Mukesh Kumar Agrawal Vs State of Chhattisgarh

1. This petition under Section 528 of the BNSS, 2023 is directed against the order dated 09.01.2025 (Annexure P-1) passed by the learned Fourth Additional Session Judge, Raipgarh, in Criminal Revision No.145/2024, by which the learned Sessions Judge has dismissed and affirmed the order passed by the learned District Magistrate, Raigarh. Learned District Magistrate without giving opportunity of hearing and not letting the petitioner to lead evidence or any provisions of law, only served the notice to the petitioner, who is the registered owner of the seized vehicle bearing no. CG 13 AV 8881, valuing approximately five to six lakhs.

¶16

2

¶17

1. The petitioner's vehicle Maruti Brezza bearing registration No.CG 13 AV 8881 was found involved in commission of offence under Section 34(2), 59(a) and 36 of the Excise Act, 1915 and consequently, confiscation proceeding was initiated by the Collector, Raigarh under Section 47-A of the Act of 1915 and ultimately, by order dated 18.11.2024 the vehicle was directed to be confiscated, being aggrieved by the order dated 18.11.2024 the petitioner had filed revision before the learned Fourt Additional Sessions Judge, Raigarh which too got dismissed vide order dated 09.01.2025. 3. Mr.Sanjay Agrawal, learned counsel for the petitioner, would submit that the petitioner is registered owner of the said vehicle and he has only been served with show-cause notice and thereafter the provisions contained in Section 47-A (3) (a) to (d) of the Act of 1915 have been followed in its breach. The petitioner has been deprived of making a representation against proposed confiscation and he has not given any opportunity to lead evidence. As such, both the impugned orders deserve to be set aside.

¶18

On the other hand, Ms Priya Sharma, learned Panel Lawyer for the respondent/State, would support the impugned order and submit that vehicle has rightly been confiscated and appeal & revision have rightly been dismissed by the learned Sessions Judge. As such, concurrent findings recorded by three authorities are not liable to be interfered with and the present petition deserves to be dismissed.

¶19

I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

¶20

Section 47-A of the Act of 1915 was inserted in the Act of 1915 by M.P.Act No.22 of 2000 w.e.f. 4.8.2000 . Sub-section (2) of Section 47-A of Act of 1915 provides for confiscation. It can be exercised if Collector is satisfied that an offence covered by clause (a) or clause (b) of subsection (1) of Section 34 has been committed and where the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk liters he may, on the ground to be recorded in writing,

¶21

3

¶22

order the confiscation of the intoxicants, articles, implements, utensils, materials, conveyance etc. so seized.

¶23

Sub-section (3) of Section 47-A of the Act of 1915 provides as under:-

¶24

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

¶25

(a) sent an intimation in a form prescribed by the Excise Commissioner about initiation of proceedings for confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance etc. to the court having jurisdiction to try the offence on account of which the seizure has been made;

¶26

(b) issued a notice in writing to the person from whom such

¶27

intoxicants, articles, implements, utensils, materials, conveyance etc. have been seized and to any person staking claim to it and to any other person who may appear before the Collector to have an interest in it;

¶28

(c) afforded an opportunity to the persons referred to in clause

¶29

(b) above of making a representation against proposed confiscation;

¶30

(d) given to the officer effecting the seizure under subsection (1) and to the person or persons who have been noticed under clause (b) a hearing.”

¶31

A careful perusal of the aforesaid provisions would show that as per clause (a) of sub-section (3) of Section 47-A of the Act of 1915, the Collector has to send an intimation in the form prescribed by the Excise Commissioner about the initiation of proceedings for confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance etc. to the court having jurisdiction to try the offence on account of which the seizure has been made. The Collector is further obliged to issue a notice in writing to the person from whom such intoxicants, articles, implements, utensils, materials, conveyance etc. have been

¶32

4

¶33

seized and to any person staking claim to it and to any other person who may appear before the Collector to have an interest in it.

¶34

The Madhya Pradesh High Court in the matter of Rajendra Kumar Gupta v. State of M.P. and another has held that issuance of notice to the driver or the person from whom vehicle was seized is mandatory and order of confiscation passed without hearing the person from whose possession the illicit liquor or contraband is seized is illegal.

¶35

Clause (c) of sub-section (3) of Section 47-A of the Act of 1915 provides an opportunity to the persons referred to in clause (b) above of making a representation against proposed confiscation.

¶36

In the matter of Khem Chand v. Union of India and others , Their Lordships of the Supreme Court have considered Article 311(2) of the Constitution of India which provides that no person shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against action proposed to be taken in regard to him. It has been held that an opportunity to make representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and observed as under:-

¶37

“19. To summarise: the reasonable opportunity envisaged by the provision under consideration includes:

¶38

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are

¶39

based;

¶40

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally

¶41

(c) an opportunity to make his representation as to why the proposed punishment should not be inflected on him, which

¶42

5

¶43

he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.

