Narain v. State of Uttar Pradesh — 1987 DIGILAW 655 (ALL)

B. L. YADAV, J. ( 1 ) THIS revision is directed against the order dated 10/4/1985 passed by the sessions Judge, Mirzapur rejecting the appeal against the order dated 4/1/1985 refusing to release the Car No. U. P. L. 3552 in favour of the applicant. ( 2 ) THE brief account of the events leading to the present application is that Mool Chand and three others were challaned under section 60 of the U. P Excise Act (for short the Act) for carrying illicit liquor in 334 bottles and six bladders in the car in question belonging to the applicant, who was not made accused in that case. Mool Chand and others were convicted under section 60 of the Excise Act by the Magistrate by order dated 19/6/1984 and the car of the applicant was also confiscated. Even though motive or knowledge was attributed to the applicant nor he was made an accused, his application for release of the vehicle was rejected by the learned Magistrate and thereafter his appeal failed, against these orders the present revision has been filed. ( 3 ) LEARNED counsel for the applicant urged that as the applicant was not made a party to the proceedings under section. 60 of the Act nor he was made an accused nor he had any, knowledge about the offence being committed under section 60 of the Act and, as such in view of section 12-A (8) of the Act the application of the applicant for release of the vehicle can be allowed. Further the car was not produced in any criminal court in the enquiry or trial and the car must have been delivered to the applicant as he was entitled to possession thereof as required by section 457 of the Code of Criminal Procedure, 1973 (for short the Code ). Reliance was placed on Satpal v. State of Haryana, Ved Prakash of U. P. , Smt. Champa Devi v. State, and K. L. Subbyya v. State of Karnataka. The learned counsel for the State supported the impugned orders. ( 4 ) AS regards the first point as to whether the car of the applicant was confiscated without his being made a party to the case under section 60 of the Act and that he was afforded any opportunity before passing the impugned order. The learned counsel for the State supported the impugned orders. ( 4 ) AS regards the first point as to whether the car of the applicant was confiscated without his being made a party to the case under section 60 of the Act and that he was afforded any opportunity before passing the impugned order. The position would have been different had the applicant been made a party to the case or some motive was attributed to him or that he has got any knowledge. But in the instant case the applicant was not made a party the proceedings under section 60 of the Act nor any knowledge was attributed to him and no opportunity was given to him before passing the impugned order of confiscation. The word confiscation itself means to appropriate for the use of the State, meaning thereby that the owner of the vehicle was deprived of use. The applicant has got a fundamental right to hold and dispose of the property. The applicant has been deprived of the same without any opportunity of being heard. The proceedings for confiscation, in fact is totally independent from the offence under section 60 of the Act hence principles of natural justice are to be complied with before passing the older of confiscation. In the instant case there was no such opportunity given to the applicant nor it has been the case of opposite party that any such opportunity was given. Further no evidence has been led on behalf of the opposite party to prove that the car of the applicant was used to his knowledge or concurrence. There is nothing to indicate that it was hired for the said purpose. It has rather come in evidence that Mool Chand, the accused in the case being a relation of the applicant, borrowed the car for the purpose of taking a patient who was seriously ill, to the District Hospital. It could not, therefore, be said that the offence itself was committed either in the knowledge of the applicant or with his concurrence. In view of these facts the order for confiscation itself was manifestly erroneous and beyond the provisions of section 72 of the Act. It could not, therefore, be said that the offence itself was committed either in the knowledge of the applicant or with his concurrence. In view of these facts the order for confiscation itself was manifestly erroneous and beyond the provisions of section 72 of the Act. Under Section 72 (5) of the Act it has been specifically or avoided that no order for confiscation under this section can be made unless the owner of the vehicle is given a notice in writing informing him of the ground on which the confiscation is proposed and an opportunity of making representation or a reasonable opportunity of being heard, Nothing has been done in the present case. (See Satpal v. State of Haryana, (Supra) and Smt. Champa Devi v. State (Supra ). The other cases cited need not be referred. ( 5 ) THE next point is that even though the car was confiscated by the police but the same was not produced before any criminal court during any enquiry or trial it was used as evidence and even the order of Magistrate recording conviction against the accused persons, namely, Mccl Chand etc. did not indicate that the use of car was taken into account while passing the order of conviction. Under these circumstances the application of the applicant under section 457 of the Code ought to have been allowed. The position however would have been different if the car had been produced before a criminal court and would have been used as a piece of evidence for some purpose during enquiry or trial. I accordingly of the view that the applicants application ought to have been allowed. ( 6 ) THE matter can be viewed from another angle. There was no knowledge attributed to the applicant nor the applicant knew, that his vehicle was being used for transporting illicit material. In such cases the proof of mens rea is must. Under these circumstances, the impugned orders cannot be sustained. ( 7 ) IN view of the discussions male here in before, the present revision is allowed and the impugned orders dated 10/4/1985 and 4/1/1985 are set aside. The application of the applicant for release of car No. UPL 3552 is allowed and the applicant would be delivered possession of the vehicle forthwith. . .