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2007 DIGILAW 264 (JK)

Excise Commissioner v. Ab. Qayoom

2007-11-28

VIRENDER SINGH

body2007
1. All the aforesaid four petitions are clubbed together for the purposes of disposal by a common order as the point for consideration in all the four cases is virtually the same. 2. Cr. Rev. No. 61/2004 has been filed against the orders dated 04-06-2004 and 16-07-2004 respectively vide which the Truck bearing No. JK-13 0623 seized by Excise Department, registration certificate and route permit relating to the said vehicle have been ordered to be released in favour of the respondent(s). Revision petition No.32/2006 and Petition under section 561-A No.49-S/2006 have been filed against the orders of learned Sessions Judge Kathua dated 13-04-2006 and 10-08-2006 respectively vide which two vehicles (Trucks) bearing registration No.PB-12 G 7866 and PB 10-Y8055 have been ordered to be released on `Superdari in favour of the registered owners/respondents. 3. In Cr. Rev. No.85/2006, the order dated 25-08-2006 passed by the learned Sessions Judge, Kathua has been impugned showing the grievance that respondent/accused Jarnail Masih should have also been charged under section 48-A of the Jammu and Kashmir Excise Act, 1958 (hereinafter for short referred to as the "Excise Act) along with the charges under section 8(c) and 15(c) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the `N.D.P.S. Act. In fact he has been charged under N.D.P.S. Act only. 4. The case of the prosecution in brief is that from the aforesaid trucks, contraband was allegedly seized when they were intercepted by the excise official(s) on different dates. Since the quantum of recovery of the contraband or as a matter of fact violation of any of the provisions of N.D.P.S. Act is not the issue for debate before me, therefore, I do not feel the necessity of entering into the details with regard to the facts of individual case. 5. Heard learned counsel for both the sides in all and perused the records. Records relating to the case of Jarnail Masihs (Cr.Rev.85/2006) have also been requisitioned for the perusal of this court and the main order is being recorded in the, aforesaid revision. 6. Admittedly the seized articles have already been released to the respondents. Mr. Bhat submits that the excise official(s) had intercepted the trucks and found the narcotic items (contraband) in those vehicles. 6. Admittedly the seized articles have already been released to the respondents. Mr. Bhat submits that the excise official(s) had intercepted the trucks and found the narcotic items (contraband) in those vehicles. During the investigation it was established that the accused were not only guilty of commission of offence punishable under section 15 of N.D.P.S. Act, they had also committed offence under section 48-A of the Excise Act. According to Mr. Bhat in Jarnail Masihs case the challan was also produced before the learned Special Judge (Sessions Judge), Kathua for the commission of offence under the Excise Act along with the N.D.P.S. Act, but the learned Sessions Judge has not said even a word in the impugned order dated 25.08.2006 with regard to the Excise Act and order the framing of the charge against him under the N.D.P.S. Act only. This reflects non application of mind by the court concerned and the case calls for reappraisal afresh. 7. Mr. Bhat, however, very fairly states that while deciding the application for release of the truck No. PB-12-G-7866, the court, however, vide order (annexure-G) has considered all the aspects, including the provisions of Excise Act and ultimately ordered the release of the said vehicle on `Superdari to its owner. The order is also the subject-matter of one of the present revision petitions (Rev. petition No.32/2006). 8. Mr. Bhat then submits that since the recoveries effected in all the cases bring the individual case within the mischief of section 48 of the Excise Act and as such the case property which includes vehicles also taken in custody during investigation are liable for confiscation under section 58 and 59 of the Act for which the confiscation proceedings were already initiated and the notice issued to the respondents/owners for tendering their explanation. According to Mr. Bhat, the Excise Act provides a complete procedure for investigation of offences and the disposal of the property seized under the Act and, therefore, section 523 of the Code of Criminal Procedure, 1989 is not applicable in this case. According to the learned counsel the court could pass the order of releasing the vehicles or the goods seized if they are in police custody, but no order for the release could be passed by the concerned Judge in any special offence like the present one. Therefore, the impugned orders have virtually nullified the confiscation proceedings initiated under Excise Act. According to the learned counsel the court could pass the order of releasing the vehicles or the goods seized if they are in police custody, but no order for the release could be passed by the concerned Judge in any special offence like the present one. Therefore, the impugned orders have virtually