KAILASH CHANDRA v. STATE OF M.P

Citation: [2007] 12 S.C.R. 778

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, TARUN CHATTERJEE, LOKESHWAR SINGH PANTA

Case summary

KAILASH CHANDRA v. STATE OF M.P.pdf

Judgment text

KAILASH CHANDRA V. STATEOFM. P. NOVEMBER 30, 2007 [DR. ARIJIT PASAYAT, TARUN CHATTERJEE AND LOKESHWARSINGHPANTA,JJ. ] Madhya Pradesh Excise Act, 1915-ss. 46and47---0ffence under the Act-Committedby means ofa truck-Confiscation ofthe truck- Courts below finding that owner oftruck failed to establish lack of knowledge ofthe offence-Propriety ofconfiscation-Held: Burden to establish lack ofknowledge ofoffence being on the owner ofthe ~ property, owner having/ailedto establish the same, property liable to be confiscated-However, in the facts ofcase, fine imposed in lieu of confiscation-Code o/Criminal Procedure, 1973-s. 452. Police seized truck of the appellant with the stock of foreign liquor. Trial Court convicted the driver ofthe truck u/s 34 ofthe M. P. Excise Act, 1915. Trial court also passed the order of confiscation ofthe truck u/s 46 ofthe Act, holding that the offence was within the knowledge of the owner. The first appellate court confirmed the finding of trial court.

High Court dismissed the revision petition upholding the findings ofthe Courts below. In appeal to this Court, appellant contended that factual position had not been considered correctly by the courts below. Alternatively it contended that in lieu ofconfiscation, fine could be imposed u/s 47. Disposing of the appeal, the Court _, 4 -HELD: 1. According to the proviso to Section 46 ofM. P. Excise Act, 1915 the burden is on the owner of the property to establish that he had no reason to believe that such offence was being committed orwas likely to be committed. Itprovides that no animals, t r r-· with the stock of foreign liquor. Crime No. 62/96 was registered at Kakanwani P. S. under Section 34 ofthe 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 ofthe trial, by judgment dated 19. 03. 2001 convicted the accused and sentenced him to R. I. for one year and a fine ofRs. 2,000/-, in default ofpayment offine, 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 ofthe 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 ofthe 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 himselfexamined as well as wit:nes. 5 Onkar.

Trial 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 oflaw (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 ofthat 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 ofSection 46 ofthe Act, will apply and the amended provision ) . , of Section 47 and 47-A substituted by M. P. Excise Act (Act No. XXII of2000) which came into force from 04. 08. 2000, will not apply and final disposal ofthe criminal case alongwith Section 46 ofthe Act read with Section 452ofthe Code ofCriminal 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 ofthe Act, ~ Section 47-A and B shall apply because the judgment was passed after enforcement ofthe Amended Act of2000.

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 ofnew provision for confiscation ofthe conveyance and other articles, involved in the offence in a pending case. 4. Before the High Court the stand ofthe appellant was that he was 1 only the owner ofthe truck and was not present in the truck at the time ofseizure 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 ofthe fact that without knowledge ofthe owner ofthe truck, such a huge quantity offoreign liquor and that too going towards Gujarat, where liquor business is prohibited was not possible. Accordingly, the revision petition was dismissed t 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 ofthe 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 ofknowledge is clearly untenable. So far as the alternative submission is concerned, it is submitted that the ~ ,.

provisions empower the Magistrate oftwo alternatives. One is to direct confiscation or in the alternative to give the owner ofthe thing liable to be confiscated option to pay such fine in lieu ofconfiscation as Magistrate thinks fit. This alternative was not suggested and also the appellant had taken the stand that the order ofconfiscation was improper. 8. Sections 46 and 47 (before amendment) read as follows: "46. Liability ofcertain things to confiscation: (l) Whenever an offence has been committed which is punishable under this Act, the intoxicant matetials, 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 intoxiLant 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 ifany, ofthe 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 ifit is proved that they are not the property ofthe offender and ifthe owner thereofestablishes that he had no reason to believe that such offence was being or was likely to be committed. " 47.

Order of confiscation - (I) Where in any case tried by him the Magistrate decides that anything is liable to confiscation under Section 46, he rnay 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 ofthe 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 ifthe 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 'frial Court, first Appellate Court and the High Court have concluded that the appellant has not established his lack ofknowledge. 11. Coming to the alternative submission relating to payment offine 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 ofRs. 30,000/- as fine. The amount is to be deposited within a period offour months from today. Ifthe deposit is not made within the aforesaid time, this order shall not operate and appeal shall be treated to have been dismissed. K. K. T. Appeal disposed of.