pradesh, it being a obnoxious trade carried
out by the State under authority and license granted by the State to its
contractors at regulated prices and unlicensed liquor amounts to loss of
revenue to State apart from harming the society inasmuch supply becomes
unregulated or at extreme end, there may be grave cases of spurious liquor or
one unfit for human consumption, for which different provisions are
incorporated in Excise Act, inviting very heavy penalties and sentences.
However, as already noted by us above, though technically and theoretically
the provisions of Excise Act do not provide for automatic vesting of seized
property in the State and a confiscation order is required to be passed but by
not giving the owner right to raise defence of vehicle being used without his
knowledge or connivance and he and his agents having taken due care and
precautions before the vehicle was used in such manner, then the provisions
of hearing and adjudication by the Collector even before trial is concluded by
the Court, are mere formality and are not real provisions but are only
cosmetic provisions.
68. We have also taken note of the position that when the
confiscating authority would be the Court trying the offence, then all the facts
shall be before the Court at the time of confiscation and the Court can take an
appropriate decision whether to pass order for confiscation or not. The same
power is given in section 46 and 47 of the Excise Act to the trial Court trying
the offence, and though defence of lack of knowledge and connivance is not
given, but when the Court would have tried the offence, it would have all the
facts before it, and can pass an appropriate order for confiscation or
otherwise. That power would be proportionate and reasonable. However, in
the present case, what is under challenge is, power given to Executive (and
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
49
not to a judicial authority i.e. Trial Court) to pass order for confiscation even
during pendency of trial, and not opening the defence of lack of knowledge
and connivance to the owner of the vehicle. This power, in our considered
opinion, does not amount to a valid power within the limits of authority set
out under Article 19 (6) of the Constitution of India, and amounts to giving
away a disproportionate power to the Executive wing of the State, violating
the fundamental right guaranteed by Article 19(1)(g) and Constitutional right,
conferred by Article 300-A, and is therefore, liable to be interfered by this
Court. It being a disproportionate legislation violating Constitutional
provisions, Section 47-A of the M.P. Excise Act 1915 deserves to be and is
hereby declared ultra-vires Articles 19(1)(g) and 300-A of the
Constitution of India. As a necessary consequence thereto, Section 47-D
would become inoperative in all cases where confiscation orders have not
been passed as yet, having rendered superfluous.
69. The judgment of the Full Bench and of the Hon’ble Supreme
Court in the case of Madhukar Rao (supra), as we have already held above,
would be relevant to the scheme of Excise Act also because here the defence
of lack of knowledge and connivance is not available to the owner of the
vehicle. Learned counsel for the State had vehemently relied on the judgment
of the Full Bench of this Court in the case of Shrish Agrawal Vs. State of
M.P. and another reported in 2003 ILR (MP) 579 by which the Full Bench
of this Court upheld the constitutionality of vires of Section 47-A to 47-D of
Excise Act. We have found the said judgement to be per incuriam, for the
reasons being set out infra.
70. We have gone through the said judgment in case of Shrish
Agrawal (supra). On one hand this judgment was vehemently relied by the
State and on the other hand this judgment was sought to be distinguished by
the counsel for the petitioners on the ground that this was rendered later to
the judgment of the Full Bench in the case of Madhukar Rao (FB) (supra)
and Madhukar Rao (FB) has not been taken into consideration. Further that
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
50
once Madhukar Rao (FB) has been affirmed by the Supreme Court
therefore, this judgment of Full Bench in case of Shrish Agrawal (supra)
has to give way to the proposition of law as held in the case of Madhukar
Rao (SC) later by the Supreme Court.
71. In the aforesaid judgment of Shirish Agrawal (supra), the Full
Bench has noted the position that there is an adjudication mechanism in
Sections 47-A to 47-D of Excise Act, there is a power of revision to the Court
of Sessions and if the Court of Sessions finds any illegality in the order of
confiscating authority or the appellate authority, it may confirm, reverse or
modify the said order. The Full Bench while upholding the constitutionality
of Sections 47-A to 47-D has held as under:-
“Sections 47-A and 47-D have been held by both the learned
Judges of the Division Bench to be intravires not offending any provision
of the Constitution. In our view also these provisions do not suffer from the
vice of unconstitutionality.”
72. Upon perusal of the said judgment we find that issue that lack of
knowledge and connivance of owner of property being not made available to
the owner of the property in confiscation proceedings before the Collector
was not placed before the Full Bench and the argument was neither placed
nor considered by the Full Bench. The Full Bench decided the issue as two
judges of the Division Bench were unanimous as to the validity of Sections
47-A and 47-D of the Excise Act, but one of the judges held that the non-
conferral of power of stay on Revisional Court to be arbitrary and
unreasonable. The Full Bench in Shrish Agrawal (supra) concurred with the
unanimous conclusion of the Division Bench as to vailidity of Sections 47-A
and 47-D and thereafter, the Full Bench proceeded to examine
constitutionality of Section 47-C in detail which relates to powers of
revisional Court i.e. Sessions Court. The Full Bench did not strike down, but
read-down Section 47-C relating to powers of the Revisional Court and held
that the Revisional Court will have same powers to preserve the property in
question which is under confiscation and pass orders of interim nature for
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
51
custody and disposal etc. as the Appellate authority will have under Section
47-B.