nullified the confiscation proceedings initiated under Excise Act. In short Mr. Bhat, submits that jurisdiction of criminal court stands ousted once the confiscation proceedings are initiated under Excise Act. 9. Mr. Bhat then submits that if one goes by section 81 of N.D.P.S. Act, it does not bar initiation of proceedings simultaneously against any accused under the provisions of any State Act, if the restrictions imposed under the State Act are more stringent than provided under N.D.P.S. Act. According to him under the N.D.P.S. Act, the confiscation can be made only after the trial is over against the accused and he is convicted or acquitted or discharged, whereas under the provisions of the Excise Act the confiscation proceedings can be initiated at any time after the seizure of the vehicles or goods if such vehicles or goods are found involved in the commission of excise offence. Seen the Act from that angle, it can be said that the restriction imposed under the Excise Act are more stringent and, therefore, the court concerned should have not resorted to the provisions of the N.D.P.S. Act while deciding the applications moved by the respondents. 10. In support of his submissions, Mr. Bhat relied upon State of Karnataka v. K. Krishnan (AIR 2000 SC 2729), State of West Bengal v. Sujit Kumar Rana (AIR 2004 SC 1851) and Mohammad Waseem v. The State (1982 CRI. L.J. 1640). 11. On the aforesaid submissions, Mr. Bhat prays for the acceptance of all the aforesaid four petitions with a prayer that the vehicles and the documents already released may be ordered to be handed over to the excise authorities for initiating proceedings of confiscation in accordance with the provisions of the Excise Act, with a further prayer that respondent, Jarnail Masih (in Cr. Rev. No.85/2006) be also charged under section 48-A of the Act along with the charges already framed against him under N.D.P.S. Act. 12. Refuting the submissions of Mr. Rev. No.85/2006) be also charged under section 48-A of the Act along with the charges already framed against him under N.D.P.S. Act. 12. Refuting the submissions of Mr. Bhat, the learned counsel representing the respondents contend that the power of confiscation of the seized trucks or the contraband allegedly recovered under N.D.P.S. Act, rests exclusively with the special court under the Central Act, and, therefore, invoking of provisions of the Excise Act by excise authorities for the same purpose is rather ousted. The other argument advanced is that if the confiscation of vehicle is made at this stage under Excise Act, the same vehicle can also be confiscated subsequently under N.D.P.S. Act under section 60 and this on the face of it could tantamount to double jeopardy which is not only unfair, but illegal also. Therefore, for all intents and purposes, in such type of situation, the provisions of Excise Act would not be attracted and the case would be dealt with under the N.D.P.S. Act only. Therefore, the learned Sessions Judge, Kathua, was justified in dealing with the case of releasing of the vehicles or the articles seized in this case in accordance with the provisions of N.D.P.S. Act and not under the Excise Act. 13. Countering the arguments advanced by Mr. Bhat in Cr. Rev. No.85/2006, Mr. Hali, learned Sr. counsel submits that no doubt, it appears that an irregularity has been committed by the learned trial court in not commenting upon the provisions of the Excise Act at all in its impugned order dated 25-08-2006 vide which the respondent(s) has been charged under N.D.P.S. Act only, but the same would not cause any prejudice to the petitioners for the single reason that the provisions of the Excise Act are not attracted in this case. Therefore, this is an irregularity which can be cured here also and on this count, the present case does not call for setting aside the impugned order or remitting the case back to the court concerned for reconsidering the matter afresh. 14. After hearing the rival contentions of either side and going through the records, in my view, the controversy can be narrowed down to one main debatable point, as to whether in the present set of facts, the N.D.P.S. Act (Central Act) would prevail or the State Act (Excise Act). 14. After hearing the rival contentions of either side and going through the records, in my view, the controversy can be narrowed down to one main debatable point, as to whether in the present set of facts, the N.D.P.S. Act (Central Act) would prevail or the State Act (Excise Act). The other aspect for consideration would be, as to whether the provisions of State Act can be left to operate parallely with N.D.P.S. Act. In my considered view, the plain reading of section 81 of N.D.P.S. Act itself gives the complete answer to it. It reveals that only those provisions of the provincial Act or the Act of the State legislature have been saved which provide or imposes any restriction or provides for a punishment greater in degree than a corresponding punishment provided by N.D.P.S. Act. The clear implication is that where the punishment provided under the Central Act (N.D.P.S. Act) is heavier than provided by the State Act, then Central Act would prevail and to that extent it cannot be said that the provisions of the State Act have been left to operate parrelley. 