MP Excise Act S.47-A Granting Executive Confiscation Powers Declared Ultra-Vires; Cow Progeny Act Confiscation Linked to Criminal Trial Outcome: MP High Court Full Bench - 2025-04-23

Executive Confiscation Powers Under MP Excise Act Struck Down; Cow Progeny Act Confiscation Must Await Criminal Trial

Jabalpur , MP: In a significant ruling, a Full Bench of the Madhya Pradesh High Court has declared Section 47-A of the Madhya Pradesh Excise Act, 1915, which grants executive authorities the power to confiscate vehicles and articles, as ultra vires the Constitution. The Court held that this provision is disproportionate and violates the fundamental right to carry on trade/business (Article 19(1)(g)) and the constitutional right to property (Article 300-A).

Presiding over a batch of connected cases, including Writ Petition No. 11356 of 2024 and others, the Full Bench comprising Chief Justice Suresh Kumar Kait , Justice Sushrut Arvind Dharmadhikari , and Justice Vivek Jain (who authored the judgment), addressed divergent opinions among smaller benches regarding the executive's power of confiscation during the pendency of criminal trials.

The core issue before the bench was the authority of the Collector/District Magistrate to order confiscation of vehicles used in alleged offences under the M.P. Excise Act and the Madhya Pradesh Govansh Vadh Pratishedh Adhiniyam, 2004 (Cow Progeny Act) before the conclusion of the criminal trial.

Background and Legal Question

Vehicles seized in connection with offences under these Acts are often subjected to parallel confiscation proceedings initiated by executive officers like the Collector or District Magistrate, independent of the criminal case before the Judicial Magistrate. This practice led to conflicting High Court judgments, particularly regarding the applicability of the Supreme Court's ruling in State of M.P. vs. Madhukar Rao (2008) , which dealt with confiscation under the Wild Life (Protection) Act, 1972.

Petitioners argued that like the Wild Life Act, these Acts also lacked provisions allowing the vehicle owner to defend against confiscation by proving the vehicle's use was without their knowledge or connivance. They contended that executive confiscation without this defence and before a court finding of guilt was unconstitutional.

The State argued that unlike the Wild Life Act, the Excise and Cow Progeny Acts provided a complete mechanism for confiscation by the executive, including adjudication, appeal, and revision, making them distinguishable from Madhukar Rao . They cited judgments like G.V. Sudhakar Rao , Kallo Bai , and Mustafa , which upheld parallel confiscation proceedings under other statutes. The State also relied on an earlier Full Bench decision in Shrish Agrawal vs. State of M.P. (2003) , which had upheld the constitutionality of Sections 47-A to 47-D of the Excise Act.

Court's Detailed Analysis and Findings

The Full Bench meticulously examined various statutes with confiscation provisions (Indian Forest Act, NDPS Act, Customs Act, Essential Commodities Act, CGST Act, Drugs and Cosmetics Act, Opium Act). The Court observed a crucial distinction: wherever executive authorities are empowered to confiscate vehicles parallel to a criminal trial, the relevant statutes (Forest Act, Customs, Essential Commodities, CGST) generally provide the owner with a defence of demonstrating lack of knowledge or connivance regarding the vehicle's illegal use and having taken reasonable precautions.

The Court noted that Section 47-A of the M.P. Excise Act does not provide such a defence to the owner. It reasoned that without this crucial defence, the Collector's power of adjudication becomes a "mere formality" and "cosmetic," making confiscation practically automatic upon seizure, akin to the provision struck down in Madhukar Rao .

The judgment highlighted that while statutes like the Drugs and Cosmetics Act and the repealed Opium Act also lacked this specific defence, the power of confiscation under those Acts rested solely with the Criminal Court trying the offence, which could consider all facts during the trial. This judicial power was deemed proportionate, unlike the executive power lacking this defence.

The Court then addressed the State's reliance on precedents:

G.V. Sudhakar Rao , Kallo Bai , and Mustafa: The Court found these cases distinguishable because the statutes under consideration in those judgments (Andhra Pradesh Forest Act, MP Van Upaj Adhiniyam, U.P. Excise Act) did provide the owner with the defence of lack of knowledge/connivance in the executive confiscation proceedings, a key element missing in the MP Excise Act's Section 47-A.

Shrish Agrawal (FB): The Court declared the earlier Full Bench decision in Shrish Agrawal to be per incuriam (rendered in ignorance of relevant law). It found that Shrish Agrawal failed to consider two critical aspects:

The absence of the owner's defence of lack of knowledge/connivance in Section 47-A.

The binding precedent of the earlier Full Bench decision in Madhukar Rao (FB) , which had already addressed similar constitutional concerns regarding automatic vesting of seized property without a court finding.

Applying the doctrine of proportionality, the Court held that while deterring illegal liquor trade is a valid public interest, Section 47-A's measure of allowing executive confiscation without the owner's knowledge defence and before trial conclusion was disproportionate and violated Articles 19(1)(g) and 300-A.

Ruling on Cow Progeny Act

Regarding the Cow Progeny Act, the Court examined Section 11(5). It noted the lack of a clear procedure for confiscation and the vague reference in Rule 5 to Section 100 CrPC (which relates to search/seizure, not confiscation). Crucially, it noted the absence of a clear defence for the vehicle owner based on lack of knowledge or connivance in the confiscation process.

Referencing the Supreme Court's decision in Abdul Vahab vs. State of M.P. (2022) , which dealt with the same Act, the High Court reiterated that while parallel confiscation proceedings can be initiated, an acquittal in the criminal trial renders confiscation arbitrary and violative of Article 300-A. This implies that the confiscation under the Cow Progeny Act is intrinsically linked to the outcome of the criminal trial.

Final Decision and Implications

The Full Bench delivered the following conclusions:

M.P. Excise Act, 1915: Section 47-A is declared ultra-vires Articles 19(1)(g) and 300-A of the Constitution. Consequently, the power to order confiscation now rests solely with the Criminal Court trying the offence under Sections 46 and 47 of the Act. Section 47-D, which barred court jurisdiction after intimation of executive confiscation, becomes inoperative where confiscation orders haven't been passed.

Cow Progeny Act, 2004: While proceedings for confiscation under Section 11(5) can be initiated during the pendency of the criminal trial, the confiscation order cannot be passed before the trial concludes. The Collector/District Magistrate can only confiscate the vehicle if a conviction is recorded in the criminal trial and the vehicle's involvement along with the owner's knowledge/connivance is proven during the trial.

Writ Petition Maintainability: Writ petitions challenging such confiscation orders are maintainable if the order is passed without jurisdiction (e.g., under the now-struck-down S. 47-A of Excise Act, or under Cow Progeny Act before trial conclusion), as the availability of alternative remedy is not an absolute bar.

Recognizing the potential impact of declaring Section 47-A ultra-vires after years of its operation, the Court directed that this part of the order would apply prospectively . Specific conditions were laid out regarding its applicability to pending cases where confiscation orders have not yet been passed, and to concluded cases where appeals/revisions/petitions against confiscation orders are currently pending or fall within the statutory limitation period for challenge. Concluded and unchallenged confiscation orders where limitation has expired will not be reopened.

This landmark judgment clarifies the law on executive confiscation powers under these specific Madhya Pradesh statutes, emphasizing the importance of constitutional rights to property and trade, the necessity of adequate defence opportunities for property owners, and reinforcing the link between executive confiscation and findings by the criminal judiciary, particularly under the Cow Progeny Act.

The matters are now to be placed before the appropriate benches for further adjudication in light of these findings.