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2004 DIGILAW 1183 (PNJ)

Shivji Ram v. State Of Punjab

2004-10-15

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. Petitioner Shivji Ram has filed this revision petition against the judgment dated 20.8.1990, passed by Additional Sessions Judge, Barnala, vide which his appeal against the order dated 29.10.1988, passed by Judicial Magistrate Ist Class, Barnala has been dismissed. 2. Vide the impugned order, truck No. PUK-7217 was ordered to be confiscated in case FIR No. 32 dated 21.1.1985 under Section 9(a) of the Opium Act (hereinafter referred to as the Act) registered with Police Station Dhanaula, while holding that the same was used for carrying illegal contraband. On 19.9.1990, at the time of the admission of this revision petition, operation of the impugned order was stayed subject to the deposit of a sum of Rs. 50,000/- by the petitioner with the Registrar (Judicial) of this Court. 3. In this case, as per prosecution version, on 21.1.1985, when the police party headed by Sub-Inspector Sudesh Kumar (PW-2) laid `Nakabandi at the canal bridge in the area of village Kot Duna, one truck bearing registration No. PUK-7217 was intercepted and stopped. The said truck was being driven by Mukand Singh and his co-accused, namely Ajit Singh and Jita Singh were sitting besides the driver in the said vehicle. On search of the vehicle, 100 gunny bags, each containing 40 kgs. of poppy husk, were found loaded in the truck. Accused Ajit Singh and Jita Singh were apprehended on the spot and the truck was also seized by the police. However, accused Mukand Singh (driver) fled away from the spot. 4. On conclusion of trial, accused Mukand Singh, Jita Singh and Ajit Singh were convicted and sentenced under Section 9(a) of the Act. 5. On 3.8.1988, after conviction, the trial Court issued notice to the petitioner, being owner of the vehicle, to show-cause as to why the truck in question be not confiscated to the State. After receiving reply to the said notice, the trial Court passed by the order of confiscation of the truck in question under Section 11 of the Act, while observing as under :- "It may be added that 100 gunny bags containing poppy husk were recovered from the truck in question on 21.1.1985. I have perused the log book in the challan file and the same is not filled in after 26.7.1984. The accused were admittedly employees of the respondent. I have perused the log book in the challan file and the same is not filled in after 26.7.1984. The accused were admittedly employees of the respondent. The respondent did not care to watch their activities and even did not discharge his own responsibility by filling the log book, to show that his intention was clear and his employees used the truck for carrying poppy husk without his knowledge. The blank log book after 26.7.1984 shows that the respondent had knowledge or reason to believe that the truck in question was used for carrying contraband articles. Therefore, the truck in question which was used on 21.1.1985 for carrying poppy husk is liable to be confiscated to the State under Section 11 of the Opium Act. I order accordingly." 6. The appeal filed by the petitioner against the aforesaid order has also been dismissed by the appellate Court. Hence, this revision petition. 7. In the ground of revision, it has been submitted by the petitioner that the learned trial Magistrate passed the impugned order of confiscation mechanically and summarily without applying its mind to the law as well as the procedure applicable in such cases. The trial Magistrate has passed the order of confiscation only on the basis of the finding recorded in the criminal case against the accused under Section 9 of the Act. The petitioner was not a party to the said criminal case. Therefore, any finding recorded in that case should not have been made the basis for passing the order of confiscation. It has been further submitted that the trial Court has failed to follow the procedure to be adopted in the matter of confiscation as provided under Section 12 of the Act. The petitioner was never afforded an opportunity to lead his evidence and to contest the evidence led by the prosecution in the main criminal case. It has been further stated that the Courts below have taken wrong inference from the log book of the truck in question and have come to a wrong conclusion that the petitioner was having the full knowledge of the use of his truck for transporting the illegal contraband. 8. After going through the grounds of revision, the impugned judgment and hearing the arguments of counsel for the respondent-State, I am of the opinion that this revision petition deserves to be allowed. 9. 8. After going through the grounds of revision, the impugned judgment and hearing the arguments of counsel for the respondent-State, I am of the opinion that this revision petition deserves to be allowed. 