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CASE NO.: Appeal (crl.)  1649 of 2007

PETITIONER: Kailash Chandra

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 30/11/2007

BENCH: Dr. ARIJIT PASAYAT & TARUN CHATTERJEE & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1649 OF 2007 (Arising out of SLP (Crl.) No.3518 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Madhya Pradesh High Court,  Indore Bench, dismissing the revision petition filed by the  appellant.   

3.      Background facts in a nutshell are as follows:                   

       On 26.04.1996, in the truck bearing registration No.MOU  9470, Anokhilal Porwal the driver of the appellant was  transporting 294 boxes each containing 48 quarters xxx-Rum  DryGin, Beer and foreign liquor in the night at about 1.00  A.M. The truck was passing through village Naganghat  Meghnagar. The Station House Officer of P.S. Kakanwana  received information from the informant about passing of the  truck, upon which he stopped the truck at Naganghat Barrier  and seized the truck with the stock of foreign liquor. Crime  No.62/96 was registered at Kakanwani P.S. under Section 34  of the M.P. Excise Act 1915 (in short ’the Act’) and after due  investigation, filed the charge-sheet before the learned Judicial  Magistrate First Class against the driver Anokhilal Porwal. The  truck was and is still owned by the appellant-Kailashchandra.  The Trial Court, after completion of the trial, by judgment  dated 19.03.2001 convicted the accused and sentenced him to  R.I. for one year and a fine of Rs.2,000/-, in default of  payment of fine, to suffer further R.I. for two months and also  issued show-cause notice to the appellant for confiscation of  the truck as per provision under Section 46 of the Act 1915.  The appellant submitted the reply, but the trial court was not  satisfied therewith and ordered for confiscation of the truck.  Against this order, the appellant Kailashchandra submitted  appeal (Cri. A.No. 25/2001) whereby the lower Appellate Court  remanded the case back by order dated 29.11.2001 on the  ground that Supratdar was not served with the notice for  confiscation of the truck personally.

The Trial Court registered Misc. Criminal Case  No.34/2000 and again issued show-cause notice to the  Supratdar/appellant. The appellant submitted his reply and  also got himself examined as well as witness Onkar. Trial

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Court, again passed the order of confiscation of the truck on  07.03.2000. This order was again challenged by the appellant  in Crl. A.No.24/03 by judgment dated 12.09.2003. Against  this judgment/order, the appellant Kailashchandra filed  Cri.Rev.No. 773/03 before the High Court and the High Court  again remanded the case back to the lower Appellate Court  on the ground that the lower Appellate Court had not  mentioned under which provision of law (whether new or old)  the appeal was filed and to decide afresh and also issued  direction to the Trial Court to see whether the accused  Anokhilal filed any appeal and if any filed, what was the fate  of that appeal. The lower Appellate Court, in view of the  aforesaid direction issued by the High Court, heard both the  parties in detail and decided all the issues. According to the Trial Court, a Criminal case was  registered by the police against accused Anokhilal with regard  to illegal transportation of foreign liquor in the truck on  26.04.1996. Therefore, the provision of confiscation of  Section 46 of the Act, will apply and the amended provision of  Section 47 and 47-A substituted by M.P. Excise Act (Act No.  XXII of 2000) which came into force from 04.08.2000, will not  apply and final disposal of the criminal case alongwith  Section 46 of the Act read with Section 452 of the Code of  Criminal Procedure, 1973 (in short ’Cr.P.C.’) will apply. The  lower Appellate Court did not accept the arguments advanced  by the Public Prosecutor that the amended provision of the  Act, Section 47-A and B shall apply because the judgment  was passed after enforcement of the Amended Act of 2000.  The Lower Appellate Court, according to the High Court, had  rightly decided this issue because confiscation is a penal  provision and, therefore, in a pending matter, prior to  amendment, the amended provision will not apply and there  is no such specific provision in the Amended Act of 2000, for  application of new provision for confiscation of the  conveyance and other articles, involved in the offence in a  pending case.  

4.      Before the High Court the stand of the appellant was that  he was only the owner of the truck and was not present in the  truck at the time of seizure along with illicit liquor. The driver  Anokhilal Porwal without his consent and permission took the  truck and, therefore, the owner could not be penalized.    

5.      The High Court noted that the Trial Court and the First  Appellate Court had considered this aspect at length and  recorded concurrent findings of the fact that without  knowledge of the owner of the truck, such a huge quantity of  foreign liquor and that too going towards Gujarat, where liquor  business is prohibited was not possible.  Accordingly, the  revision petition was dismissed.        

6.      In support of the appeal, learned counsel for the  appellant submitted that the Courts below have not  appreciated the factual position correctly.  Alternatively it was  submitted that under Section 47, as it stood before  amendment, was applicable to the facts of the case and in lieu  of confiscation fine can be imposed.  

7.      Learned counsel for the respondent, on the other hand,  submitted that factual findings have been recorded to  conclude that the plea taken by the owner-appellant about his  lack of knowledge is clearly untenable. So far as the  alternative submission is concerned, it is submitted that the

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provisions empower the Magistrate of two alternatives. One is  to direct confiscation or in the alternative to give the owner of  the thing liable to be confiscated option to pay such fine in lieu  of confiscation as Magistrate thinks fit.  This alternative was  not suggested and also the appellant had taken the stand that  the order of confiscation was improper.   

8.      Sections 46 and 47 (before amendment) read as follows:

"46. Liability of certain things to confiscation:

(1)     Whenever an offence has been committed  which is punishable under this Act, the  intoxicant materials, still, utensil,  implement or apparatus in respect of by  means of which such offence has been  committed shall be liable to confiscation.

(2)     Any intoxicant lawfully imported,  transported, manufactured, held in  possession or sold along with or in  addition to any intoxicant liable to  confiscation under sub-section (1), and  the receptacles, packages and coverings  in which any such intoxicant materials,  still, utensil, implements or apparatus as  aforesaid is or are found, and the other  contents if any, of the receptacles or  packages in which the same is or are  found, and the animals, carts, vessels,  rafts or other conveyance used in  carrying the same, shall likewise be liable  to confiscation.

Provided that no animal, carts, vessels, rafts  and other conveyance shall be liable to  confiscation if it is proved that they are not the  property of the offender and if the owner  thereof establishes that he had no reason to  believe that such offence was being or was  likely to be committed."

47. Order of confiscation \026 (1) Where in any  case tried by him the Magistrate decides that  anything is liable to confiscation under Section  46, he may either order confiscation or may  give the owner of the thing liable to be  confiscated, an option to pay, in lieu of  confiscation, such fine as the Magistrate think  fit."           

9.      According to the proviso to Section 46, the burden is on  the owner of the property to establish that he had no reason to  believe that such offence was being committed or was likely to  be committed.  It provides that no animals, carts, vessels, rafts  and other conveyance shall be liable to confiscation, if it is  proved that they are not the property of the offender and if the  owner establishes that he has no reason to believe that such  offence was being or was likely to be committed.  As noted  above, the owner has to establish the aforesaid facts.      

10.     The Trial Court, first Appellate Court and the High Court  have concluded that the appellant has not established his lack

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of knowledge.   

11.     Coming to the alternative submission relating to payment  of fine in lieu of confiscation we find that the Magistrate had  not indicated the alternative to the appellant.

12.     On the facts of the case, we direct that the vehicle shall  be released to the appellant on payment of a sum of  Rs.30,000/- as fine.  The amount is to be deposited within a  period of four months from today.  If the deposit is not made  within the aforesaid time, this order shall not operate and  appeal shall be treated to have been dismissed.