73. On the issue of constitutionality of Section 47-A, all that was
considered and decided by the Full Bench was as under :-
“It is to be noticed that in the present case the collector has the
discretion to order the confiscation or not. That is clear from the
use of the word ‘may’ in sub-section (2) of Section 47-A . He has to
record in writing the grounds for ordering the confiscation. He has
also been empowered to pass an order of interim nature for the
custody and disposal etc. of the confiscated intoxicant, articles and
conveyance etc. ”as may appear to him to be necessary in the
circumstances of the case”. Thus, in a suitable case the conveyance
or other material can be placed on supratnama of any person till
the disposal of confiscation proceedings. The collector has to give
an opportunity of hearing to the affected person before passing any
order on the question of confiscation. In this connection it would be
useful to refer to the decision of the Supreme Court in State of M.P.
v. Azad Bharat finance Company. In that case it was found that
Section 11 (d) of the opium Act, 1878 as applicable to Madhya
Bharat provided that ”the property detailed hereinbelow shall be
confiscated”. Interpreting these words the Supreme Court held that
the confiscation is ”permissible and not obligatory”. It was
observed that the use of the word ”shall” does not always mean that
enactment is obligatory or mandatory; it depends upon the context
in which the word ‘shall’ occurs and the other circumstances. It has
been held that Section 11 of the Madhya Bharat Act is not
obligatory and it is for the Court to consider in each case where the
vehicle in which the contraband opium is found or is being
transported should be confiscated or not, having regard to all the
circumstances of the case. In Section 47-A of the Act, as already
discussed the word ”may” has been used instead of “shall”.
Therefore, the Collector also while considering the question of
confiscation under Section 47-A(2) of the Act would keep in mind
that the confiscation is not obligatory in all cases but the judicial
discretion conferred on him is to be exercised keeping in view all
the facts and circumstances of the case. This legal position is being
made clear as the learned counsel for the petitioner expressed an
apprehension that the collector may pass order of confiscation in
all the cases brought to him under Section 47-A of the Act.”
74. The Full Bench in Shrish Agrawal (supra) did not at all
consider the position that the Collector, who is not a judicial authority, and
who is not authorized to consider the defence of lack of knowledge and
connivance of the owner, whether the said provision would be
disproportionate, arbitrary and unconstitutional. The Full Bench in Shrish
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
52
Agrawal (supra) simply held that confiscation is not mandatory, and Section
47-A is only an enabling or permissive provision, and cannot be said to be a
mandatory one. However, as already considered by us above, when the
confiscating authority would be the Court trying the offence, then all the facts
shall be before the Court at the time of confiscation and the Court can take an
appropriate decision whether to pass order for confiscation or not. The same
power is given in section 46 and 47 of the Excise Act to the trial Court trying
the offence, and though defence of lack of knowledge and connivance is not
given, but when the Court would have tried the offence, it would have all the
facts before it, and can pass an appropriate order for confiscation or
otherwise. That power would be proportionate and reasonable. However, in
the present case, what is under challenge is, power given to Executive (and
not to a judicial authority) to pass order for confiscation even during
pendency of trial, and not opening the defence of lack of knowledge and
connivance to the owner of the vehicle. The Constitutionality and
proportionality of the provisions have to be seen from this angle that were
neither argued, nor considered by the Full Bench in Shrish Agrawal (supra).
As already noted above, the only case where similar provision has been
considered by the Supreme Court in the case of Azad Bharat (supra) was
where confiscation power was given to Trial Court under Opium Act 1878.
75. We have to consider that to what extent we are bound by the
decision in the case of Shrish Agrawal (supra), being a Bench of co-equal
strength and bound to observe and respect the earlier precedent on the well
established principle of stare decisis, as it was contended before us that in
case of disagreement, the matter needs to be referred to a even larger Bench
and should be placed before a Bench of 5 judges.
76. In the case of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, a
seven-judges Constitution Bench considered the principle of per incuriam as
under in majority view :-
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
53
47. In our opinion, we are not debarred from re-opening this
question and giving proper directions and correcting the error in
the present appeal, when the said directions on 16-2-1984, were
violative of the limits of jurisdiction and the directions have
resulted in deprivation of the fundamental rights of the appellant,
guaranteed by Articles 14 and 21 of the Constitution. The
appellant has been treated differently from other offenders, accused
of a similar offence in view of the provisions of the Act of 1952 and
the High Court was not a court competent to try the offence. It was
directed to try the appellant under the directions of this Court,
which was in derogation of Article 21 of the Constitution. The
directions have been issued without observing the principle of audi
alteram partem. It is true that Shri Jethmalani has shown us the
prayers made before the High Court which are at page 121 of the
paper-book. He argued that since the transfers have been made
under Section 407, the procedure would be that given in Section
407(8) of the Code. These directions, Shri Jethmalani sought to
urge before us, have been given in the presence of the parties and
the clarificatory order of 5-4-1985 which was made in the presence
of the appellant and his counsel as well as the counsel of the State
Government of Maharashtra, expressly recorded that no such
submission was made in connection with the prayer for grant of
clarification. We are of the opinion that Shri Jethmalani is not right
when he said that the decision was not made per incuriam as
submitted by the appellant. It is a settled rule that if a decision has
been given per incuriam the court can ignore it. It is also true that
the decision of this Court in the case of Bengal Immunity Co.
Ltd. v. State of Bihar [AIR 1955 SC 661 : (1955) 2 SCR 603, 623]
was not regarding an order which had become conclusive inter
partes. The court was examining in that case only the doctrine of
precedents and determining the extent to which it could take a
different view from one previously taken in a different case between
different parties.
