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2019 DIGILAW 229 (PAT)

Baleshwar Roy v. State Of Bihar

2019-02-06

A.P.SAHI, ANJANA MISHRA

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JUDGMENT : AMRESHWAR PRATAP SAHI, J. 1. Heard Dr. Sanjay Kumar Singh, learned counsel for the appellant and Shri Anant Prasad Singh, Standing Counsel No. 15 for the State of Bihar. 2. The writ petition was filed for a simple release of the vehicle but having found the necessity of clarification on the law of the exercise of powers by this Court as well as the powers of the Executive Authority vis-a-vis the Judicial Authority, the matter was referred to a larger Bench that has returned the reference vide judgment dated 1st of November, 2018. It may be not out of place to mention that the Full Bench was called upon to answer the following questions: (A.) Whether the Collector, who has seized any animal, vehicle, vessel or other conveyance used in carrying essential commodity, has the jurisdiction to release such animal, vehicle, vessel or other conveyance, and if so, on what conditions? (B.) Whether the separation of judicial and executive functions will empower the Collector to confiscate the animal, vehicle, vessel or other conveyance without trial as the deprivation of a property can be ordered by a Court only after trial of the criminal case? (C.) Whether the provisions of Section 6-D of the Act, so as to inflict any other punishment after confiscation, would stand the legal scrutiny on the touchstone of double jeopardy? (D.) Whether the power of confiscation of the goods and the vehicle vesting with the Collector as an Executive Authority can be said to be legal in view of the principle of separation of executive and judicial power and/or that the power of confiscation of the goods and the vehicle can be exercised only by the Court.” 3. The answer to the same has been rendered in Paragraph 50 of the judgment as follows:- “50. With the aforesaid discussion, Question Nos. 2, 3 and 4 referred to above, stand answered. To tie the strings together, it is, hereby, declared that:- (A). The answer to the same has been rendered in Paragraph 50 of the judgment as follows:- “50. With the aforesaid discussion, Question Nos. 2, 3 and 4 referred to above, stand answered. To tie the strings together, it is, hereby, declared that:- (A). The provisions contained in Section 6-A to 6-E of the E.C. Act, 1955 do not run counter to the principle of separation of judicial and executive functions; (B.) Since confiscation under the Act is not in the nature of punishment or penalty, for which separate provision has been made in the Act, the conferment of the powers of confiscation in the Executive Authority, viz., the Collector, does not run counter to the constitutional policy of separation of judicial and executive functions; (C.) Section 6-D of the Act which provides for infliction of punishment to the offender, apart from awarding the order of confiscation, does not run counter to the provisions contained in Article 21 of the Constitution. Article 20 sub-Clause (2) of the Constitution of India and Section 300 of the Cr.P.C. and the provisions contained in Section 6- A to 6-E of the E.C. Act are in consonance with the provision that no person can be punished twice for the same offence.” 4. Further explaining the scope of the exercise of such powers including the powers to be exercised by this Court, the Full Bench has held as under:- “61. The upshot of the aforesaid discussion makes it very clear that no Court, even the High Court under the extraordinary powers under Section 482 of the Cr.P.C., shall have any jurisdiction to direct for release of any seized article during the pendency of the confiscation proceedings. 62. It may, however, be added that Article 226 of the Constitution of India provides power to the High Court to issue writs to any person or authority, including in appropriate cases, any Government, any order or writs (including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part-III and for any other purpose). Similarly Article 227 of the Constitution of India provides the power of superintendence over all Courts and Tribunals throughout the territories in relation to which any High Court exercises its jurisdiction. Similarly Article 227 of the Constitution of India provides the power of superintendence over all Courts and Tribunals throughout the territories in relation to which any High Court exercises its jurisdiction. The powers of the High Court under Articles 226 and 227 of the Constitution of India cannot be curtailed under any circumstance, as the power flows from the Constitution itself. No statutory bar can affect the power of the High Court under Article 226 and 227 of the Constitution of India. 63. Despite such wide and untrammeled powers, without any circumcision by external restrictions, the Courts have evolved certain self-imposed limits while exercising these powers. The High Courts, normally, would not go beyond justified inhibitions under any Statue except where there is a complete jettisoning of rule of law or under exceptional circumstances which demand timely judicial interdict. This inhibition is basically ordained, keeping in mind that there is a national weal behind any valid piece of Legislation incorporating and inhering in itself the social objective behind any Legislation. Though, no limitations or fetters have been put on the powers of the High Court under Article 226 and 227 of the Constitution of India, as the High Courts perform as sentinel on the qui-vive, but such power is not to be exercised casually and without coming to the conclusion that non-exercise of such power would lead to positive injustice. Times without number, it has been held by the High Courts that only under condition of a person establishing that substantial injustice has or is likely to ensue, such extraordinary powers can be exercised. It needs no adumbration by this date that the plenary powers of the High Court have only to be exercised in the interest of justice. 64. Thus, an order of release may be passed under Article 226/227 of the Constitution of India, even pending confiscation proceedings, but only when it is established before the Court that the procedure prescribed and the law in that regard has been completely flouted and that there is complete violation of the procedure prescribed for confiscation, viz., notice to the offender before confiscation, allowing him opportunity of giving written representation and affording hearing on the issue to him and that such injustice cannot be remedied without the exercise of the extraordinary power. 65. 65. Needless to state that under Article 226 of the Constitution of India, the Court will not go into the disputed question of facts. 66. Thus, the powers directing for release of the vehicles or goods, during the pendency of the confiscation, can only be sparingly exercised under monstrous situations and circumstances when injustice occurs because of non-fulfillment of the conditions for confiscation.” 5. In the instant case, we find that vide order dated 17th May, 2016 the District Magistrate, Madhepura had been called upon to consider the issue of release of the concerned vehicle upon which an affidavit has been filed by one Mukesh Kumar, Sub-divisional Officer, Udakishunganj, DistrictMadhepura wherein the following facts have been stated in Paragraphs 3 and 4:- “3. That in compliance of the order dated 17.05.2016 of this Hon’ble Court the District Magistrate, Mdhepura passed an order dated 16.06.2016 whereby the sub-divisional Magistrate, Udakishunganj is directed to release the concerned truck to the appellant after proper verification and taking proper security bond. 4. That in view of the aforementioned order dated 16.06.2016 the respondents sub-divisional Magistrate, Udakishunganj, passed on order contained in memo no. 2877-2 dated 14.07.2016, whereby the appellant is directed to deposit the security bond of Rs.3,05,000/- according to the valuation of the truck in question but till date no Security bond of the said amount has been deposited by the appellant. As soon as the same will be deposited by the appellant the truck will be released.” 6. In our opinion, even though the Full Bench has answered the issues but in view of the aforesaid interim direction in the present case, the order of release has already been passed by the competent authority subject to the satisfaction of the said authority of furnishing the security bond. Consequently, we see no reason any further to keep the matter pending and we, accordingly, dispose of this appeal with liberty to the appellant to approach the District Magistrate, Madhepura for passing of an appropriate order provided the appellant furnishes the security bond to the satisfaction of the District Magistrate and in that event the District Magistrate shall pass the order in relation to the release or otherwise of the vehicle within six weeks of the date of the production of certified copy of the order before him keeping in view the earlier order dated 16.06.2016 passed by the District Magistrate, Madhepura.