Chattisgarh High Court
Okeshwari Sahu vs State Of Chhattisgarh on 13 September, 2022
Author: Nk Chandravanshi
Bench: Nk Chandravanshi
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 499 of 2022
• Okeshwari Sahu W/o Shri Daulat Sahu Aged About 31 Years
R/o Chaurega, Tehsil Simga, District Balodabazar Bhatapara
CG
---- Petitioner
Versus
1. State Of Chhattisgarh Through S.H.O. Excise Thana Bhilai
Circle 03, Durg (Chhattisgarh)
2. The District Magistrate (Collector) District : Durg, CG
3. Ravi Dhruv S/o Pardeshi Ram Dhruv Aged About 24 Years R/o
Kalyan Sagar, Ward No. 7, Bhatapara, Balodabazar, District :
Balodabazar-Bhathapara, Chhattisgarh
4. Mangal Nishad S/o Pareshi Ram Nishad, Aged About 31 Years
R/o Ward No. 12, Supela Bhilai, District : Durg, Chhattisgarh
---- Respondents
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For Applicant : Mr. Aman Pandey, Adv.
For respondent/State : Mr. Chitendra Singh, Panel Lawyer.
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Hon'ble Shri Justice NK Chandravanshi Order on Board 13-9-2022
1. This writ petition (criminal) under Article 226 of the Constitution of India has been preferred by the petitioner against the order dated 5-5-2022 passed by the Collector, Durg in Excise Case No. 55/2021 whereby the Collector has dismissed the application filed by the applicant for releasing his vehicle on Supurdnama.
2. Brief facts of the case, as per memo of petition, are that on 7-8-2021, 100 cartoons foreign liquor total 864 bulk liters, was seized which was being transported in the vehicle Bolero Maxi Plus, bearing registration No. CG 22 R D1903 (in short 'vehicle in question'). Based on above facts, offence under Section 34(2), 59 and 36 of the CG Excise Act, 1915 (in short 'the Act') was registered in Excise Circle No. 3, Bhilai and the vehicle was also seized.
3. The petitioner, who is claiming herself as owner of the vehicle, filed an application before the Collector, Durg for releasing the vehicle in question on supurdnama which has been rejected by the impugned order.
24. Learned counsel for the petitioner submits that she is registered owner of the vehicle and at the relevant time, she has given the vehicle on rent to respondent No. 3, copy the rent agreement has been filed with the petition. It is further submitted that though confiscation proceedings have been commenced, but it 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.
5. On the other hand, learned counsel appearing for the State opposes the prayer.
6. 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 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 he, during pendency of the proceeding, 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 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 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.
39. The impugned order dated 5-5-2022 shows that no reasons have been assigned for rejection of application for supurdnama, except that illegal liquor was transported through the vehicle. The Collector has failed to consider that if the vehicle is kept in the police station, 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 in question 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 vehicle in question is directed to be released to the petitioner on the following conditions:-
i. Petitioner shall satisfy that she 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.
11. In view of foregoing discussions, the petition succeeds and is allowed. No order as to cost(s).
Sd/-
(N.K. Chandravanshi) JUDGE Pathak/-