(Emphasis supplied)
Even the minority view recognized that when a statutory provision is
ignored, the judgement will become per-incuriam, but it will continue to have
binding effect on atleast that case between those parties, though may not have
value as precedent for other cases. The minority view was as under :-
182. It is asserted that the impugned directions issued by the Five-
Judge Bench was per incuriam as it ignored the statute and the
earlier Chadha case [AIR 1966 SC 1418 : (1966) 2 SCR 678 : 1966
Cri LJ 1071] .
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
54
183. But the point is that the circumstance that a decision is
reached per incuriam, merely serves to denude the decision of its
precedent value. Such a decision would not be binding as a
judicial precedent. A co-ordinate Bench can disagree with it and
decline to follow it. A larger Bench can overrule such decision.
When a previous decision is so overruled it does not happen —
nor has the overruling Bench any jurisdiction so to do — that the
finality of the operative order, inter partes, in the previous
decision is overturned. In this context the word ‘decision’ means
only the reason for the previous order and not the operative order
in the previous decision, binding inter partes. Even if a previous
decision is overruled by a larger Bench, the efficacy and binding
nature, of the adjudication expressed in the operative order remains
undisturbed inter partes. Even if the earlier decision of the Five-
Judge Bench is per incuriam the operative part of the order cannot
be interfered within the manner now sought to be done. That apart
the Five-Judge Bench gave its reason. The reason, in our opinion,
may or may not be sufficient. There is advertence to Section 7(1) of
the 1952 Act and to the exclusive jurisdiction created thereunder.
There is also reference to Section 407 of the Criminal Procedure
Code. Can such a decision be characterised as one reached per
incuriam? Indeed, Ranganath Misra, J. says this on the point: (para
105)
“Overruling when made by a larger Bench of an earlier
decision of a smaller one is intended to take away the
precedent value of the decision without effecting the binding
effect of the decision in the particular case. Antulay,
therefore, is not entitled to take advantage of the matter
being before a larger Bench.”
(Emphasis supplied)
77. In the case of Punjab Land Development and Reclamation
Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682, a 5-
judges Constitutional bench held as under :-
44. An analysis of judicial precedent, ratio decidendi and the ambit of
earlier and later decisions is to be found in the House of Lords’ decision
in F.A. & A.B. Ltd. v. Lupton (Inspector of Taxes) [1972 AC 634 : (1971) 3
All ER 948] , Lord Simon concerned with the decisions in Griffiths v. J.P.
Harrison (Watford) Ltd. [1963 AC 1 : (1962) 1 All ER 909] and Finsbury
Securities Ltd. v. Inland Revenue Commissioner [(1966) 1 WLR 1402 :
(1966) 3 All ER 105] with their interrelationship and with the question
whether Lupton‘s case [1972 AC 634 : (1971) 3 All ER 948] fell with-in the
precedent established by the one or the other case, said: (AC p. 658)
“…what constitutes binding precedent is the ratio decidendi of a
case, and this is almost always to be ascertained by an analysis of
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
55the material facts of the case–that is, generally, those facts which
the tribunal whose decision is in question itself holds, expressly or
implicitly, to be material.”
78. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16
SCC it was held as under :-
19. It cannot be overemphasised that the discipline demanded by a
precedent or the disqualification or diminution of a decision on the
application of the per incuriam rule is of great importance, since
without it, certainty of law, consistency of rulings and comity of
courts would become a costly casualty. A decision or judgment can
be per incuriam any provision in a statute, rule or regulation,
which was not brought to the notice of the court. A decision or
judgment can also be per incuriam if it is not possible to reconcile
its ratio with that of a previously pronounced judgment of a co-
equal or larger Bench; or if the decision of a High Court is not in
consonance with the views of this Court. It must immediately be
clarified that the per incuriam rule is strictly and correctly
applicable to the ratio decidendi and not to obiter dicta. It is often
encountered in High Courts that two or more mutually
irreconcilable decisions of the Supreme Court are cited at the Bar.
We think that the inviolable recourse is to apply the earliest view as
the succeeding ones would fall in the category of per incuriam.
(Emphasis supplied)
79. In National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16
SCC 680, the Constitutional Bench considered and affirmed the judgement
of Sundeep Kumar Bafna (supra), and while recognizing that the general
principle is to follow the ratio of co-equal bench, held as under :-
28. In this context, we may also refer to Sundeep Kumar Bafna v. State
of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra,
(2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] which correctly lays
down the principle that discipline demanded by a precedent or the
disqualification or diminution of a decision on the application of the
per incuriam rule is of great importance, since without it, certainty of
law, consistency of rulings and comity of courts would become a costly
casualty. A decision or judgment can be per incuriam any provision
in a statute, rule or regulation, which was not brought to the notice
of the court. A decision or judgment can also be per incuriam if it is
not possible to reconcile its ratio with that of a previously
pronounced judgment of a co-equal or larger Bench. There can be
no scintilla of doubt that an earlier decision of co-equal Bench binds
the Bench of same strength. Though the judgment in Rajesh
case [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ)
Signature Not Verified 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] was
Signed by: 453
Signing time: 22-04-
2025 17:40:59
56delivered on a later date, it had not apprised itself of the law stated
in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9
SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] but had
been guided by Santosh Devi [Santosh Devi v. National Insurance
Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC
(Cri) 160 : (2012) 2 SCC (L&S) 167]. We have no hesitation that it is
not a binding precedent on the co-equal Bench.
