Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 1228 (RAJ)

RAJENDRA SINGH CHOUHAN v. STATE OF RAJASTHAN

2015-07-03

BANWARI LAL SHARMA, SUNIL AMBWANI

body2015
JUDGMENT : 1. We have heard learned counsel appearing for the appellant. 2. This D.B. Civil Special Appeal arises out of a judgment of learned Single Judge, dated 08.10.2014, by which he has dismissed the writ petition on the ground of alternative remedy of approaching the Rajasthan Tax Board, against the order of confiscation, and penalty in lieu of confiscation, under Section 69 of the Rajasthan Excise Act, 1950. 3. A truck was found abandoned in Rajasthan laden with illicit liquor on 30.08.2013, which was not claimed by anyone. The appellant, as the owner of the truck, made an application before the Excise Commissioner, Rajasthan, Udaipur, on 09.04.2014 for return of Truck, alleging that on 27.04.2013, the truck was stolen on its return from Lakhimpur in the State of U.P., where the appellant had unloaded the goods. The truck was stolen along with the documents on 27.04.2013, of which a First Information Report was lodged at Police Station Allahganj, Shahjahanpur, Uttar Pradesh, being Case No.44/2013, under Section 292 IPC, and that since after 27.04.2013, the vehicle was not in possession of the applicant. It was recovered with illicit liquor at Nasirabad Sadar, Ajmer, of which an FIR was lodged at Nasirabad, giving rise to proceedings under the State Excise Act. 4. It is submitted that these facts were placed before the Excise Commissioner, who had rejected the explanation on the ground that the owner of the vehicle did not observe sufficient care to avoid the use of vehicle for illegal activities. It is submitted that the order of confiscation, and penalty in lieu of confiscation, has been passed mechanically, without applying mind to the explanation of the appellant. There was absolutely no material to record the finding that the appellant was involved in the illicit trade, and that the illicit liquor was being transported by him in his truck. The finding that the appellant did not observe sufficient care for user of his truck for illegal activities, is wholly arbitrary, inasmuch as when the truck was stolen, and an FIR was lodged, much prior to its recovery, the Excise Commissioner could not have placed the burden of sufficient care on the appellant. 5. Ordinarily, a writ petition is not maintainable unless the person exhausts the statutory alternative remedies. In the present case, however, we find complete non-application of mind to the facts, brought before the Excise Commissioner. 5. Ordinarily, a writ petition is not maintainable unless the person exhausts the statutory alternative remedies. In the present case, however, we find complete non-application of mind to the facts, brought before the Excise Commissioner. The order did not take into consideration the explanation supported by cogent and relevant material, and records findings, which are not only vague, but are totally unsupportable. It is not an order, which may be sustained, or to direct the petitioner to avail alternative remedies against the order. 6. We are satisfied that the appellant had produced sufficient material before the Excise Commissioner, Rajasthan, Udaipur, to show that the truck was not in his possession and control, as it was stolen along with the papers in the State of U.P., on return trip on 27.04.2013. The appellant's explanation was required to be considered in an objective manner before making the order of confiscation of vehicle, or fine in lieu thereof. A victim of crime could not be subjected to confiscation or penalty unless his explanation was found to be false or lacking bonafides. 7. In view of the above, the Special Appeal is allowed. The judgment of learned Single Judge, dated 08.10.2014, as well as the order passed by the Excise Commissioner, dated 09.07.2014, are set aside. The Excise Commissioner, Rajasthan, Udaipur, is directed to decide the matter, afresh, in accordance with law, after considering the explanation of the appellant and recording sufficient reasons. A fresh order, after hearing the appellant, will be passed within a month. 8. The appellant will appear before the Excise Commissioner, Rajasthan, Udaipur, along with the certified copy of this judgment, on 14.07.2015.