15. It goes without saying that under N.D.P.S. Act, the punishment provided is certainly of heavier degree than that of Excise Act. The substantive sentence under the N.D.P.S. Act can extend to 20 years and with a fine of Rs. 2 lacs. Minimum sentence is also provided under this Act. On the other hand the maximum penalty which can be imposed under section 48 of Excise Act is three years and fine which may extend to three thousand rupees. 16. I am not impressed by the arguments advanced by Mr. Bhat that the Excise Act imposes more stringent restrictions than that of N.D.P.S. Act, vis-a-vis., confiscation of the vehicle or goods. Section 59 of the Excise Act and section 63 of N.D.P.S. Act, deal with the procedure in making confiscation. Bare reading of section 59 of the Excise Act shows that whenever confiscation is authorized, the Deputy Commissioner or the Magistrate ordering it may give the owner of the thing liable to be confiscated an option to pay in lieu of the confiscation such fine as such officer thinks fit. There is no such provision in N.D.P.S. Act. In other words, there is no such like relaxation. 17. There is no such provision in N.D.P.S. Act. In other words, there is no such like relaxation. 17. Section 63 of N.D.P.S. Act also reads that any article or thing seized under the Act is liable to be confiscated under section 60 or section 61 or section 62 irrespective of the fact that as to whether the accused is convicted, acquitted or discharged during the trial. Section 59 of Excise Act is para-materia to section 63 of N.D.P.S. Act dealing with the procedure in making confiscation. But the power to order confiscation vests with the trial court only. That is again not the situation under section 59 of the Excise Act. Another fact which is worth consideration is that cultivation, possession, transportation, trafficking and other related activities with regard to the narcotic drugs and psychotropic substances are also not covered under the Excise Act. Therefore, the penal provisions of Excise Act are comparatively too soft when compared with the penal provisions of the N.D.P.S. Act. Therefore, there remains no doubt that the procedure of confiscation as provided under the Excise Act is more stringent than that of N.D.P.S. Act. 18. In view of what is discussed hereinabove, it can be safely said that in the face of the provisions of the N.D.P.S. Act squarely applying to the act of commission attributed to accused in holding unlawful possession of quantity of contraband, prosecution under section 48 of the Excise Act would be ridiculous and meaningless. On the same rationale, the impugned order dated 25-08-2006 which is the subject-matter of Cr. Rev. 85/2006 can be appreciated. In my view, even if the trial court has not commented upon the Excise Act at all while ordering the framing of charge against respondent-Jarnail Masih for the offences punishable under N.D.P.S. Act only, would at the most turn out to be sheer irregularity causing no prejudice to the accused at all as the provisions of Excise Act are not attracted in this case. I, therefore, find force in the submissions advanced by Mr. Hali on this aspect. 19. To be fair to Mr. Bhat, I may observe here that the aforesaid three judgments cited by him are not applicable to the facts of the present case(s) and, therefore, he cannot derive any benefit in his favour from those judgments. I, therefore, find force in the submissions advanced by Mr. Hali on this aspect. 19. To be fair to Mr. Bhat, I may observe here that the aforesaid three judgments cited by him are not applicable to the facts of the present case(s) and, therefore, he cannot derive any benefit in his favour from those judgments. In Mohammad Waseems case (supra) the vehicle was seized under the U.P. Excise Act only and in that eventuality the Honble High Court of Allahabad has held that once the confiscation proceedings were pending before the Collector, the Magistrate had no power to deal with the case under section 457 Cr.P.C. The factual position here is different. The case(s) was registered under Excise Act as well as N.D.P.S. Act. On the basis of the aforesaid discussion, it has been observed by me that the provisions of Excise Act, are not attracted. Therefore, the release of the vehicle(s) or any article has been rightly considered by the court below under N.D.P.S. Act only. 20. Similarly, the observation made in K. Krishnan and in Surjit Kumar Ranas cases (supra) are also not applicable as in both the cases the vehicles were seized under the Forest Act of two different States and their lordships have held that liberal approach in releasing the vehicle was uncalled for as the provisions for seizure and confiscation were made with an object to protect forest and maintain ecological balance. 21. The net result is that I find no infirmity in any of the impugned orders challenged herein by the Excise authorities. Resultantly, all the aforesaid four petitions along with all connected CMPs are hereby dismissed. Trial court record be sent back without any delay.