(Emphasis supplied)
80. In Shah Faesal v. Union of India, (2020) 4 SCC 1, another
Constitution Bench held as under :-
29. In this context of the precedential value of a judgment rendered
per incuriam, the opinion of Venkatachaliah, J., in the seven-Judge
Bench decision of A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S.
Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372] assumes great
relevance : (SCC p. 716, para 183)
“183. But the point is that the circumstance that a decision
is reached per incuriam, merely serves to denude the
decision of its precedent value. Such a decision would not be
binding as a judicial precedent. A coordinate Bench can
disagree with it and decline to follow it. A larger Bench can
overrule such decision. When a previous decision is so
overruled it does not happen — nor has the overruling
Bench any jurisdiction so to do — that the finality of the
operative order, inter partes, in the previous decision is
overturned. In this context the word “decision” means only
the reason for the previous order and not the operative
order in the previous decision, binding inter partes. … Can
such a decision be characterised as one reached per
incuriam? Indeed, Ranganath Misra, J. says this on the
point : (para 105)
‘Overruling when made by a larger Bench of an
earlier decision of a smaller one is intended to take
away the precedent value of the decision without
effecting the binding effect of the decision in the
particular case. Antulay, therefore, is not entitled to
take advantage of the matter being before a larger
Bench.'”
31. Therefore, the pertinent question before us is regarding the application
of the rule of per incuriam. This Court while deciding Pranay Sethi
case [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 :
(2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , referred to an earlier
decision rendered by a two-Judge Bench in Sundeep Kumar Bafna v. State
of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16
SCC 623 : (2015) 3 SCC (Cri) 558] , wherein this Court emphasised upon
the relevance and the applicability of the aforesaid rule : (Sundeep Kumar
Bafna case [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC
623 : (2015) 3 SCC (Cri) 558] , SCC p. 642, para 19)
“19. It cannot be overemphasised that the discipline demanded by a
precedent or the disqualification or diminution of a decision on the
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
57application of the per incuriam rule is of great importance, since
without it, certainty of law, consistency of rulings and comity of
courts would become a costly casualty. A decision or judgment can
be per incuriam any provision in a statute, rule or regulation, which
was not brought to the notice of the court. A decision or judgment
can also be per incuriam if it is not possible to reconcile its ratio
with that of a previously pronounced judgment of a co-equal or
larger Bench; or if the decision of a High Court is not in
consonance with the views of this Court. It must immediately be
clarified that the per incuriam rule is strictly and correctly
applicable to the ratio decidendi and not to obiter dicta.”
81. We have already noted above that while discarding the
constitutionality of Section 47-A of the Excise Act, that the Full Bench in
Shrish Agrawal (supra) did not advert to the position that no defence can be
set up in the said provision in the matter of lack of knowledge or connivance
of the owner of the vehicle, and that since the proceedings are before the
Collector who is not seized of the trial of criminal case, therefore, the entire
facts would not be before the Collector which would automatically come to
notice of the Court of law during trial while trying the criminal offence. The
material provision having escaped the kind consideration of the earlier Full
Bench, we are of considered opinion, that the aforesaid judgement of the Full
Bench in Shrish Agrawal (supra), is per incuriam.
82. It is per incuriam for another reason, that the earlier judgement
of the Full Bench in Madhukar Rao (FB) (supra) which was delivered on
28.10.1999, in which the similar issues were considered by the Full Bench,
though in relation to another enactment i.e. Wildlife Protection Act 1972, but
same and similar issue of competence of confiscation was considered, was
not placed for consideration before the subsequent Full Bench in Shrish
Agrawal (supra), though decided much later i.e. on 10.3.2003. The
reasoning made by the earlier Full Bench in Madhukar Rao, if it had been
before the Full Bench in Shrish Agrawal, then the said Bench would have
certainly adverted to the reasonings made therein and given its reasons to
deviate from it by declaring it per incuriam or inapplicable for reasons
Signature Not Verified
deemed valid by the said Bench, or would have followed it. However, by not
Signed by: 453
Signing time: 22-04-
2025 17:40:59
58
considering the earlier judgement of co-equal bench, the subsequent Full
Bench in Shrish Agrawal (supra) cannot be said to have set out a binding
precedent in view of 5-judge Special Bench judgment of this Court in
Jabalpur Bus Operators Association Vs. State of Madhya Pradesh,
reported in 2003 (1) 513, and also in view of various judgements of the
Hon’ble Supreme Court that we have considered above. In case of Jabalpur
Bus Operators Association (supra), the Special Bench of 5 Judges held as
under :-
9. Having considered the matter with broader dimensions, we find that
various High Courts have given different opinion on the question involved.
Some hold that in case of conflict between two judgments on a point of law,
later decision should be followed; while others say that the Court should
follow the decision which is correct and accurate whether it is earlier or
later. There are High Courts which hold that decision of earlier Bench is
binding because of the theory of binding precedent and Article 141 of the
Constitution of India. There are also decisions which hold that Single
Judge differing from another Single Judge decision should refer the case to
Larger Bench, otherwise he is bound by it. Decisions which are rendered
without considering the decisions expressing contrary view have no value
as a precedent. But in our considered opinion, the position may be stated
thus-
With regard to the High Court, a Single Bench is bound by the
decision of another Single Bench. In case, he does not agree with
the view of the other Single Bench, he should refer the matter to the
Larger Bench. Similarly, Division Bench is bound by the judgment
of earlier Division Bench. In case, it does not agree with the view of
the earlier Division Bench, it should refer the matter to Larger
Bench. In case of conflict between judgments of two Division
Benches of equal strength, the decision of earlier Division Bench
shall be followed except when it is explained by the latter Division
Bench in which case the decision of later Division Bench shall be
binding. The decision of Larger Bench is binding on Smaller
Benches.
