SHRISH AGRAWAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THE question which arises for determination by the Full Bench in the present case is : "Whether sections 47 -A to 47 -D of the M.P. Excise Act, 1915 (hereinafter to be referred to as the Act) are constitutionally valid -

(2.) THE M.P. Excise Act, 1915 has been amended by the M.P. Excise (Amendment) Act, 2000 (Act No. 22 of 2000) which has come into force from 1.12.2000. The penal provision in section 34 has been made more consign and deterrent if a person is convicted for an offence for manufacture, transport, import, export, collection, possession and sale of intoxicant if the quantity of the intoxicant being liquor found at the time or in the course of detection of the offence exceeds fifty bulk litres. In such a case as provided in sub -section (2) he will be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to, one lac rupees. Sub -section (3) provides that when an offence covered by clause (a) or clause (b) of sub -section (1) is committed and the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk litres, all intoxicants, articles, implements, utensils, materials, conveyance, etc. in respect of or by mean's of which the offence is committed, shall be liable to be seized and confiscated. Section 46(1) of the Act has been recast to provide for confiscation of certain articles and conveyance, etc. Section 47(1) further provides that where in any case tried by him the Magistrate, decides that anything is liable to confiscation under section 46, he shall order confiscation of the same : Provided that where any intimation under clause(a) of sub -section (3) of section 47 -A has been received by the Magistrate,' he shall not pass any order in regard to confiscation as aforesaid until the proceedings pending before the Collector under section 47 -A in respect of thing as aforesaid have been disposed of, and if the Collector has ordered confiscation of the same under sub -section (2) of section 47 -A, the Magistrate. shall not pass any order in this regard.

(3.) SECTIONS 47 -B, 47 -C and 47 -D are more relevant for the present purpose and are being reproduced as below: 47 -B. Appeal against the order confiscation - - (1) Any person, aggrieved by an order of confiscation passed under sub -section (2) of section 47 -A, may within thirty days of such order, prefer an appeal to the Divisional Commissioner of the concerned division or to any other officer authorised for the purpose by a notification of the State Government (hereinafter referred to as the Appellate Authority). Such appeal memorandum shall be accompanied by a certified copy of the order appealed against. (2) The Appellate Authority on presentation of such memorandum of appeal (shall), issue a notice to the appellant and to any other person who is likely to be adversely affected by the order that may be passed in appeal. (3) The appellate Authority after hearing the parties to the appeal, shall pass an order confirming, reversing or modifying the order of confiscation appealed against: Provided that he may pass such order of interim nature for custody, disposal, etc. of the confiscated articles during the pendency of appeal, as may appear to him just or proper in the circumstances of the .case but he shall have no power to stay the order of confiscation appealed against during the pendency of appeal. 47 -C. Revision before the Court of Session against the order of the Appellate Authority - - (1) Any party to appeal aggrieved by the final order by the Appellate Authority under sub -section (3) of section 47 -B, may, within 30 days of such order submit a petition or revision solely on the ground of illegality of such order to the Court of Session within the sessions division. (2) The Court of Session may, if it finds any illegality in the order of Appellate Authority, confirm, reverse or modify the order passed by the Appellate Authority: Provided that the Court of Session shall have no power to stay the order of confiscation of the order passed by the Appellate Authority during pendency of the petition for revision before it. 47 -D. Bar of jurisdiction of the Court under certain circumstances - Notwithstanding anything to the contrary contained in the Act, or any other law for the time in force, the Court having jurisdiction to try offences covered by clause (a) or (b) of sub -section (1) of section 34 on account which such seizure has been made, shall not make any order about the disposal, custody, etc, of the intoxicants, articles, implements, utensils, materials, conveyance, etc. seized after it has received from the Collector an intimation under clause (a) of sub -section (3) of section 47 -A about the initiation of the proceedings for confiscation of seized property.