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Uttarakhand High Court · body

2015 DIGILAW 42 (UTT)

RAMESH CHANDRA GURURANI v. STATE OF UTTARAKHAND

2015-01-19

ALOK SINGH

body2015
JUDGMENT Hon’ble Alok Singh, J (Oral) Present petition is filed assailing the order dated 29.07.2003 passed by Collector, Almora confiscating Maruti Van bearing registration no. DNB 2501 by exercising jurisdiction under Section 72 of the U.P. Excise Act, 1910 and judgment & order dated 26.04.2005 passed by Appellate Authority dismissing the appeal. 2. Brief facts of the present case, inter alia, are that Maruti Van bearing registration no. DNB 2501 was intercepted by police party of police station Kotwali, Almora headed by Sub Inspector Ramiram at Baldoti Trijunction; Maruti Van was being driven by Sibbal Singh; Nandan Singh & Vijay Singh were also found travelling in the same Maruti Van; during inspection and checking, 40 quarter bottles of IMFL were found in one bag and 40 quarter bottles of IMFL were found in another bag, total 80 quarter bottles of IMFL were found and recovered from the Maruti Van; Maruti Van, wherefrom 80 quarter bottles of IMFL were recovered along with contraband and all the three persons were brought to the police station and thereafter, case crime no. 1851 of 2002 under Section 60 of the Excise Act was registered against Sibbal Singh, driver of the vehicle as well as against Nandan Singh & Vijay Singh, who were found travelling in the same Maruti Van; Sub Inspector Ramiram forwarded his report to the Collector to initiate proceedings under Section 72 of the Excise Act for confiscation of the Maruti Van, in question; having satisfied, prima facie, on the report submitted by Sub Inspector Ramiram, Collector was pleased to issue notices to the petitioner, being owner of the vehicle and to three others to show cause as to why vehicle may not be confiscated under Section 72 (5) (a) of the Act; before the Collector, Sibbal Singh, driver of the vehicle, has filed his reply stating therein he was merely driver of the vehicle and he was not having any knowledge as to what was being carried by the two passengers namely Nandan Singh and Vijay Singh, who were found sitting in Maruti Van; Nandan Singh and Vijay Singh have submitted their reply stating therein they were not carrying any IMFL and the items found in the Maruti Van did not belong to them; petitioner, owner of the vehicle, also filed his reply to the show cause notice stating therein that Maruti Van bearing registration no. DNB 2501 was a private vehicle and Sibbal Singh was engaged by him as driver to drive the Maruti Van, in question. He further submitted that he never authorized Sibbal Singh to transport any liquor therein nor liquor found in the vehicle was being transported with his consent or within his knowledge. 3. Undisputedly, Nandan Singh and Vijay Singh have confessed their guilt before the learned Magistrate hearing the prosecution case under Section 60 of the Excise Act, it means that transportation of unauthorized 80 quarter bottles of IMFL stands proved. 4. Section 72 of the U.P. Excise Act, 1910 reads as under: “Section 72 - What things are liable to confiscation (1) Whenever an offence punishable under this Act has been committed- (a) every intoxicant in respect of which such offence has been committed; (b) every still, utensil, implement or apparatus and all materials by means of which such offence has been committed; (c) every intoxicant lawfully imported, transported, manufactured, held in possession or sold along with or in addition to any intoxicant liable to confiscation under clause (a); (d) every receptacle, package and covering in which any intoxicant as aforesaid or any materials, still, utensil, implement or apparatus is or are found, together with the other contents (if any) of such receptacle or package; and (e) every animal, cart, vessel or other conveyance used in carrying such receptacle or package; shall be liable to confiscation. (2) Where anything or animal is seized under any provision of this Act and the Collector is satisfied for reasons to be recorded that an offence has been committed due to which such thing or animal has become liable to confiscation under sub-section (1), he may order confiscation of such thing or animal whether or not a prosecution for such offence has been instituted: Provided that in the case of anything (except an intoxicant) or animal referred to in sub-section (1), the owner thereof shall be given an option to pay in lieu of its confiscation such fine as the Collector thinks adequate not exceeding its market value on the date of its seizure. (3) Where the Collector on receiving report of seizure