In case of conflict between two decisions of the Apex Court,
Benches comprising of equal number of Judges, decision of earlier
Bench is binding unless explained by the latter Bench of equal
strength, in which case the later decision is binding. Decision of a
Larger Bench is binding on smaller Benches. Therefore, the
decision of earlier Division Bench, unless distinguished by latter
Signature Not Verified Division Bench, is binding on the High Courts and the Subordinate
Signed by: 453
Signing time: 22-04-
2025 17:40:59
59
Courts. Similarly, in presence of Division Bench decisions and
Larger Bench decisions, the decisions of Larger Bench are binding
on the High Courts and the Subordinate Courts. No decision of
Apex Court has been brought to our notice which holds that in case
of conflict between the two decisions by equal number of Judges,
the later decision in binding in all circumstances, or the High
Courts and Subordinate Courts can follow any decision which is
found correct and accurate to the case under consideration. High
Courts and Subordinate Courts should lack competence to interpret
decisions of Apex Court since that would not only defeat what is
envisaged under Article 141 of the Constitution of India but also
militate hierarchical supremacy of Courts. The common thread
which runs through various decisions of Apex Court seems to be
that great value has to be attached to precedent which has taken the
shape of rule being followed by it for the purpose of consistency and
exactness in decisions of Court, unless the Court can clearly
distinguish the decision put up as a precedent or is per incuriam,
having been rendered without noticing some earlier precedents with
which the Court agrees. Full Bench decision in Balbir Singh‘s case
(supra) which holds that if there is conflict of views between the two
co-equal Benches of the Apex Court, the High Court has to follow
the judgment which appears to it to state the law more elaborately
and more accurately and in conformity with the scheme of the Act,
in our considered opinion, for reasons recorded in the preceding
paragraph of this judgment, does not lay down the correct law as to
application of precedent and is, therefore, over-ruled on this point.
Therefore, the judgment in case of Shrish Agrawal (supra) is per
incuriam for the aforesaid reason also. The matter of constitutionality of
Section 47-A was required to be examined from the touchstone of non-
availability of defence of lack of knowledge and connivance of the owner and
he having taken precautions to avoid use of vehicle for carrying the
contraband to examine whether non-grant of such defence makes the power
of confiscation practically mandatory in nature, so as to distinguish it with
earlier Full Bench in case of Madhukar Rao (FB) (supra), that the later Full
Bench did not do as the earlier Full Bench view was not placed for
consideration before the later Full Bench. We have already considered the
aforesaid issue in detail and have already reached to a conclusion as above
that the provision of Section 47-A is liable to be interfered with on ground of
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
60
violating principle of proportionality, and violating Articles 300-A as well as
19(1)(g) of the Constitution, and have declared it ultra-vires.
83. Thought most of the issues have already been dealt with by us
above, but some additional consideration is required to be made in relation to
Cow Progeny Act, which has been separately referred to the Full Bench by a
learned Single Judge of this Court.
84. In the Cow Progeny Act, the relevant provision for confiscation
is Section 11(5), which declares that in case of violation of Sections 4, 5, 6,
6-A, 6-B, the police shall be empowered to seize the vehicle and the District
Magistrate shall confiscate such vehicle. A provision of appeal and further
revision to Court of Session is also provided under the said Act by virtue of
Sections 11-A and 11-B thereof. The relevant provisions are as under:-
“4, Prohibition of slaughter of cow progeny.
No person shall slaughter or cause to be slaughtered or offer or
cause to be offered for slaughter of any cow progeny by any means.
5. Prohibition on possession and transport of beef.
No person shall have in his possession or shall transport beef of
any cow progeny slaughtered in contravention of the provisions of this
Act.]
6. Prohibition on transport of cow progeny for slaughter.
No person including transporter shall transport or offer for
transport or cause to be transported any cow progeny himself or by his
agent, servant or by any other person acting in his behalf within the State
or outside the State for the purpose of its slaughter in contravention of the
provisions of this Act or with the knowledge that it will be or is likely to be
so slaughtered.
6A. Prohibition of export of cow progeny and grant of permit.
(1) No person including transporter shall export or cause to be
exported any cow progeny himself or by his agent, servant or by any other
person acting in his behalf from any place of the State to any place outside
the State without permit as provided in subsection (2).
(2) The Competent Authority may grant a permit within seven days
on presenting application in this behalf, in such manner as may be
prescribed for export of cow progeny from Madhya Pradesh forSignature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
61agricultural of dairy farming purposes or for participation in a cattle fair
and like purposes except for the purpose of slaughter.
(3) Any person seeking permit under sub-section (2) aggrieved by
an order of the Competent Authority may make an application within thirty
days from the date of receipt of the order to the Divisional Commissioner,
and the Divisional Commissioner may upon such application call for the
examine the record of the case for the purpose of satisfying himself as to
the correctness, legality or propriety of any order and may pass such order
as it may deem just and proper and the order passed by the Divisional
Commissioner shall be final and shall not be called in question in any civil
court.