9. In this case, the vehicle in question, owned by the petitioner, was seized by the police, when it was being used for carrying illegal contrabands on 21.1.1985. At that time, it was being driven by Mukand Singh, while Jita Singh and Ajit Singh were sitting behind him. On search, 40 quintals of poppy husk was recovered from the truck. In the criminal case, recovery of the illegal contraband in the truck was established and the accused, who were in occupation of the truck and the illegal contraband, have been convicted and sentenced. The petitioner, who is owner of the truck, was not an accused in the criminal case. 10. Section 11 of the Act provides that any conveyance which is used in carrying the illegal contraband is liable to confiscation. Section 12 of the Act, which provides the procedure to be followed before passing the order of confiscation, reads as under :- "12. Order of confiscation by whom to be made :- When the offender is convicted or when the person charged with an offence in respect to any opium is acquitted, but the Magistrate decides that the opium is liable to confiscation, such confiscation may be ordered by the Magistrate. Whenever confiscation is authorized by this Act, the officer ordering it may give the owner of the thing liable to be confiscated an option to pay in lieu of confiscation, such fine as the officer thinks fit. Whenever confiscation is authorized by this Act, the officer ordering it may give the owner of the thing liable to be confiscated an option to pay in lieu of confiscation, such fine as the officer thinks fit. When an offence against this Act has been committed, but the offender is not known or cannot be found, or when opium not in the possession of any person cannot be satisfactorily accounted for, the case shall be enquired into and determined by the Collector of the District or Deputy Commissioner, or by any other officer authorised by the State Government in this behalf, either personally or in light of his office, who may order such confiscation : Provided that no such order shall be made until the expiration of one month from the date of seizing the things intended to be confiscated or without hearing the persons (if any) claiming any right thereto and the evidence (if any) which they produce in support of their claim." 11 In this case, on 3.8.1988, after the conviction, the trial Court issued a show-cause notice to the petitioner, being owner of the truck. On 6.10.1988, the petitioner appeared before the trial Magistrate in response to the said notice. He sought time to file reply. On 21.10.1988, reply was filed by the petitioner, wherein he took the stand that Mukand Singh, Ajit Singh and Jita were employed as driver/conductors of truck No. PUK-7217 and put forth the defence that he had never asked them to transport the poppy husk in his aforesaid truck and that he had no knowledge regarding use of the vehicle for the transportation of the contrabandi poppy husk. The case was adjourned to 27.10.1988 for consideration, on which date arguments were heard. On 29.10.1988, the order of confiscation was passed. From the record, it is clear that the petitioner was not provided any opportunity to lead evidence in support of his stand, taken in the reply. In my opinion, it was mandatory for the trial Magistrate to provide an opportunity to the petitioner to lead evidence. Section 12 of the Act clearly provides that no order of confiscation shall be made without hearing the persons claiming any right and provide him an opportunity and the evidence, if any, which they produce in support of their claim. In my opinion, it was mandatory for the trial Magistrate to provide an opportunity to the petitioner to lead evidence. Section 12 of the Act clearly provides that no order of confiscation shall be made without hearing the persons claiming any right and provide him an opportunity and the evidence, if any, which they produce in support of their claim. The appellate Court, in my opinion, has proceeded on the wrong presumption that before passing the order of confiscation, only reply of the owner of the vehicle is to be considered. An order of confiscation is affecting the civil rights of a person and no such order can be passed by the Court under Section 11 of the Act without providing an opportunity to lead evidence and of hearing to the owner of the vehicle, particularly when the said owner is not a party in the main criminal case. The petitioner cannot be denied the opportunity to lead evidence on the ground that from the log book taken into possession by the police at the time of seizure of the truck, it is clear that the petitioner was having the knowledge of the vehicle being used for carrying illegal contraband. Some observation made by the Courts below in this regard is solely based upon the wrong inference drawn from the aforesaid log book. On the basis of such inference, right of the petitioner to establish his claim cannot be denied. Thus, in the instant case, the trial Magistrate has committed grave procedural illegality while passing the impugned order and the said order is liable to be set aside. 12. In view of the aforesaid, this revision petition is allowed and the impugned order/judgment are set aside. The matter is remanded with a direction to the trial Court to pass the order in accordance with law, after providing an opportunity to lead evidence and hearing to the petitioner.