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Madhya Pradesh High Court

Sunil Sharma vs The State Of Madhya Pradesh on 11 December, 2018

Equivalent citations: AIRONLINE 2018 MP 1269

  1                                         M.Cr.C.No.48305/2018

            HIGH COURT OF MADHYA PRADESH
                     M.Cr.C. No.48305/2018
                          Sunil Sharma
                               Vs.
                       State of MP & Ors.
Indore, Dated:11.12.2018

Shri.R.S.Parmar, learned counsel for petitioner.

Shri Vivek Patva, learned counsel for State.

Heard.

By this petition, the petitioner has challenged the order of the Collector dated 26th July, 2017 passed u/S.47(A)(3) of the M.P. Excise Act for confiscating the Vehicle No. MP.13.GA.3555 as also the order dated 19/9/2018 passed by the Commissioner dismissing the appeal and the order dated 01st October, 2018 passed by the Addl.Sessions Judge dismissing the revision petition.

Learned counsel for petitioner submits that the trial of the offence has already taken place and the trial court has found that the seizure was of less than 50 bulk ltr, therefore, the conditions of confiscation u/S.47-A of the Act are not satisfied. In support of his submission he has placed reliance upon the order dated 15/2/2018 passed in M.Cr.C. No.4444/2011 in the case of Arif Vs. State of MP.

Learned counsel for State has supported the impugned order.

Having heard the learned counsel for parties and on perusal of the record, it is noticed that the trial of the concerned offence u./S.34(2) of the M.P. Excise Act, 1915 had taken place and in the criminal trial No.6812/2013 the 2 M.Cr.C.No.48305/2018 the learned JMFC, Ujjain by order dated 12/2/2018 while acquitting the accused persons for the said offence had found that the seized liquor was only 18720 ml. ie. 18 ltr 720 ml which was less than 50 bulk ltr, hence acquitted the accused persons.

Learned counsel for State has not disputed the above aspect of the matter.

The co-ordinate bench of this court in the matter of Aarif (supra) has considered the issue of confiscation if the seized liquor is less than 50 bulk ltr and has held as under:-

7.Provision of section 34(3) of MP Excise Act provides that if offence punishable under section 34(1)(a) is committed and the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk litres, all intoxicants, articles implements, utensils, materials, conveyance etc. in respect of or by means of which the offence is committed, shall he liable to be seized and confiscated.

8. Thus there is a specific provision of seizure and confiscation with regard to commission of offence punishable under section 34 of M.P Excise Act. If the offence is committed with regard to liquor quantity less than 50 litres then there is no need to seize and confiscate the vehicle. However section 46 of the MP Excise Act in general prescribes liability of certain things to confiscation, which reads 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 subsection (1), and the receptacles, packages 3 M.Cr.C.No.48305/2018 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.

9. The provision of section 46 is general provision with regard to any offence punishable under MP Excise Act but where in connection with the offence punishable under section 34 of MP Excise Act, there is a special provision then general provision described in section 46 of the M.P Excise Act would not be applicable. It is golden rule of the interpretation. This principle is based on the legal maxim "Generalia specialibus non derogant" which means that if a special provision is made on a certain matter, that matter is excluded from the general provision.

10. In the case of Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupesh Kumar Sheth {(1984)4 SCC 27}, the Apex Court has held that where under a specific section or rule a particular subject has received special treatment, such special provision will exclude the applicability of any general provision which might otherwise cover the said topic. (Also see Venkateshwar Rao Vs. Govt. of Andhra Pradesh (AIR 1966 SC 828)

11. In view of the aforesaid discussion, in the present case the provision of section 46 of the MP Excise Act is not applicable and as per provision of section 34(3) there is no mandatory to confiscate the vehicle used in commission of offence punishable under section 34(1)(a) of MP Excise Act as the quantity of liquor was less than 50 bulk litre. Apart from it, the facts of the case do not disclose that the offence was committed by driver Ramesh in the knowledge of the applicant or with the connivance of the applicant. In such circumstance, there is no need to confiscate the vehicle and impugned orders cannot be said to be justifiable, hence they are not sustainable.

12. In view of the discussion, the petition is allowed and the impugned orders are set aside and the concerned trial court is directed to release the vehicle in favour of the applicant on submission of relevant documents with regard to his claim of ownership of vehicle.

A copy of this order be sent to the learned trial court concerned for information."

Undisputedly the present case stands on the same footing. The pre-conditions of transporting more than 50 bulk ltr of liquor as contained u/S.47-A of the Act is not satisfied in the present case also. Hence, in view of the detailed reasons which are assigned in the case of Aarif (supra), the confiscation order as also the orders passed in appeal and revision cannot be sustained and are hereby set aside.

The M.Cr.C is allowed.

c.c as per rules.

(Prakash Shrivastava) JUDGE vm Digitally signed by Varghese Mathew Date: 2018.12.12 18:06:39 +05'30'