Chattisgarh High Court
Nohar Sahu vs State Of Chhattisgarh on 5 September, 2022
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No. 719 of 2022
Nohar Sahu, S/o Shri Ramcharan Sahu, aged about 49 years, R/o. Civil
Line Ward No. 11 Mahasamund, Thana & Tahsil - Mahasamund, Distt.-
Mahasamund (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh through - The Secretary Excise Department,
Mahanadi Bhawan, Capital Complex, Atal Nagar, New Raipur, Distt.
Raipur (C.G.)
2. Collector, Mahasamund, Distt. Mahasamund (C.G.)
3. District Excise Officer, Mahasamund, Distt.- Mahasamund (C.G.)
---Respondents
For Petitioner : Mr. Sumit Shrivastava, Advocate.
For Non-applicant : Mr. Wasim Miyan, Panel Lawyer.
Hon'ble Mr. Justice N.K. Chandravanshi
Order On Board
05-09-2022
1. With the consent of the parties, this petition is heard finally at the motion stage.
2. This writ petition (Cr.) under Article 226 of the Constitution of India has been preferred by the petitioner against the order dated 21.07.2022 passed by the Collector, District Mahasamund (C.G.) in Case No. 25/2020 whereby the Collector has dismissed the application filed by the applicant for releasing his Motorcycle bearing registration No. CG/06/GJ/2377 (henceforth "motorcycle") on supurdnama.
3. Facts of the case in brief are that on 21.01.2022, the petitioner was found in illegal possession of 5.400 bulk liters liquor (24 quarters country made liquor & 6 quarter foreign liquor), which was transported by him illegally in the aforesaid motorcycle, hence, aforesaid liquor and motorcycle were seized from the possession of the applicant and FIR bearing Crime No. 32/2022 for the offence punishable under Section 34 (2) of the Chhattisgarh Excise Act, 1915 2 (henceforth 'the Act') was registered at Police Station City Kotwali, Mahasamund, District Mahasamund. Intimation under Section 47-A of the Act was given by the police to the Collector, Mahasamund, hence, procedure for confiscation of the motorcycle has been initiated against the petitioner. During the confiscation proceeding, the petitioner, who is claiming himself as owner of the said motorcycle, filed an application for releasing the same on interim custody, which has been rejected by the Collector, Mahasamund vide impugned order dated 21.07.2022. Hence, this petition.
4. Learned counsel for the petitioner submits that though confiscation proceedings have been initiated, but motorcycle in question can be given on supurdnama, as initiation of confiscation proceeding does not put any bar to release the motorcycle on interim custody. He further submits that the petitioner is registered owner of the seized motorcycle, which is lying unused in the open place at Police Station since about 8-9 months and it is likely to be damaged if the custody of the same is not granted to the petitioner herein.
5. On the other hand, learned counsel appearing for the State opposes the prayer made by counsel for the petitioner.
6. I have heard learned counsel for the parties and perused the material available on record including the impugned order.
7. 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.
8. 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 3 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.
9. Perusal of the impugned order dated 21.07.2022 would go to show that application for interim custody of the motorcycle in question has been rejected by the Collector holding that offence of illegal transportation of illicit liquor are increasing day by day and if the said motorcycle is handed over to the petitioner on interim custody, then the same could be used for the like offences. Reasons assigned by the Collector could not be held to be appropriate to deny the application filed by the petitioner for grant of motorcycle on interim custody because conclusion of confiscation proceedings may take considerable time, and as has been stated that the said motorcycle is lying unused in the open place at police station for about more than 8 months and if it is kept in police station for further long period, it is prone to cause natural decay and may loose its road worthiness. In Sunderbhai Ambalal Desai Vs. State of Gujarat 1, the Supreme Court has clearly held that in case of vehicles seized during investigation, they should not be allowed to deteriorate for 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.
10. Therefore, the respondents are directed to release the vehicle in question 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 also be taken that the article would be produced if required at the time of trial or confiscation.
1 (2002) 10 SCC 283 4 iv. Proper security and personal bond of the owner, amounting to present value of like vehicle, be obtained before release of vehicle.
11. In view of foregoing discussions, the petition deserves to be and is hereby allowed. No cost(s).
Sd/-
(N.K.Chandravanshi) Judge D/-
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