or on inspection of the seized things, including any animal, cart, vessel or other conveyance, is of the opinion that any such things or animal is subject to speedy wear and tear or natural decay or it is otherwise expedient in the public interest so to do, he may order such things (except an intoxicant) or animal to be sold at the market price by auction or otherwise. (4) Where any such things or animal is sold as aforesaid, and- (a) no order of confiscation is ultimately passed or maintained by the Collector under sub-section (2) or on review under sub-section (6); or (b) an order passed on appeal under sub-section (7) so requires; or (c) in the case of a prosecution being instituted for the offence in respect of which the thing or the animal is seized, the order of the court so requires; the sale proceeds after deducting the expenses of the sale shall be paid to the person found entitled thereto. (5) (a) No order of confiscation under this section shall be made unless the owner thereof or the person from whom it is seized is given— (i) a notice in writing informing him of the grounds on which such confiscation is proposed; (ii) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice; and (iii) a reasonable opportunity of being heard in the matter. (b) Without prejudice to the provisions of clause (a), no order confiscating any animal, cart, vessel, or other conveyance shall be made if the owner thereof proves to satisfaction of the Collector that it was used in carrying the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the person in-charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use. (6) Where on an application in that behalf being made to Collector within one month from any order of confiscation made under sub-section (2), or as the case may be, after issuing notice on his own motion within one month from the order under the sub-section refusing confiscation to the owner of the thing or animal seized or to the person from whose possession it was seized to show cause why the order should not be reviewed, and after giving him a reasonable opportunity of being heard, the Collector is satisfied that the order suffers from the mistake apparent on the face of the record including any mistake of law, he may pass such order on review as he thinks fit. (7) Any person aggrieved by an order of the confiscation under subsection (2) or sub-section (6) may, within one month from the date of the communication to him of such order, appeal to such judicial authority as the State Government may appoint in this behalf and the judicial authority shall, after giving opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against. (8) Where a prosecution is instituted for the offence in relation to which such confiscation was ordered the thing or animal shall subject to the provisions of sub-section (4) be disposed of in accordance the order of the Court. (9) No order of confiscation made by the Collector under this section shall prevent the infliction of any punishment to which the person affected thereby may be liable under this Act.” 5. As per sub-Section (1) of the Section 72 of the Act, every intoxicant in respect of which such offence has been committed; every still, utensil, implement or apparatus and all materials by means of which such offence has been committed; every intoxicant lawfully imported, transported, manufactured, held in possession or sold along with or in addition to any intoxicant liable to confiscation under clause (a); every receptacle, package and covering in which any intoxicant as aforesaid or any materials, still, utensil, implement or apparatus is or are found, together with the other contents (if any) of such receptacle or package; and every animal, cart, vessel or other conveyance used in carrying such receptacle or package shall be liable to confiscation. 6. 6. As per sub-Section 5 (a) of Section 72, no order of confiscation shall be made, unless a notice, in writing, informing him the grounds on which such confiscation is proposed; an opportunity of making a representation in writing within such reasonable time, as may be specified in the notice; and a reasonable opportunity of being heard in the matter is given to the owner or to the person from whom seizure is made. 7. Sub-Section 5 (b) of Section 72 demonstrates that no confiscation shall be made, if owner of animal, cart, vessel or conveyance is able to satisfy the Collector that the same was being used in carrying the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the person in-charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use. 8. Sub Section 8 of Section 72 of the Act provides where a prosecution is instituted for the offence in relation to which such confiscation was ordered, the thing or animal shall, subject to the provisions of sub-section (4), be disposed of in accordance the order of the Court. 