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2. As per the case of prosecution, ASI Arjun Singh Bamniya of the police station Narsingadh intercepted Tractor vehicle bearing registration no. MP- 39-AD-3180 on 16.04.2023. During search of the vehicle, 20 boxes of beer NEUTRAL CITATION NO. 2025:MPHC-IND:33426 was found and seized. During investigation, it was found that the petitioner was owner of the tractor vehicle. On such allegations, the P.S. Narsingadh registered FIR at crime No. 242/2023 for the offence punishable under Section 34(2) of the MP Excise Act.

3. Learned counsel for the petitioner, referring to the order dated 9.5.2023 passed by the Chief Judicial Magistrate Rajgadh contends that the Chief Judicial Magistrate has rejected the application filed by the petitioner under Section 451 of Cr.P.C. for the reason that District Magistrate Rajgadh (Biaora) has given intimation regarding initiation of proceeding for confiscation of tractor seized in crime No. 242 of 2023, therefore, in view of Section 47-D of MP Excise Act, the order for interim custody of the vehicle cannot be passed. 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. 242/2023 is pending before the Chief Judicial Magistrate, Rajgadh. No conviction is recorded against accused/petitioner till date, therefore, the impugned order suffers from jurisdictional error. The revisional Court committed an error in affirming the order of Learned JMFC.

6. The learned trial Court and the revisional Court considered the provisions contained under Section 47-D of MP Excise Act to conclude that once the Collector on initiation of confiscation proceeding gives intimation to the concerned Judicial Magistrate, 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, learned Chief Judicial Magistrate Rajgadh and the revisional Court committed an error in rejecting the application for interim release of the vehicle merely on the ground that District Magistrate has given intimation under Section 47-D of the MP Excise Act.