2002 Supreme(MP) 154

A.K. Mishra, J.
Rajendra Kumar Gupta v. State of M.P.
W.P. No. 5309 of 2001 (J); Decided on 6.2.2002.*

Headnote:Excise Act, 1915 (M.P.) -- S. 47-A (3) (b) -- person from whose possession illicit liquor and conveyance were seized not noticed -confiscation proceedings are liable to be quashed.

       

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        The petitioner is assailing the order of confiscation of his Tempo Trax on the ground that as per clause B of Sub-section (3) of section 47-A of the M.P. Excise Act, 1915, the petitioner was required to be issued notice in writing which was not issued.

       

        Learned counsel for the petitioner submits that it is riot in dispute that Driver Munna Lal was driving the Tempo Trax in question at the relevant time when the illicit liquor was allegedly seized from the Tempo Trax which also resulted in seizure of the conveyance pursuant to which the proceedings were initiated by Collector and District Magistrate, Raisen in Case No. 521/Excise/2001. Collector issued a notice to the registered owner i.e. petitioner namely Rajendra Kumar Gupta and after hearing ordered confiscation of vehicle Tempo trax No. M.P. 20-H-9606 exercising the power under section 47 A. Collector passed the order on 16.5.2001 (Annexure P-1). Against the order, the petitioner preferred an appeal which was decided by Commissioner (Excise) on 16.7.2002 as per Annexure P-2. The appeal was dismissed. The petitioner took the matter in revision before Sessions Judge, Raisen. The Revision was also dismissed on 24.9.2001 as per Annexure P-3. The main submission raised by the petitioner besides others was that the driver was required to be issued a notice in terms of clause B of sub-section (3) of section 47 A of M.P. Excise. Act which was not issued in the instant case. Sessions Court found that no such notice was issue to the driver from whose possession the liquor as well as conveyance was seized.

       

        The learned counsel for the petitioner, Shri S.K. Garg, submits that issuance of notice is mandatory under section 47-A(3)(b) of the Act which has resulted into prejudice to the petitioner as the best person to explain was the driver who was driving the conveyance and from whose possession the illicit liquor was seized.

       

        The learned Deputy Advocate General Shri Ajay Kumar Mishra, submits that it is a case where order passed are proper and no prejudice has been caused to the petitioner as he was heard, he is the registered owner and the most interested person in using the vehicle being its registered owner.

       

        In order to consider the submission of learned counsel for the petitioner, it is necessary to consider the provision of section 47-A clause b of sub section (3) of the Excise Act which is quoted below:

       

       No order under sub-section (2) shall be made unless the Collector has -

       (a) ...................

       (b) issued a notice in writing to the person from whom such intoxicants, articles, implements, utensils, materials, conveyance, etc. have been seized and to any person staking claim to and to any other person who may appear before the Collector to have an interest in it :

        It is clear from the aforesaid provision that primarily the notices are required to be issued to the person from whose possession the illicit liquor or contraband is recovered and also the person in whose possession the conveyance was. Admittedly, the driver namely Munna Lal Kahar was carrying the Tempo Trax in question which is used as Taxi. Passengers were also travelling as per the petitioner at the relevant time. Thus the best person to explain the possession of illicit liquor was the driver. Notice is mandatory to be issued to such person under the above quoted provision. Thus the order passed of confiscation without hearing the person from whose possession the contraband and conveyance was seized is illegal. The order passed by the Collector, Commissioner and Sessions Court (Annexures P-1, 2 and 3) are quashed. Matter is remitted to the Collector who shall issue notice to the driver and proceed in accordance with law.

       

        Cost on parties.