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2017 DIGILAW 207 (UTT)

JITENDER POKHARIYAL v. STATE OF UTTARAKHAND

2017-04-05

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J. (Oral) 1. By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the judgment and order dated 20.02.2017 passed by 1st Additional Sessions Judge, Rishikesh, District Dehradun and order dated 30.01.2017 passed by Additional Chief Judicial Magistrate, Rishikesh in case Crime No. 64/2017 (State Vs. Jitendra Pokhariyal). 2. During the course of routine checking, some liquor bottles were recovered from the vehicle of the applicant and consequently an F.I.R was lodged against him for the offences punishable under Section 60(1)(a) and 72(2) of the Excise Act. The applicant was arrested and his vehicle (I 10 Car) bearing registration no. UK 07AC-2248 was seized by the Police. The applicant was released on bail by the Magistrate concerned. Thereafter, he moved an application before the Magistrate for release of his vehicle, which was seized by the Police. The said application of the applicant was rejected by the Magistrate concerned, vide order dated 30.01.2017. Aggrieved against the same, applicant preferred a revision, which was dismissed by the 1st Additional Sessions Judge, Rishikesh, District Dehradun, vide order dated 20.02.2017. 3. Learned counsel for the applicant has fairly submitted that complete mechanism for confiscation, review, appeal has been provided in Section 72 of U.P. Excise Act, 1910 as below: “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 any thing 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 thing 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 any 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 of 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, 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 sub-section (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 with 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.” 4. It will also be worthwhile to quote the following comments from Excise Laws in Uttar Pradesh, Manav Law House, Second Edition, page 75: “The judgment of Allahabad High Court in Shiv Prasad v. State of U.P. and Anr. It will also be worthwhile to quote the following comments from Excise Laws in Uttar Pradesh, Manav Law House, Second Edition, page 75: “The judgment of Allahabad High Court in Shiv Prasad v. State of U.P. and Anr. 1991 (28) ALR 487 has held that the District Judge is the Appellate Judicial Authority and the appeal should have been disposed of by the District Judge himself. Rajendra Kumar v. State of Uttaranchal and Anr., 2004 (50) ACC 53. Section 72 of the U.P. Excise Act, 1910 provides for confiscation proceedings. The confiscation order can be passed by the Collector. Sub-section (7) of Section 72 provides that against the order of confiscation, appeal lies to such judicial authority as may be appointed in that behalf by the State Government. The State Government has appointed the “District Judge” to hear such appeals. Sahab Singh v. State of U.P., 2003 (46) ACC 157. Onus lies on the owner.-Under Section 72(5)(b) of the Act, the owner of vehicle can only prevent the confiscation of the vehicle if he can prove to the satisfaction of the Collector that it was used in carrying contraband goods without his knowledge or his agent’s knowledge of connivance. Furthermore, the provision requires that the onus lies on the owner or his agent to take all reasonable and necessary precautions against such case. Irshad Ahmed v. State of U.P., 2006 (2) ALJ 132. 5. After arguing at some length, learned counsel for the applicant confined his prayer only to the extent that liberty may be granted to the applicant to approach appropriate authority for redressal of his grievance, i.e. for release of the seized vehicle. 6. Learned counsel for the applicant made a prayer that the appropriate authority be directed to decide such an application of the applicant at an earliest possible, in accordance with law, but untrammeled by any of the observations made by the Additional Chief Judicial Magistrate and 1st Additional Sessions Judge. 7. Considering the grounds taken up in the application under Section 482 Cr.P.C., coupled with the provisions of the U.P. Excise Act as well as taking note of the above decision, this Court is of the opinion that the innocuous prayer made by learned counsel for the applicant is worth accepting. 8. Application u/s 482 Cr. 7. Considering the grounds taken up in the application under Section 482 Cr.P.C., coupled with the provisions of the U.P. Excise Act as well as taking note of the above decision, this Court is of the opinion that the innocuous prayer made by learned counsel for the applicant is worth accepting. 8. Application u/s 482 Cr. P.C. is disposed of by directing the appropriate authority to pass appropriate order on the application of the applicant as expeditiously as possible, in accordance with law, without being influenced by any of the observations made either by the Additional Chief Judicial Magistrate or the Revisional Court.