¶44

In short the substance of the protection provided by rules, like R. 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in S. 240(3) of the Government of India Act, 1935 so as to give a statutory protection to the government servants and has now been incorporated in Art.311(2) so as to convert the protection into a

¶45

constitutional safeguard.”

¶46

Similarly, an opportunity to the person referred in clause (c) of making a representation against proposed confiscation though it is not specifically mentioned in clause (c) of sub-section (3) of Section 47-A of the Act of 1915, that the material collected in support of confiscation should also be supplied. In the considered opinion of this Court, the supply of the material on the basis of which opinion has been formed for confiscation of vehicle in question is included in the opportunity as contemplated under Section 47-A(3)(c) of the Act of 1915. To enable the person to defend himself properly, it is necessary that the material on the basis of which opinion has been formed would also be supplied.

¶47

Likewise, the Collector while confiscating the seized intoxicants, articles, implements, utensils, materials, conveyance is also obliged to give a hearing to the person mentioned in clause (b) of sub-section (3) of Section 47-A of the Act of 1915.

¶48

The word 'hearing' has been defined in Black's Law Dictionary, 6th page 721 as under:-

¶49

The introduction and admissibility of evidence is usually mere lax in a hearing than in a civil or criminal trial (see e.g. 42 U.S.C.A. $ 405(b) which provides for admissibility of evidence at social security hearings that would otherwise be inadmissible

¶50

6

¶51

at regular trial).

¶52

Hearings are extensively employed by both legislative and administrative agencies and can be adjudicative or merely investigatory. Adjudicative hearings can be appealed in a court of law. Congressional committees often hold hearings prior to enactment of legislation; these hearings are then important

¶53

sources of legislative history.”

¶54

The Advanced Law Lexicon-2005th edition defines “hearing” as the trial of a suit is called a “hearing” and technically considered, this includes not only introduction of the evidence and arguments of the counsels, but the pronouncing of the decree by the presiding officer.

¶55

The Patna High Court in the matter of Sheikh Abdul Rahman v. Shiblal Sahu and others defined the “hearing” as a judicial session held for the purpose of deciding issues of fact or that of law; in administrative law, presentment of argument by the affected individual to the decision making authority.

¶56

In the matter of Kanaran Nambiar v. Ramunni Nambiar the Kerala High Court has held that “hearing” as used in the Code of Civil Procedure does not mean the 'hearing of arguments' only. It refers to all the stages of the trial of a suit namely, the settling of issues, taking of evidence and hearing of arguments or 'other proceedings tendency to a final adjudication of the suit.

¶57

Thus, in the light of legal provisions noticed hereinabove and conditions precedent for passing the order of confiscation and principles of law noticed, it is quite vivid that before confiscating the seized intoxicants, articles, implements, utensils, materials, conveyance etc. as mentioned in Section 47-A (3) (a) of the Act of 1915, the Collector is obliged to send an intimation in the prescribed form about the initiation of proceedings for confiscation of seized articles to the court having jurisdiction to try the offence on account of which the seizure has been made. The Collector is further obliged to issue 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

¶58

7

¶59

before the Collector to have an interest in it and thereafter he has to afford an opportunity to the persons referred to in clause (b) of making a representation against proposed confiscation and lastly, he is obliged to give a hearing to the officer effecting the seizure under sub-section (1) and to the person or persons who have been noticed under clause (b) a hearing.

¶60

Reverting to the facts of the present case in light of the aforesaid principle of law noticed hereinabove, it is quite vivid that the petitioner is registered owner of the said vehicle, but the Collector while confiscating the proposed vehicle only issued show-cause notice, but did not supply any material in support of proposed confiscation at any point of time. Photocopies of the records have been produced which reflect the same.

¶61

As such, it appears that neither the petitioner was given documents in support of seized article by the Collector nor he was given any material relied upon by the State and only an opportunity to file reply and written submission was granted. No opportunity was granted to the petitioner to adduce any evidence in support of his case. No evidence was even led by the officer seizing the said vehicle, as such, order of confiscation is clearly in teeth of the provisions contained in Section 47A (3) (a) to (d) of the Act of 1915. The petitioner was not afforded an opportunity by the Collector to make a representation against proposed confiscation nor he was allowed to lead evidence. As such, order has been passed by the Collector only which has been affirmed by the appellate authority and the revisional authority. As such, clauses (b), (c) and (d) of sub-section (3) of Section 47-A of the Act of 1915 have been followed by the Collector in its breach, which is apparent and evident from perusal of the confiscation proceedings.

¶62

Consequently, it is held that order of confiscation passed by the Collector as affirmed by the learned Fourth Additional Session Judge, Raigarh in Criminal Revision No. 145/2024 arising out of order dated 18.11.2024 passed in Revenue Case No. 36/B-121/2023-24 is clearly in teeth of the provisions contained in Section 47-A(3) (a) to (d) of the Act

¶63

8

¶64

of 1915 and as such, it is liable to be set aside and is hereby set aside. The petitioner's vehicle be released forthwith.

¶65