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2006 DIGILAW 130 (RAJ)

Bhanwarlal v. State of Rajasthan

2006-01-12

GOVIND MATHUR

body2006
Judgment Govind Mathur, J.-The controversy involved in this writ petition runs in very narrow compass, therefore, with the consent of Counsel for the parties, the writ petition is heard for final disposal at admission stage. 2. The facts in brief necessary for adjudication of present writ petition are that the petitioners, who are residents of village Lohawat in Tehsil Phalodi, District Jodhpur are real brothers. They were served with two separate notices dated 13.03.2002 issued by the Inspector, Excise, Phalodi Circle, Phalodi making a demand for the amount of Rs. 33,00,000/-against the sureties given by them for a licence of LPH Jodhpur Group for the year 2001-02. 3. On receiving the notices dated 13.03.2002 the petitioners immediately, by the communication dated NIL, denied their liability by stating that they never gave any surety or guarantee for the contract for which demand was made and recovery notices were issued. The District Excise Officer (recovery), Jodhpur served notices dated 08.08.2002 which are on record as Annexures-5 and 6 upon the petitioners under Sections 256 and 257 of the Rajasthan Land Revenue Act, 1956 for effecting recovery of demand of Rs. 39,11,417/-against the surety said to be given by the petitioners for LPH License for the year 2001-02 for Jodhpur-Shergarh-Luni Group. 4. The petitioners again by submitting representation to the Commissioner, Excise, Udaipur denied that they ever submitted any surety as stated in the notice dated 08.08.2002. The petitioners in the meantime also preferred a complaint before the Court of Judicial Magistrate No. 3, Jodhpur lodging a criminal case under Sections 419, 420, 467, 468, 471 and 120-B IPC against Shri Ramnarain Godara, Somant Singh, Excise Inspector, Jodhpur, West Circle and District Excise Officer, Jodhpur. Learned Judicial Magistrate No. 3, Jodhpur sent the complaint for necessary investigation under Section 156(3) CrPC to Station House Officer, Police Station, Udaimandir, Jodhpur. A first information report thereupon was accordingly registered by the investigating agency at Police Station, Udaimandir. 5. As stated above, the petitioners also submitted a representation to the Commissioner, Excise, Udaipur stating therein that they never submitted any surety as averred in the notices dated 08.08.2002 and the notices dated 13.03.2002. The Commissioner, Excise, Udaipur after considering the representation submitted by the petitioners passed an order dated 211.2002 staying recovery proceedings against the petitioners till disposal of criminal cases lodged at the instance of the petitioners. 6. The Commissioner, Excise, Udaipur after considering the representation submitted by the petitioners passed an order dated 211.2002 staying recovery proceedings against the petitioners till disposal of criminal cases lodged at the instance of the petitioners. 6. During investigation the Investigating Officer submitted an application before the Court of Judicial Magistrate No. 3, Jodhpur seeking instructions for District Excise Officer, Jodhpur, to supply the original sureties said to be executed by the petitioners for getting their signatures verified by the Forensic Science Laboratory. The learned Judicial Magistrate No. 3, Jodhpur by a communication dated 211.2002 instructed the District Excise Officer, Jodhpur to hand over the original documents referred above to the investigating officer and the Investigating Officer was further instructed to keep those documents with case diary and then to send the same for verification of the signatures by Forensic Science Laboratory. An instruction was also given to keep the original documents with absolute security and secrecy. 7. After receiving the instructions under communication dated 211.2002 from the Judicial Magistrate No. 3, Jodhpur, the District Excise Officer submitted an application before the learned Judicial Magistrate No. 3, Jodhpur to permit him to hand over original documents to the Investigating Officer after effecting recovery of revenue from the petitioners. The Judicial Magistrate No. 3, Jodhpur accordingly passed an order dated 211.2002 permitting the Investigating Officer to procure original documents from the District Excise Officer, Jodhpur after execution of recovery proceedings. 