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2004 DIGILAW 49 (KAR)

STATE v. M. HANEEF

2004-01-20

M.S.RAJENDRA PRASAD

body2004
M. S. RAJENDRA PRASAD, J. ( 1 ) :-------BOTH cases involve common questions of law and common arguments have been advanced by both sides. Hence, they are being disposed of by a common order. These Revision Petitions filed by the State under Sections 397 and 401, Cr. P. C. are directed against the judgments dated 27-3- 2001 and 7-4-2001 passed by the Prl. Sessions judge, Dakshina Kannada, Mangalore, in Cri. A. Nos. 9/1998 and 1o/1998, respectively wherein the learned Sessions Judge had set aside the orders of confiscation dated 14-12-1997 and 24-12-1997 passed by the authorised Officer in SDK/dtcr/135/91- 92 and SDK/dtcr/271/92-93, respectively, challenging the legality and propriety of the judgments impugned. ( 2 ) THE Court has heard the arguments of Sri C. Ramakrishna, learned Government pleader on behalf of the State of Karnataka, and Sri K, M. Nataraj, learned counsel on behalf of the respondents. ( 3 ) IN both these cases, the short question that arises for consideration is whether the order of acquittal in a criminal case for the offence under the provisions of the Excise act has anything to do so far as confiscati on proceedings are concerned. ( 4 ) THE; learned Government Pleader strenuously contended that the material on record clearly shows that the judgments impugned are illegal and improper; The learned Sessions Judge was not at all justified in arriving at the said conclusion; The learned Government Pleader also contends that the Statutory provisions in this regard are cleair, and the learned Sessions Judge had not exammed the; material on record in the right perspective. Hence he prayed for allowing the revsion petitions. ( 5 ) ON the cpntrary, the learned counsel for respondents strenuously contended that the material on record clearly shows that: the judgments impugned are legal and proper. The tearned sessions Judge had considered the facts in issue in the right perspective arid had. arrived at the right conclusion the material on. record clearly shows that the accused had been acquitted in the criminal cases and the same will have a bearing on the merits of the instant case's also. There are absolutely no grounds made out by the 'state to interfere' with the Judg- ment impugned. Hence, the learned counsel prayed for dismissal of the petitions. record clearly shows that the accused had been acquitted in the criminal cases and the same will have a bearing on the merits of the instant case's also. There are absolutely no grounds made out by the 'state to interfere' with the Judg- ment impugned. Hence, the learned counsel prayed for dismissal of the petitions. ( 6 ) THE Court has carefully perused the material on, record and has given its anxious thoughts, over the rival contentions raised at the Bar. ( 7 ) FROM the material on record, it is seen that the accused had been prosecuted in both these cases for the commission of the offence under the provisions of the Excise act and the learned Magistrate had recorded a finding of acquittal. This aspect had been brought to the notice of the learned Sessions judge and the learned Sessions Judge had relied upon a decision of this Court, reported in 1997 (3) Kant LJ 304, and had allowed the appeals' and thereby set aside the orders of confiscation of the properties concerned in both the cases. ( 8 ) AT this stage, it is necessary to quote a part of the provisions of Section 43-A{2) of the Karnataka Excise Act, which runs as under :" (2) On production of the seized property under sub-section (1), the Authorised Officer, if satisfied that an offence under this act has been committed may, whether orr not a prosecution is instituted for the commission of such offence, order confiscation of such property. "on a plain reading of the said proision, it is clear that the Authorised Officer is required to be satisfied that an offerice under the Excise Act had been committed irrespective of the fact whether the prosecutiinlhad been instituted against the accused or not. This statutory provision also makes it clear that the Authorised Officer is required to be satisfied himself Independently. It is a settled principle of law that the Courts of law will; have to, administer justice strictly in accordance with law and interpret the law keeping in mind the intention of the legislature and cannot afford to legislate. This statutory provision also makes it clear that the Authorised Officer is required to be satisfied himself Independently. It is a settled principle of law that the Courts of law will; have to, administer justice strictly in accordance with law and interpret the law keeping in mind the intention of the legislature and cannot afford to legislate. From the said provision, it is clear that the decision on the; part of the Authorised Officer is Independent In nature, in other words; It makes it clear that the judgment of acquittal passed by a Criminal Court has on rel- evafince in confiseaton prdceedings '-under the provisions of the Karnataka Excise Act. ( 9 ) IT is also pertinent to mention a judgment of the Apex Court in a decision reported in (1985) 4 SCC 573 : (1986 Cri LJ 357 : air 1986 SC 328 ), rendered in the case of divisional Forest Officer V. Sudhakar Rao, where in the Apex Court has held that the prosecution under the provisions of the Forest act and the confiscation proceedings before the Authorised Officer under the forest act are separate and distinct. ( 10 ) IT is also pertinent to mention that the Excise Act also contains a similar provision as that of the Forest Act. In view of the facts and circumstances of the cases, and the settled law under the provisions ,of the karnataka Forest Act and the Karnataka excise Act, the ratio laid down in the said decision can be pressed into service in this regard. ( 11 ) IT is also brought to the notice of the court an unreported decision of this Court rendered on 8-9-2003 in Cri. R. P. No. 467/ 2001 (since reported in 2004 AIR Kant hcr 130), wherein this Court had also expressed the similar view, while dealing with a case under the provisions of the Forest act. ( 12 ) THE discussion supra clearly goes to show that the confiscation proceedings before the Authorised Officer are separate and distinct and as such the judgment of acquittal passed by the Criminal Court will have absolutely no bearing on the confiscation proceedings before the Authorised Officer. ( 13 ) ON careful perusal of the material on record it is seen that the learned Sessions judge had disposed of both the appeals -only on this aspect. ( 13 ) ON careful perusal of the material on record it is seen that the learned Sessions judge had disposed of both the appeals -only on this aspect. In other words, the Jearned Sessions Judge had not considered the cases of the parties on other aspects. Under these circumstances, it would be in the ends of justice, if the Judgments of the learned Sessions Judge are set aside and the matters are remitted to him to consider the cases afresh after hearing both Sides and pass Suitable orders in accordance-with law. ( 14 ) FOR the foregoing reasons, the revi sion petitions are allowed. The judgments impugned are hereby set aside. The mat- ters are remanded to, the earned. Sessions judge With a direction to here both sides on all the grounds urged in the Memorandum of Appeals excepting this aspect, and, dis- pose of the same in accordence. with law. Petitions allowed. --- *** --- .