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2004 DIGILAW 985 (RAJ)

State of Rajasthan v. Ram Singh

2004-07-16

N.N.MATHUR

body2004
JUDGMENT 1. - By way of instant petition under section 482 Cr.P.C., the State of Rajasthan through the Excise Commissioner has challenged the order dated 5.3.2002 passed by the learned Judicial Magistrate, Sadul Shahar, whereby he rejected the application filed by the District Excise Officer, Sri Ganganagar to transfer the amount of Rs. one lac in their account deposited by the first respondent-Ram Singh pursuant to the order of this Court passed in D.B. Civil Writ Petition No. 2118/2001. 2. Briefly stated the facts of the case are that on 31.3.2001, a jeep bearing registration No. 13-C-6136 was found illegally carrying pouches of country liquor. The vehicle was intercepted by the police as the liquor was being carried without permit or license. A case was registered for the offence under section 54 of the Rajasthan Excise Act, hereinafter referred to as 'the Act'. It is relevant to state that the State Legislature has promulgated the Rajasthan Excise (Amendment) Ordinance, 2000, whereby Section 54-A has been inserted and Section 69 of the Act has also been amended and as per amended sub-section (6) of Section 69 of the Act, it has been provided that whenever any means of conveyance is seized in connection with commission of an offence under the Act, the Excise Commissioner or any officer authorised in this behalf by the State Government shall have, and notwithstanding anything contained in any law for the time being in force, any Court, Tribunal or other authority shall not have, jurisdiction to make order with regard to the possession, delivery, disposal, release of such conveyance. In view of the amended provision, the jurisdiction of the Court has been taken away with respect to delivery of the conveyance seized in connection with commission of an offence under the Act. The constitutional validity of the said provision came to be challenged by various parties before this Court. 3. The Additional Commissioner (Excise) in accordance with the provisions of Section 69(4) of the Act after hearing owner of the vehicle and before ordering confiscation, gave an option to the owner to pay in lieu of confiscation a fine of Rs. Two lacs by order dated 18.5.2001. %.e first respondent challenged the said order by way of petition which came to be registered as D.B. Civil Writ Petition No. 2118/2001. Two lacs by order dated 18.5.2001. %.e first respondent challenged the said order by way of petition which came to be registered as D.B. Civil Writ Petition No. 2118/2001. In fact, number of writ petitions were filed challenging the constitutional validity of Section 69 of the Act. The identical interim relief was granted to the first respondent in the aforesaid writ petition as follows : "The confiscated vehicle bearing No. RJ-13-C-6136 which is involved in this matter, shall be released to the petitioner, on his depositing Rs. 1,00,000/- by cash and furnishing security for the remaining amount of Rs. 1,00,000/- within two weeks from today. The petitioner shall give an undertaking that he will not alienate or encumber the vehicle till the case is disposed of and shall also undertake to produce the vehicle, and make himself available for interrogation as and when required by the authorities concerned." 4. The time period for depositing the amount was extended by order dated 12.7.2001 for a further period of ten days. The first respondent instead of depositing the amount with the District Excise Officer, deposited the amount of Rs. one lac and security before the Judicial Magistrate, Sadul Shahar. The deposit was accepted by the Court and the vehicle was released by order dated 16.7.2001. It has been brought to my notice that irrespective of the fact that the order of the Division Bench was brought to the notice of the learned Magistrate and it was contended that he had no jurisdiction to release the vehicle but he accepted the deposit and released the vehicle. The writ petition ultimately came to be dismissed by the order of the Division Bench dated 9.1.2002. After dismissal of the writ petition, the accused owner was required to deposit the remaining amount of Rs. one lac, which the learned Magistrate directed to deposit with the Excise Department and the owner of the vehicle i.e. the first respondent deposited the said amount on 4.3.2002. At this stage, the District Excise Officer and the Excise Inspector (Rural), Sriganganagar submitted an application before the learned Magistrate that the amount of Rs. one lac deposited by the first respondent be transferred to the account of the Excise Department, as the amount was deposited by the accused in terms of the order passed under section 69(4) of the Act and the order dated 30.5.2001 passed by this Court. one lac deposited by the first respondent be transferred to the account of the Excise Department, as the amount was deposited by the accused in terms of the order passed under section 69(4) of the Act and the order dated 30.5.2001 passed by this Court. However, the learned Magistrate rejected the application by the impugned order dated 5.3.2002 on the ground that if the said amount of Rs. one lac was transferred the Excise Department then if the owner violates the terms of the custody of the vehicle, then the Court will not be able to forfeit the amount if the owner surrenders the vehicle to the Court then also the Court would not be able to return the amount. 5. Having heard learned counsel for the petitioners, I am of the view that the petition deserves to be allowed. The powers conferred on the judicial Courts under sections 451 to 457 have been curtailed by the amended provisions of Section 69 with respect to the vehicles seized in connection with the commission of an offence. under the Rajasthan Excise Act. The validity of the provisions has been upheld by this Court and the Apex Court. Thus, according to the amended provisions, where any conveyance is seized in connection with the commission of an offence under the Rajasthan Excise Act, a report of the seizure is required to be made to the authorised officer of the Excise Department irrespective of institution of any prosecution and such officer on being satisfied that the said means of conveyance was used for commission of offence, order its confiscation. The authorised officer before ordering confiscation, may give an option to the owner of the vehicle to pay in lieu of confiscation, a fine equivalent to the market price of the said means of vehicle. In the instant case, such an order was passed by the authorised officer. The said order dated 18.5.2001 was subject-matter of challenge in the above referred writ petition. In terms of the interim order, the first respondent-Ram Singh deposited 50% of the amount and furnished a solvent security for the remaining amount. Learned Magistrate had no jurisdiction to release the vehicle in terms of the order of this Court. Be that as it may, after dismissed of the writ petition, learned Magistrate himself directed the remaining amount of Rs. Learned Magistrate had no jurisdiction to release the vehicle in terms of the order of this Court. Be that as it may, after dismissed of the writ petition, learned Magistrate himself directed the remaining amount of Rs. one lac to be deposited with the Excise Department and, as such, he ought to have, on his own, transferred the amount of Rs. one lac already deposited, to the account of the Excise Department. Even after an application was made by the department, the learned Magistrate on wholly unsustainable considerations rejected the application and withheld the amount of Rs. one lac. Learned Magistrate failed to consider that the offence being under the special Statute, dealing in the property in question is governed by the provisions of the said Statute and the amount in question is clearly the property of the Excise Department and cannot be retained by the learned Magistrate. The impugned order suffers from manifest illegality and, as such, deserves to be quashed and set aside. 6. Consequently, the Miscellaneous Petition is allowed. The order of the learned Judicial Magistrate, Sadul Shahar dated 5.3.2002 passed in Criminal Case No. 440/2001 "State v. Shankerlal " is quashed and set aside. The application filed by the District Excise Officer, Sriganganagar is allowed. It is directed that the learned Judicial Magistrate, Sadul Shahar shall transfer the amount of Rs. one lac with interest thereon, if any earned, in the account of the District Excise Officer, Sriganganagar. The record be returned forthwith.Petition allowed. *******