6B. Prohibition of transporting cow progeny via Madhya Pradesh
and grant of transit permit.
No person including transporter shall transport cow progeny via
Madhya Pradesh State and if any person including transporter wants to
transport any cow progeny from one State to other via Madhya Pradesh
State, then he shall take transit permit from Competent Authority in such
manner as may be prescribed.]
11. Power of entry, inspection, search and seizure.
(1) For the purpose of enforcing the provisions of this Act, the
Competent Authority of any person authorized by the Competent Authority
in writing in this behalf shall have power to enter and inspect any premises
within the local limits of his jurisdiction, where he has reason to believe
that an offence under this Act has been, is being or is likely to be
committed and shall take necessary action.
(2) Every person in occupation of any such premises as is specified
in subsection (1) shall allow the Competent Authority or any person
authorized by the Competent Authority in writing, such access to the
premises as he may require for the aforesaid purpose, and shall answer
any question put to him by the Competent Authority or the person
authorized, as the case may be, to the best of his knowledge and belief.
(3) Any police officer not below the rank of Head constable or any
person authorized in this behalf by Competent Authority may, with a view
to securing compliance of the provisions of Sections 4, 5, 6A and 6B or for
satisfying himself that the provisions of the said sections have been
complied with.
(a), stop, enter and search any vehicle used or intended to be used
for the export of cow progeny or beef;
(b) seize or authorize the seizure of cow progeny, in respect of
which he suspects that any provision of Sections 4, 5, 6, 6A and 6B has
been, is being or is about to be contravened, along with the vehicle in
which such cow progeny or beef are found and thereafter take or authorize
Signature Not Verified
the taking of all measures necessary for securing the-production of the cow
Signed by: 453
Signing time: 22-04-
2025 17:40:59
62
progeny and vehicle so seized, in a court and for their safe custody
pending the trial.
(4) The provision of Section 100 of the Code of Criminal
Procedure, 1973 (No. 2 of 1974) relating to search and seizure shall, so
far as may be, apply to searches and seizures under this Section.
(5) In case of any violation of Sections 4, 5, 6, 6A and 6B, the
police shall be empowered to seize the vehicle, cow progeny and beef, and
the District Magistrate shall confiscate such vehicles, cow progeny and
beef in such manner as may be prescribed.
11A. Appeal against order of confiscation.
(1) Any person aggrieved by an order of confiscation under sub-
section (5) of Section 11 may, within thirty days of the order, or if fact of
such order has not been communicated to him, within thirty days of date of
knowledge of such order, prefer an appeal in writing with certified copy of
order of confiscation, accompanied by such fee and payable in such
manner as may be prescribed, to the Divisional Commissioner (hereinafter
referred to as the Appellate Authority).
Explanation. The time requisite for obtaining certified copy or
order of confiscation shall be excluded while computing period of thirty
days referred to in this sub-section.
(2) The Appellate Authority referred to in sub-section (1) shall, on
presentation of memorandum of appeal, issue a notice for hearing of
appeal to the officer effecting seizure and to any other person who in the
opinion of the Appellate Authority, is likely to be adversely affected by the
order of confiscation, and call for the record of the case:
Provided that no formal notice of appeal need be issued to the
appellant, officer effecting seizure and any other person likely to be
adversely affected as aforesaid, who may be informed in any other manner
of date of hearing of appeal by the Appellate Authority.
(3) The Appellate Authority shall send intimation in writing of
lodging of appeal to the District Collector.
(4) The Appellate Authority may pass such orders of “interim”
nature for custody or disposal (if necessary) of the subject matter of
confiscation as may appear to be just or proper in the circumstances of the
case.
(5) The Appellate Authority, having regard to the nature of the case
or the complexities involved, may permit parties to the appeal to be
represented by their respective legal practitioners.
(6) On the date fixed for hearing of the appeal or on such date to
which the hearing may be adjourned, the Appellate Authority shall pursue
the record and hear the parties to the appeal if present in person, or
through any agent duly authorized in writing or through a legal
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
63
practitioner, and shall thereafter proceed to pass an order of confirmation,
reversal or modification of order of confiscation –
Provided that before passing any final order the Appellate
Authority may if it is considered necessary for proper decision of appeal
make further enquiry itself Or cause it to be made by the District Collector
and may also allow parties to file affidavits for asserting or refuting any
fact that may arise for consideration and may allow proof of facts by
affidavits.
(7) The Appellate Authority may also pass such orders of
consequential nature, as it may deem necessary.
(8) Copy of final order or of order of consequential nature shall be
sent to District Collector for compliance or for passing any appropriate
order in conformity with the order of Appellate Authority.
11B. Revision before Court of Sessions against order of Appellate
‘ Authority –
Any party to the appeal aggrieved by final order or by order of
consequential nature passed by the Appellate Authority, may within thirty
days of the order sought to be impugned submit an application for revision
to the Court of Sessions within the Sessions division whereof the head
quarters of the Appellate Authority are situate.
Explanation. In computing the period of thirty days under this
section, the time requisite for obtaining certified copy of order of Appellate
Authority shall be excluded,]
85. By carrying out amendment to the said Act vide Notification dated
16.08.2024, proviso has been inserted in Section 11(5) and a new sub-section
11(6) has been inserted whereby the jurisdiction of the Court to make order
about disposal or custody of the vehicles and Cow Progeny seized has been
excluded once intimation about initiation of confiscation proceedings under
Section 11(5) is received by the Magistrate.
