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2013 DIGILAW 1313 (KAR)

Nazeer Pasha @ Pasha v. Tobacco Board

2013-11-18

A.S.BOPANNA

body2013
Judgment : 1. The petitioner is before this Court seeking for issue of mandamus to direct the respondents to release the amount of Rs.2,22,049.49ps. i.e. the amount realized from the sale proceeds of the tobacco which according to the petitioner belongs to him. 2. The case herein has a checkered history. The respondents on the allegation that the petitioner was transporting tobacco without appropriate documents either to be a grower or trader had confiscated the same and accordingly a complaint dated 31.12.2000 was lodged stating that the petitioner has committed the offence punishable under Sections 10, 12, 13 and 25 of the Tobacco Board Act, 1975. In that regard, criminal prosecution was also launched in C.C.No.10937/2005. During the pendency of the said proceedings, the respondent-Board keeping in view the nature of tobacco that had been seized had made an application under Section 457 of the Criminal Procedure Code seeking interim custody of the seized tobacco. On taking interim custody of the same, keeping in view its perishable nature, the same was sold and a sum of Rs.2,22,049.49ps. had been realized. 3. In the above background, the criminal proceedings against the petitioner concluded by the judgment dated 08.09.2010 (Annexure-D), the petitioner no doubt was acquitted of the offences punishable under the provisions of the Tobacco Board Act referred to above. Prior thereto, the petitioner made a representation seeking disbursement of the value of the tobacco which had been seized from him and the amount realized by the respondents. At the first instance, since the representation had not been considered one way or the other in accordance with law, the petitioner was before this Court in W.P.No.18608/2004 disposed of on 23.07.2004. A direction had been issued to consider and dispose of the representation in accordance with law. Pursuant thereto, the order dated 30.08.2004 (Annexure-H) has been passed wherein, it is indicated that the petitioner had not established with documentary evidence that the tobacco was authorisedly possessed by him. In the said circumstance, in view of the subsequent acquittal, the petitioner has once again made the representation as at Annexure-J to the petition and he is seeking consideration of the same. 4. The respondents have filed their objection statement and have sought to justify their action. In the said circumstance, in view of the subsequent acquittal, the petitioner has once again made the representation as at Annexure-J to the petition and he is seeking consideration of the same. 4. The respondents have filed their objection statement and have sought to justify their action. Though the sequence of events relating to the manner in which the proceedings were initiated and concluded before the Court of learned Magistrate is not disputed, it is contended that notwithstanding the same, the petitioner was required to produce documents to indicate that he was either the grower of the tobacco or was authorisedly transporting the same. At least to the said extent, if it is established that he was authorisedly transporting the tobacco, the circular as relied on would be applicable so as to compound the offence and realize the penalty. It is contended that when this has not been established, the respondents would not be in a position to consider the representation in favour of the petitioner. 5. In the light of the above, it is seen that the circumstances leading to the confiscation of the tobacco which was being transported in the lorry bearing No. KA-04-A-2580 and the same being sold and the amount being realized by the respondent-Board cannot be in dispute. The question however for consideration is as to whether the request made by the petitioner for disbursement of the amount in favour of the petitioner could be accepted so as to issue a positive direction to the respondents by way of mandamus to disburse the said amount to the petitioner. In that regard, what is necessary to be noticed is that though the learned counsel for the petitioner relies on the circular dated 23.01.2004 (Annexure-F) providing for compounding of the offence, it is seen that the circular provides if the accused grower prefers to pay the compounding fee and have the penalty compounded, the further procedure has been indicated. 6. Firstly, it is to be noticed, at this juncture, the petitioner has not produced any material to show that he was the grower of the tobacco. Therefore the applicability of the circular would arise if a document is produced by the petitioner to show that he is a grower and the offence committed be compounded by accepting the penalty. 6. Firstly, it is to be noticed, at this juncture, the petitioner has not produced any material to show that he was the grower of the tobacco. Therefore the applicability of the circular would arise if a document is produced by the petitioner to show that he is a grower and the offence committed be compounded by accepting the penalty. That apart, the reliance placed by the learned counsel for the petitioner on the judgment rendered in C.C.No.10937/2005 dated 08.09.2010 also would not be of assistance in my opinion for the reason that the ultimate acquittal is for the reasons that the Court below has come to the conclusion that the very seizure of the tobacco from the possession of the accused i.e. the petitioner herein had not been satisfactorily proved. If that be the position, though for the penal offence, the respondents have failed to prove the case, in a circumstance where the petitioner is seeking for payment of the amount towards the said stock of tobacco, the burden becomes onerous on the petitioner to establish that in fact he was either grower or trader in respect of the said tobacco, since in any event at this juncture, the respondents do not dispute that it has been seized from the possession of the petitioner. If that be so, a positive mandamus to consider the representation in the manner as sought cannot be issued in the instant petition. However, liberty is reserved to the petitioner to file such documents before the respondents in support of the representation to indicate to the respondents that he is the grower of the tobacco or that he had purchased the same from any particular source and was transporting without authorization. If such documents are produced in support of the said representation, the respondents shall thereafter consider the same in the background of the documents, the circulars referred above and dispose of in accordance with law. With the said liberty and direction, the petition stands disposed of.