IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PREM NARAYAN SINGH th ON THE 6 OF MAY, 2025 MISC. CRIMINAL CASE No. 18118 of 2025 KAILASH Versus DISTRICT MAGISTRATE Appearance:

Anil Malviya - advocate for the petitioner.

Romil Verma appearing on behalf of Advocate General.

ORDER

1. The petitioner has filed the instant application under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 being aggrieved by the order dated 19.01.2025 passed by the learned third Additional Sessions Judge, District Barwani in Criminal Revision No.14/2025, arising out of the order dated 13.09.2024 passed by Judicial Magistrate First Class, District Barwani in MJCR No.598/2024 whereby the Courts below rejected the application filed by the petitioner under Sections 451 and 457 of Cr.P.C. 1973 (Section 497 & 503 of BNSS, 2023) for interim custody of his vehicle bearing registration No. MP-46-T-0827.

2. Now, in this regard, judgment of Full Bench of this Court recently in the case of Ramlal Jhariya Vs. State of Madhya Pradesh and others, passed in WP No. 11356/2024, vide order dated 21.4.2025 wherein the Hon'ble Full Bench of this Court, after categorical and detailed discussion, Signature Not Verified has held that the provisions of Section 47-A of the Act has been declared ultravires, hence the relevant conclusions of the judgement is worth to be quoted here:-

" 96. Therefore, the questions referred to us in the matter of jurisdiction to pass confiscation order during pendency of criminal proceedings under M.P. Excise Act, 1915 and Cow Progeny Act are answered in the following manner :

A. Section 47-A of M.P. Excise Act conferring authority on the Collector to pass order for confiscation is declared ultravires being disproportionately violative of Articles 19(1)(g) and 300-A of the Constitution of India. Therefore, question of confiscation by the Collector during pendency of criminal trial no longer survives in the matter, as order for confiscation can now be passed only by the Criminal Court trying the offence in terms of sections 46 and 47 thereof. As a necessary consequence thereto, Section 47-D would become inoperative in all cases where confiscation orders have not been passed as yet, having rendered superfluous.

B. For cases under Cow Progeny Act, the Collector/District Magistrate shall be competent to initiate proceedings for confiscation during pendency of criminal trial, but no confiscation order can be passed before conclusion of criminal trial and the Collector/District Magistrate would be empowered to confiscate the vehicle only if conviction is recorded in criminal trial and involvement of vehicle and knowledge/connivance of the owner is proved in the criminal trial.

C. Writ petition is maintainable once an order is passed by the Collector/District Magistrate confiscating the vehicles by exercising powers under the provisions of M.P. Excise Act, 1915 and in case of Cow Progeny Act, if it is passed before conclusion of trial, because it will be without jurisdiction.

97. As we have held Section 47-A of the M.P. Excise Act to be ultra-vires of Constitution of India, and a Signature Not Verified number of cases must have been decided by now since the provision has been in existence, therefore, to avoid any chaos and needless heavy burden on State machinery and exchequer, we direct that this order would be applicable only prospectively in the following manner :-

a. for those pending cases where confiscation order has not yet been passed by the Collector till date of this order, this order will be applicable, b. for the concluded cases where confiscation order has already been passed prior to date of this order, this order would apply only if an appeal/revision/petition under Section 482 CrPC or U/s 528 BNSS/writ petition or challenge in any manner is pending against confiscation order as on date of this order.

c. where either (a) the confiscation order or (b) order in appeal has already been passed prior to date of this orde