Chattisgarh High Court
Devesh Chouhan vs State Of Chhattisgarh on 10 August, 2022
Author: Nk Chandravanshi
Bench: Nk Chandravanshi
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP (Cr.) No. 173/2022
• Devesh Chouhan S/o Shri Ganesh Chouhan Aged About 25
Years R/o Village- Koradih, Police Outpost- Baya, Thana-
Rajadeori, District- Balodabajar-Bhatapara, CG
---- Petitioner
Versus
1. State Of Chhattisgarh Through- The Secretary Excise
Department, Mahanadi Bhawan, Capital Complex, Atal Nagar,
New Raipur, District- Raipur, CG
2. Collector, Mahasamund, District- Mahasamund, CG,
3. District Excise Officer Mahasamund, District- Mahasamund, CG
---- Respondents
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For Applicant : Mr. Sunil Sahu, Adv.
For respondent/State : Mrs. M. Asha, Panel Lawyer.
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Hon'ble Shri Justice NK Chandravanshi Order on Board 10-8-2022
1. This writ petition (Cr) under Article 226 of the Constitution of India has been preferred by the petitioner against the order dated 7-9-2021 passed by the Collector, Mahasamund in Misc. Case No. 17/2021 whereby the Collector has dismissed the application filed by the applicant for releasing his vehicle on Supurdnama.
2. Brief facts of the case are that on 29-1-2021, 20 bulk litre hand made country liquor was seized from the vehicle VagorR bearing registration No. CG 12 AM 2574 (in short 'vehicle in question'). The vehicle was also seized by the Police. Offence was registered under Section 34(1) and 34(2) of the CG Excise Act, 1915 (in short 'the Act'). On being report made by the police, the Collector started confiscation proceeding for the vehicle. During the confiscation proceeding, the petitioner, who is claiming himself as owner of the vehicle, filed an application for releasing the vehicle in question on supurdnama which has been rejected by the impugned order.
23. Learned counsel for the petitioner submits that though confiscation proceedings have been commenced, but vehicle in question can be given on supurdnama as initiation of confiscation proceeding does not put any bar to release the vehicle on interim custody. It is submitted that no useful purpose would be served by keeping the vehicle in the custody and the vehicle would get damaged by the lapse of time.
4. On the other hand, learned counsel appearing for the State opposes the prayer.
5. Heard learned counsel for the parties and perused the material available on record including the impugned order.
6. The confiscation proceeding under the Act is governed by Section 47-A(3) of the Act. Section 47-A(2) of the Act regulates the power and procedure to be adopted for confiscation. Perusal of sub-section (2) of the above Act would show that power has been given to the District Magistrate (Collector) upon production of the article and on having satisfied that offence covered under clause (a) or clause (b) of sub-section (1) of Section 34 of the Act has been committed and if liquor is more than 5 bulk liters, he may order for confiscation of articles, intoxicants, implements, utensils including the conveyance so seized. It also provides that during pendency of the proceeding, he may pass an order of interim nature for custody, disposal etc. of the confiscated intoxicants, articles, implements, conveyance as may appear to be necessary in the facts of this case.
7. Section 47-B of the Act provides for appeal against the order of confiscation. Therefore, it necessarily leads that order of confiscation can only be challenged when it reaches its finality and the statute do not give any space to challenge any other order except the final one. In view of this, the necessary implication would be that any order of interim nature if any passed, the High Court in exercise of it's power vested in it under Article 227 of the Constitution can always test the propriety or legality of the order. It is a settled proposition of jurisprudence that every wrong will have a remedy. So if the order is found to be wrong then certainly the High Court would have all the power to correct the same.
38. The impugned order dated 7-9-2021 shows that no reasons have been assigned for rejection of application for supurdnama, except that illegal liquor was transported through the vehicle. The learned Collector has failed to consider that the vehicle is kept in the police station since 29-1-2021, and if it is kept in police station for indefinite period, it is prone to cause natural decay and may loose its road worthiness. In Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283, the Apex Court has laid down that in case of vehicles seized during investigation, they should not be allowed to deteriorate by being kept unused and unattended in the premises of the police stations. Therefore, the vehicle has to be entrusted to the interim custody of the petitioner subject to appropriate conditions. In view of above, the order of rejection of application for interim custody cannot be allowed to sustain. Consequently, applying the said principles, it is directed that the vehicle be released in favour of petitioner by way of interim measure, if the confiscation proceedings have not been concluded till date of production of this order.
9. Therefore, the vehicle in question is directed to be released to the petitioner on the following conditions:-
i. Petitioner shall satisfy that he is owner of the vehicle. ii. Before release of vehicle proper panchnama be prepared. iii. Photographs of vehicle be taken and bond should also be produced that the article would be produced if required at the time of trial or confiscation.
iv. Proper security and personal bond of the owner, amounting to present value of like vehicle, be obtained before release of vehicle.
10. In view of foregoing discussions, the petition succeeds and is allowed. No order as to cost(s).
Sd/-
(N.K. Chandravanshi) JUDGE Pathak/-