9. In the present case, first of all, two accused have confessed their guilt, therefore, transportation of contraband by Maruti Van, in question, stands proved. Moreover, while convicting and sentencing the two accused persons, learned Magistrate has not passed any order under Section 72 (8) of the Act directing for release/disposal of the case property i.e. Maruti Van. 10. As per the version of the petitioner, owner of the vehicle, vehicle was for his personal use and he has never authorized his driver Sibbal Singh to carry any passenger therein. Admittedly, Sibbal Singh was his agent and was also in-charge of the vehicle, at the time of inspection and checking of the vehicle and in the presence of agent/in-charge of the vehicle i.e. Sibbal Singh – driver, contrabands were recovered. Admittedly, Sibbal Singh was his agent and was also in-charge of the vehicle, at the time of inspection and checking of the vehicle and in the presence of agent/in-charge of the vehicle i.e. Sibbal Singh – driver, contrabands were recovered. If Sibbal Singh has unauthorizedly and illegally permitted Nandan Singh and Vijay Singh passengers to travel in the Maruti Van, it would demonstrate and shall go to prove that owner’s agent/in-charge of the vehicle, has not taken any reasonable precautions against such use, therefore, it cannot be said that contrabands were being transported without the knowledge or connivance of the petitioner, his agent or in-charge of the vehicle i.e. Sibbal Singh. 11. In view of the fact as observed hereinbefore that two accused have confessed their guilt and owner/petitioner could not satisfy the Collector, as required under Section 72 (5) (b) of Act, therefore, no interference is called for and order of the Collector seems to be perfectly valid and within jurisdiction. 12. Mr. Siddharath Sah, Advocate for the petitioner, has vehemently argued that as per Section 72 (7) of the Act, order passed by the Collector can be challenged before the Appellate Authority, appointed by the State Government. He further contends that as per Notification no. 4986-E/XIII-517-78 dated 04.06.1978, District Judge of each district, is Appellate Authority in respect of order of confiscation passed by the Collector under sub-Section (2) or sub-Section (6) of Section 72 of the Act. 13. According to Mr. Siddharath Sah, Advocate for the petitioner, appeal should have been filed before the District Judge and it should have been registered as Civil Appeal. However, in the present case, appeal was entertained by Sessions Judge, Almora and the same was registered as Criminal Appeal, therefore, order passed by the Sessions Judge is without jurisdiction. 14. Undisputedly, in the State of Uttar Pradesh and Uttarakhand, District Judge also acts as Sessions Judge. Of course, appeal so filed should have been entertained by the officer designated (Appellate Court) as District Judge only, but the fact remains, the same very officer is discharging the function of Sessions Judge. If typographical or clerical mistake is committed by the very same officer by describing himself as Sessions Judge, it will not make any difference as far as the merit of the case is concerned. If typographical or clerical mistake is committed by the very same officer by describing himself as Sessions Judge, it will not make any difference as far as the merit of the case is concerned. Therefore, remand of the appeal to the very same officer to decide the appeal afresh as District Judge seems to be totally futile exercise, therefore, I am not inclined to buy the arguments advanced by Mr. Siddharath Sah, Advocate for the petitioner. 15. For the reasons recorded hereinbefore, no interference is called for in the present case. Writ petition fails and is hereby dismissed. 16. Before parting with the judgment, I would like to mention that some judicial officers mention themselves as Civil Judge while deciding the criminal cases or bail applications. Some officers mention themselves as Judicial Magistrates while deciding the civil cases. Like wise, same mistake is committed by superior Judicial Officers too. Therefore, all the judicial officers are directed to be careful in future and to mention their name and designation correctly in which capacity orders/judgments are passed. All the statutory appeals filed under Section 72 (7) of the Excise Act shall be registered as misc. civil appeals. 17. Let copy of this judgment be circulated to all the judicial officers working in the State. 18. No order as to costs.