8. The Commissioner, Excise, thereafter passed an order dated 112.2002 cancelling his earlier order dated 211.2002 by giving permission to Additional Commissioner, Excise, Jodhpur and District Excise Officer, Jodhpur to execute recovery proceedings against the petitioners in pursuant to notice dated 08.08.2002. The District Excise Officer, Jodhpur, thereafter made attachment of the immovable property of the petitioners and proceeded for auction of property attached. Being aggrieved by the same present writ petition is preferred by the petitioners claiming reliefs as under:- “(i) by an appropriate writ, order or the direction the order dated 112.2002 (Annexure-18) may kindly be quashed and set aside. (ii) by an appropriate writ, order or the direction that the (Annexures-16 and 17) auction proceeding may kindly be quashed and set aside. (ii) by an appropriate writ, order or the direction that the (Annexures-16 and 17) auction proceeding may kindly be quashed and set aside. (iii) byan appropriate writ, order or the direction that the respondent department should be directed to hand over the original copies of the departments to the Investigating Officer, who is investigating the case in connection with the FIR No. 507/2002 (Annexure-8), Police Station Udaimandir, Jodhpur.” 9. This Court by order dated 24.01.2003 while issuing notices to show cause to the respondents pleased to grant an interim order in favour of the petitioners directing the respondents not to effect any recovery from the petitioners in pursuance to the order dated 112.2002 and further not to proceed with the auction of the property of the petitioners for the purpose of recovery of the demand made. The resultant position is that neither the investigation has been completed in the criminal case lodged at the instance of the petitioners, nor the respondent Excise Department made any recovery of the demand said to be due against the petitioners. If the respondents would have handed over the original sureties to the Investigating Officer then atleast investigation in the criminal case could have been completed long back. 10. It is also the position admitted between the parties that an amount of about 39,00,000/-has already been recovered by the Excise Department and the huge property of the petitioners is under their attachment. In view of it, the demand made by the respondents appears to be secured. 11. Looking to all the facts and circumstances of the case and with view to meet the ends of justice, I consider it appropriate to get the sureties examined by the Forensic Science Laboratory. 12. It is stated by Counsel for the respondents that the Judicial Magistrate No. 3 , Jodhpur, by order dated 211.2002 permitted the Investigating Officer to procure original documents from the District Excise Officer, Jodhpur after execution of recovery proceedings, therefore, in the event, any direction is given by this Court to the District Excise Officer, Jodhpur to hand over original documents to the Investigating Officer without effecting recovery, shall amount to reversing the order passed by the Judicial Magistrate without giving challenge to it by the petitioners in present writ petition or by any other proceedings. I do not find any force in the contention made by Counsel for the respondents. 13. I do not find any force in the contention made by Counsel for the respondents. 13. Under Article 226 of the Constitution of India High Court possess wide powers which are always required to be exercised to meet the ends of justice. 14. From the facts averred in the instant petition, it is apparent that the petitioners from very inception denied that they ever gave sureties as alleged by the Excise Department. The Excise Department also considered the representation submitted by the petitioners and stayed recovery proceedings till disposal of the criminal case lodged at the instance of the petitioners. The Excise Department has already recovered a sum of about 39,00,000/-and huge property of the petitioners is under attachment with the Department. In the event the respondents be permitted to effect the recovery from the petitioners by making sale of their property then the same shall cause an irreparable injury to them if ultimately it is found after investigation that no guarantee/surety was given by the petitioners. 15. In view of it, I am is of considered opinion that before effecting recovery from the petitioners by making auction of attached property it shall be appropriate to get the investigation completed. 16. Accordingly, this petition for writ is allowed. The District Excise Officer, Jodhpur is directed to hand over original copies of the documents on basis of which Excise Department is proceeding to effect recovery from the petitioners, to the Investigating Officer at Police Station, Udaimandir, Jodhpur in connection with FIR No. 507/2002 within a period of 15 days from today. The Investigating Officer is directed to send the original documents concerned for getting the opinion of forensic expert at earliest. It is desirable that the Investigating Officer shall complete the entire investigation within a period of three months from the date he receives requisite documents from the District Excise Officer, Jodhpur. The Commissioner, Department of Excise, Udaipur shall be at liberty to take an appropriate decision with regard to effect recovery from the petitioner after completion of investigation by Investigating Agency. Till then, no recovery from the petitioner shall be made in pursuant to the impugned demand notices. No auction of the petitioners property shall also be made till then.