86. From a bare perusal of language of Section 11 (5) of the Cow Progeny
Act, it is seen that the provision therein is that the District Magistrate shall
confiscate the seized vehicles etc. in such manner as may be prescribed. No
particular procedure for confiscation proceedings has been laid down in
Section 11, nor any specific provision for hearing any person including
owner of vehicle has been laid down in the said provision.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
64
87. Rules are framed by the State Government under the said Act, which
are known as M.P. Govansh Vadh Pratishedh Rules, 2012. Rule 5 thereof
relates to confiscation by the District Magistrate. The only provision as per
Rule 5 is as under:-
“5. Confiscation by District Magistrate :-
In case of any violation of section 4, 5, 6, 6A and 6B, the police
shall be empowered to seize the vehicle, cow progeny and beef, and the
District Magistrate shall confiscate such vehicles, cow progeny and beef as
per the provisions of section 100 of Criminal Procedure Code, 1973 (No.2
of 1974) in following manner :-
(i) He shall take possession of the vehicle;
(ii) He shall intimate the Veterinary Department to take in custody
of the cow-progeny and beef.
(iii) The beef of cow-progeny shall be disposed of by the
department by such procedure as he deems fit.”
88. The aforesaid Rule 5 also does not relate to any particular procedure to
be followed, any particular person to be noticed or a defence to be taken by a
person in the confiscation proceedings. The rule only states that the District
Magistrate shall confiscate vehicle etc. as per provisions of Section 100 of
Criminal Procedure Code. The erstwhile Code of Criminal Procedure in
Section 100 thereof related to search and seizure and not confiscation. It is
really surprising that how the procedure of Section 100 Cr.P.C. can be
borrowed for the purpose of confiscation of vehicles and articles, which is
totally irrelevant for the said purpose. No doubt search and seizure can take
place by following procedure under Section 100, but it is beyond
comprehension of this Court that by following the provisions of Section 100
for search and seizure, confiscation can take place by the District Magistrate.
Therefore, it is to be held that no procedure for confiscation has been laid
down either in the Cow Progeny Act or in the Rules of 2012 framed under
the said Act, though only enabling provision for confiscation is there. The
burden of proof is on the owner in trial before Court, who may or may not be
Signature Not Verified
the owner of vehicle.
Signed by: 453
Signing time: 22-04-
2025 17:40:59
65
89. Further, as per the provisions of the Cow Progeny Act, confiscation
can take place in case of violation of Section 4, which prohibits slaughter of
Cow Progeny. Section 5 prohibits possession and transport of beef and
Section 6 prohibits transport of Cow Progeny for slaughter. Section 6-A
prohibits export of Cow Progeny and grant of permit. Section 6-B prohibits
transport of Cow Progeny through the State of Madhya Pradesh and provides
for grant of transit permit.
90. In the aforesaid six provisions for violation of which confiscation can
take place, no defence is carved out in the confiscation proceedings that the
vehicle was used without the knowledge or connivance of the owner of
vehicle. The only whisper to be found is in Section 6, which relates to the
person transporting cow progeny or causing it to be transported himself or by
his agent servant etc. for the purpose of slaughter or with the knowledge and
it will be or likely to be slaughter.
91. No defence seems to be carved out in all the aforesaid provisions of
Sections 4, 5, 6, 6-A and 6-B that the owner of vehicle can raise a defence
that the vehicle was used without his knowledge. In fact, Sections 4, 5, 6, 6-A
and 6-B are the criminal provisions and they would not apply to owner of the
vehicle, but would apply only where the owner is the transporter also.
However, no further defence has been carved out in Section 11(5), which
relates to confiscation of vehicle of the owner being able to raise a defence in
confiscation proceedings that the vehicle was used for the offence under the
act without his knowledge or connivance. Therefore, so far as the rights given
to the owners of vehicles are concerned, it appears that the provisions are not
different from the provisions of Excise Act discussed above. Only a whisper
of knowledge is found in Section 6, which is very ambiguous. The relevant
fact is use of the vehicle in a particular manner, and the knowledge of the
transporter, without any reference to knowledge of the owner is irrelevant
because confiscation hits the owner, and not the transporter nor the supplier.
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
66
92. Very importantly, no power is given to Trial Court under Cow Progeny
Act to pass order for confiscation and the only power is given to District
Magistrate/Collector. In this view of the matter, it would have been
appropriate that a proper procedure for enquiry had been laid down before the
District Magistrate/Collector, and the lack of knowledge and connivance of
owner/his agent had been engrafted in the said Act or Rules, so that the law
would have ensured that the owner stood a proper chance to plead, represent
and defend his case. However, the question of constitutionality of provisions
of Cow Progeny Act relating to confiscation is neither referred before us, nor
prayed in the petition in which reference has been made.
93. The issue relating to Cow Progeny Act has been dealt with by the
Hon’ble Supreme Court in the case of Abdul Vahab (supra) wherein the
Supreme Court reversed the confiscation as the accused had been acquitted in
criminal trial. It was held that the order of acquittal was passed as evidence
was missing to connect the accused with the charges. The confiscation of the
truck of appellant therein when he stood acquitted in the criminal
prosecution, was held amounting to arbitrary deprivation of his property and
violates the right guaranteed to each person under Article 300-A. It was held
not only arbitrary but also inconsistent with the legal requirements. The
Hon’ble Supreme Court has held that confiscation despite acquittal by
criminal court cannot be allowed to stand. The fact of acquittal was held to be
a relevant factor in the matter of confiscation of vehicle.
