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2012 DIGILAW 867 (RAJ)

State of Rajasthan v. Sharda Kanwar

2012-04-09

NISHA GUPTA

body2012
Hon'ble GUPTA, J.—This criminal misc. petition under Section 482, Cr.P.C. has been filed against the order dated 12.2.2004 passed by the learned Addl. Sessions Judge, Bhror in Criminal Revision No. 7/2004 whereby the vehicle No. RJ-14-26-2205 has been released in favour of the non-applicant on furnishing supardgi of Rs. 5,00,000/-. 2. The short facts of the case are that one FIR No. 21/2004 dated 27.1.2004 was registered by Excise Inspector, Behror and the impugned vehicle was seized under that FIR. The respondent submitted application for release of the vehicle bearing No. RJ 14-26-2205. The learned magistrate has rejected the application on the ground that after amendment in the Rajasthan Excise Act by incorporating Section 69(6) of the Act, the jurisdiction for releasing the vehicle now does not vest with the trial Court. The respondent preferred revision petition and the revisional court has released the vehicle to respondent. Hence this petition. 3. The contention of the present petitioner is that the learned revisional court has not considered the provisions and passed the order of release which is contrary to law and illegal. According to Section 69 of the Act, the jurisdiction to make order with regard to the possession, delivery, disposal of the vehicles are with the Excise Commissioner. The amendment starts with the non-obstante clause, meaning thereby that all other acts and laws have been excluded by which the vehicle could have been released by the courts and the order of the revisional court is unsustainable. "Section 69(6) of the Rajasthan Excise Act reads as under: "69(6). Whenever any means of conveyance as referred to in clause (e) of sub-section (1) is seized in connection with commission of an offence under this 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 and court, tribunal or other authority shall not have, jurisdiction to make order with regard to the possession, delivery, disposal, release of such means of conveyance." 4. The learned counsel for the petitioner has placed reliance on the objects and reasons of the Rajasthan Excise (Amendment) Act, 2000 which reads as under:- "The incidence of unauthorised transportation of excisable articles had increased in recent past and it was noticed that owners of such vehicles were indulging in these activities with impunity. The learned counsel for the petitioner has placed reliance on the objects and reasons of the Rajasthan Excise (Amendment) Act, 2000 which reads as under:- "The incidence of unauthorised transportation of excisable articles had increased in recent past and it was noticed that owners of such vehicles were indulging in these activities with impunity. It was also noticed that the vehicles indulging in such transportation even after seizure for commission of the offence were got released from courts and were again used for unauthorised transportation of excisable articles. To check this menace, it was considered necessary to provide that if any means of conveyance is used in commission of offence under the Rajasthan Excise Act, 1950, then the same shall be liable to be confiscated by order of the Excise Commissioner or the Officer not below the rank of District Excise Officer as may be authorised by the State Govt. in this behalf and the owner of such a means of con-veyance shall be deemed to be guilty of offence for the commission of which, the said means of conveyance was used. For achieving these purposes, Sec. 69 of the Rajasthan Excise Act was proposed to be suitable amended and a new Sec. 54-A was proposed to be inserted." 5. The objects and reasons of this Act goes to show that to check the menace it was considered necessary that if any means of conveyance is used under the Rajasthan Excise Act, then the same shall be liable to be confiscated by the order of the Excise Commissioner and the Act was proposed to be suitably amended. 6. The objects and reasons of this Act goes to show that to check the menace it was considered necessary that if any means of conveyance is used under the Rajasthan Excise Act, then the same shall be liable to be confiscated by the order of the Excise Commissioner and the Act was proposed to be suitably amended. 6. The learned counsel for the petitioner has submitted that regarding other special Acts, the controversy has been dealt with by the Apex Court and has relied on the judgment delivered in the case of Superintendent of Customs and Central Excise, Nagercoil vs. R. Sunder (1993 Cr.L.J. 956) where legal position embodied in Customs Act has been discussed and it was held as under:- "In all cases were all alleged contraband articles were seized by the Departments under the provisions of the Customs Act, 1962, the disposal of the properties so seized is permissible only under the machinery provided therein and not otherwise and the Criminal Court therefore has no jurisdiction or requisite power either to order for interim custody of such seized articles pending inquiry or trial or for the return of the same after the conclusion of the trial to the person, from whom they were seized, and even in the extreme case of adjudication, penalty and confiscation proceedings, not having been completed by the time and prosecution launched coming to a successful termination, the Criminal Court is left with no other alternative except to pass and order for disposal of such seized goods only in accordance with the provisions of the Customs Act, 1962, i.e., the machinery provided herein would take the necessary course to pass an order as respects the disposal of the seized goods in accordance with the provisions contained therein." 7. The learned counsel for the petitioner has further placed reliance upon the judgment delivered in the case of State of Karnataka vs. K. Krishnan (2000) 7 SCC 80 ) wherein it has been held as under:- "the provisions of the Act should be strictly complied with and generally, the seized forest produce and the vehicle, boat, tools etc., used in commission forest offence should not be released and that even if court is inclined to release the same, the authorised officer must specify reasons therefor and must insist on furnishing of bank guarantee as the minimum condition in the said case, the forest produce was transported in violation of provisions of the Act. The vehicle used in connection with the transportation, along with the forest produce, was seized. The vehicle was released by the authori-sed officer, subject to contain conditions, including furnishing of bank guarantee. A petition under Sec. 482, Cr.P.C., for quashing the order of the authorised officer and the unconditional released of the vehicle, was made. The High Court modified the condition regarding bank guarantee and instead, directed to furnish two solvent sureties to the extent of Rs. 1,50,000/- each, for the purpose of getting interim custody of the vehicle. The Supreme Court held that the High Court had adop-ted a casual approach and its order was contrary to law and the casual approach in respect of offences relating to forest, was deprecated." 8. The learned counsel for the petitioner has further placed reliance on the judgment of the M/s. Sawai Madhopur Oil & Pulse Industries & 74 Ors. vs. State of Rajasthan & others (2001 (3) WLC (Raj.) 419 = RLW 2001(4) Raj. 56) wherein the controversy has been dealt with thoroughly and it has been held that Section 69(6) rightly excludes the jurisdiction of the criminal courts in matters falling within the ambit of this Act and held that the Rajasthan Excise Act, 1950 is an independent self-codified statute providing alternate remedy. Merely the forum for release of vehicle has been changed, the petitioners are not at all affected by the change of forum. 9. To achieve the objects and reasons, the Act was suitably amended and the power of confiscation vests in the Excise Authority. It is true that the prosecution for the offence is to be tried by the regular court. 9. To achieve the objects and reasons, the Act was suitably amended and the power of confiscation vests in the Excise Authority. It is true that the prosecution for the offence is to be tried by the regular court. The jurisdiction of the court has been excluded with regard to the possession, delivery, disposal, release of such means of conveyance, there is no doubt that such power vests exclusively with the domain of Excise Commissioner or any person duly authorised by the State Government in this behalf. 10. Hence looking at the above legal position, the order of the revisional court dt. 12.2.2004 is without jurisdiction, liable to be quashed and is hereby quashed and it is directed that if the vehicle is released, it should be surren-dered before the Excise Authority who may proceed in accordance with law. 11. With the above observations, this misc. petition is allowed.