1. This petition under section 528 of the BNSS, 2023 is filed feeling aggrieved by the order dated 26.03.2025 passed by the Sessions Judge Ratlam District Ratlam in Criminal Revision No. 1759/2025, whereby the revision petition filed by the revisionist/petitioner against the order dated 13.03.2025 in criminal case no. 530/2025 passed by the Judicial Magistrate First Class Sailana has been dismissed.
2. As per the case of prosecution, Excise Sub Inspector Chetan Ved of Circle Sailana intercepted Bolero vehicle bearing registration no. MP-70C- 0551 on 01.03.2025 to verify the secret information. During search of the vehicle, 324 bulk liters of country made plain liquor was found and seized. The vehicle and illicit liquor was seized from possession of Sunil. During investigation, it was found that the petitioner was owner of the bolero . On such allegations, Excise Circle Sailana registered FIR at crime No. 530/2025 for the offence punishable under Section 34(1)A and 34(2) of the MP Excise Act against accused Sunil Pargi.
3. Learned counsel for the petitioner, referring to the order dated 13.03.2025 passed by the Judicial Magistrate First Class Sailana contends that the Judicial Magistrate has rejected the application filed by the petitioner under Section 497 and 506 of The Bharatiya Nagarik Suraksha Sanhita on the ground that the District Magistrate Ratlam has initiated proceeding for confiscation of the vehicle vide intimation letter dated 4.03.2025. The revisional Court erroneously affirmed the order of JMFC, vide impugned order dated 26.03.2025. Learned counsel submits that the District Magistrate has no authority to pass the order of confiscating the vehicle seized for offence punishable under Sections 34(2) of the MP Excise Act, until the accused is convicted after trial by the competent Court of Judicial Magistrate. Learned counsel also submits that the trial in connection with Crime no. 530/2025 is pending before the Judicial Magistrate First Class, Sailana. No conviction is recorded against accused/petitioner till date, therefore, the impugned order suffers from jurisdictional error.
4. Considered. Perused the record.
5. The Full Bench of this Court vide order dated 21/04/2025 passed in Writ Petition No. 11356 of 2024 (Ramlal Jhariya Vs. The State of Madhya Pradesh and others) and the connected matters has held as under :
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 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.
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 ultravires being disproportionately violative of Articles 19(1)(g) and 300-A of the Constitution of India. Therefore, question of confiscation by the Collector during pendency of criminal trial 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.
6. The revisional Court considered the provisions contained under Section 47-D of MP Excise Act to conclude that once the District Magistrate on initiation of confiscation proceeding gives intimation to the concerned Court, the Judicial Magistrate cannot release the vehicle which is subject matter of confiscation proceeding. The Full Bench of this Court in the matter of Ramlal Jhariya (supra) held that Section 49-A of MP Excise Act conferring authority on the Collector to pass order for confiscation is ultra-vires. The Collector cannot pass an order of confiscation during pendency of the criminal trial. The order for confiscation can only be passed by the criminal Court trying the offence in terms of Section 46 and 47 of the Act and Section 47-D of the Act would become inoperative, where confiscation orders have not been passed. As informed, no confiscation order is passed in the matter. Therefore, the trial Court and Revisional Court committed error in rejecting the application for interim release of the vehicle merely on the ground that District Magistrate has given intimation under Section 47 of the MP Excise Act.
7. Consequently, the impugned order dated 26.03.2025 passed by the Sessions Judge, Ratlam in Criminal Revision No. 1759/2025 and the order dated 13.03.2025 passed by the Judicial Magistrate First Class, Sailana, are set aside. The learned Judicial Magistrate First Class, Sailana shall consider the application under Section 497 and 506 of the BNSS afresh in accordance with law and in the light of law laid down in case of Ramlal Jhariya (supra).
8. Present petition is allowed and disposed of accordingly.
9. All the pending IAs stand disposed of.
CC as per rules.