94. As already discussed above, no defence of lack of knowledge and
connivance of the owner has been made available to the owner, nor has any
procedure for confiscation been laid down. Therefore, it is held that though
the proceedings for confiscation can be initiated and proceeded parallel to
criminal trial, but no confiscation order can be passed before conclusion of
criminal trial and the Collector/District Magistrate would be empowered to
confiscate the vehicle only if conviction is recorded in criminal trial and
involvement of vehicle and knowledge/connivance of the owner is proved in
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
67
the criminal trial. We are also fortified in our conclusion by a recent order of
the Hon’ble Supreme Court in SLP (Crl.) No. 1910-1911/2024
(Mohammad Vs. State of Rajasthan) wherein the Supreme Court held that
confiscation under Section 6-A of The Rajasthan Bovine Animal (Prohibition
of Slaughter and Regulation of Temporary Migration of Export) Act 1995
will not be given effect to during pendency of criminal trial.
95. So far as the question of maintainability of writ petition is concerned,
the position is not at all in dispute in terms of the settled position of law by
various judgments of the Supreme Court, some of those being in the case of
Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771 and
Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1, that once
the order is without jurisdiction, the High Court can interfere in the said order
in exercise of writ jurisdiction even on availability of alternative remedy of
appeal/revision and also that alternative remedy being only self imposed
restriction and not absolute bar to exercise of writ jurisdiction, where the
order is passed by an authority having no authority to pass the order, then the
High Court can always entertain writ petition. Therefore, it is to be held that
writ petition is maintainable once an order is passed by the Collector/District
Magistrate confiscating the vehicles by exercising powers under the
provisions of M.P. Excise Act, 1915 and before conclusion of trial under
Cow Progeny Act.
96. Therefore, the questions referred to us in the matter of jurisdiction to
pass confiscation order during pendency of criminal proceedings under M.P.
Excise Act, 1915 and Cow Progeny Act are answered in the following
manner :
A. Section 47-A of M.P. Excise Act conferring authority on
the Collector to pass order for confiscation is declared ultra-
vires being disproportionately violative of Articles 19(1)(g)
and 300-A of the Constitution of India. Therefore, question ofSignature Not Verified
confiscation by the Collector during pendency of criminal
Signed by: 453
Signing time: 22-04-
2025 17:40:59
68trial no longer survives in the matter, as order for
confiscation can now be passed only by the Criminal Court
trying the offence in terms of sections 46 and 47 thereof. As a
necessary consequence thereto, Section 47-D would become
inoperative in all cases where confiscation orders have not
been passed as yet, having rendered superfluous.
B. For cases under Cow Progeny Act, the
Collector/District Magistrate shall be competent to initiate
proceedings for confiscation during pendency of criminal
trial, but no confiscation order can be passed before
conclusion of criminal trial and the Collector/District
Magistrate would be empowered to confiscate the vehicle only
if conviction is recorded in criminal trial and involvement of
vehicle and knowledge/connivance of the owner is proved in
the criminal trial.
C. Writ petition is maintainable once an order is passed by
the Collector/District Magistrate confiscating the vehicles by
exercising powers under the provisions of M.P. Excise Act,
1915 and in case of Cow Progeny Act, if it is passed before
conclusion of trial, because it will be without jurisdiction.
97. As we have held Section 47-A of the M.P. Excise Act to be
ultra-vires of Constitution of India, and a number of cases must have been
decided by now since the provision has been in existence, therefore, to avoid
any chaos and needless heavy burden on State machinery and exchequer, we
direct that this order would be applicable only prospectively in the following
manner :-
a. for those pending cases where confiscation order has
not yet been passed by the Collector till date of this order, this
order will be applicable,
Signature Not Verified
Signed by: 453
Signing time: 22-04-
2025 17:40:59
69b. for the concluded cases where confiscation order has
already been passed prior to date of this order, this order would
apply only if an appeal/revision/petition under Section 482 CrPC
or U/s 528 BNSS/writ petition or challenge in any manner is
pending against confiscation order as on date of this order.
c. where either (a) the confiscation order or (b) order in
appeal has already been passed prior to date of this order, the
benefit of this order will be applicable only if statutory limitation
for challenging the same has not expired on date of this order and
if (c) order in Revision has been passed less than three months
prior to date of this order, then also, benefit of this order will
apply while making challenge before the High Court in Writ
petition/Section 482 CrPC or Sec. 528 BNSS.
d. where the confiscation order has already been passed
and it has not been challenged, or if challenged, the challenge has
failed and not pending as on today and in case of confiscation
order or appellate order, limitation to challenge the same has
expired, or in case of Revisional order, same has been passed
more than three months prior to date of this order and not put to
challenge till today, confiscations in those cases will stand closed
and shall not be re-opened in any manner for any purpose
whatsoever for taking benefit of this order.
98. We having given our conclusions, W.P. No.6542/2025 is
disposed of, while the reamaining matters be placed before the appropriate
Bench for adjudication of the case.
(SURESH KUMAR KAIT) (SUSHRUT ARVIND DHARMADHIKARI) (VIVEK JAIN)
CHIEF JUSTICE JUDGE JUDGE
Signature Not Verified MISHRA/NKS/RJ
Signed by: 453
Signing time: 22-04-
2025 17:40:59
[ad_1]
Source link