Allahabad High Court
Pappu Yadav @ Bhoo Prakash Yadav vs State Of U.P. And Others on 18 December, 2013
Author: Het Singh Yadav
Bench: Het Singh Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD The petitioner has preferred this writ petition invoking extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India for the following prayers:
(i) issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 3.12.2012 (annexure no. 5) passed by respondent no. 2 and order dated 18.1.2013 (annexure no. 7) passed by Additional Sessions Judge, Hathras.
(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to sell the vehicle of petitioner bearing its registration no. UP 86F-2873 by public auction.
(iii) issue writ, order or direction in the nature of mandamus commanding the respondents to release the vehicle of the petitioner forthwith in accordance with law.
(iv) issue a writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(v) award the costs of the petition.
Heard learned counsel for the petitioner and learned A.G.A. for the State and also perused the record.
The facts giving rise to the controversy involved in this writ petition in brief are that S.H.O., Naresh Kumar Yadav, of police station- Sikandrarau, district-Hathras reduced in writing a First Information report on 12.6.2012 enumerating therein that on the date, he was on patrol duty along with other police personnel. When the police party arrived at Misi Mirzapur trijunction at Etah road, the S.H.O. received a tip-off that a bootlegger would come from Etah side by a vehicle No. UP 86F-2873 on which were loaded illicit liquor and intoxicating powder. Believing upon this information, the police party lay in wait watching the arrival of the vehicle. After some time, the police party noticed arrival of a vehicle from Etah side. At about 3.30 a.m. the police intercepted the vehicle. It was a Indica car bearing registration No. U.P. 86F-2873 being driven by the petitioner who was the sole occupant. On being interrogated, he disclosed his name Pappu Yadav son of Ram Prakash resident of Nagla Udhaiya, P.S.- Hasayan, District- Mahamaya Nagar (Hathras). On the vehicle being searched, it yielded 45 pouches each containing 200 ml country-made liquor from its dickey. It is further alleged that the petitioner took out a pudia in a small polythene bag from the pocket of his trouser and handed over it to the police stating that it contained 110 gms diazapam powder. The arresting officer thereafter put an option before the petitioner whether he would like to be searched in presence of a Magistrate or a Gazetted Officer, but he gave no choice. It is alleged that since the petitioner was found in possession of illicit country-made liquor and also intoxicating powder as above, he was apprehended and case under Section 60 of United Provinces Excise Act, 1910 (U.P. Act No. IV of 1910) and also under Section 21/22 of N.D.P.S. Act was registered at P.S.- Sikandrarau, District-Mahamaya Nagar (Hathras). Since, the vehicle of the petitioner was found carrying alleged illicit liquor and NDPS substance as aforementioned, therefore, the arresting officer also seized Tata Indica Car No. UP 86F-2873 of the petitioner under the provisions of U.P. Act No. IV of 1910.
It would appear from the record that the petitioner applied for bail and after he had been enlarged on bail, he moved an application for release of his vehicle so seized by the police. The release application was allowed by the concerned Judicial Magistrate. The Collector, Hathras (respondent no. 2), however, initiated proceedings for confiscation of the car of the petitioner under Section 72 of U.P. Act No. IV of 1910 and served the petitioner with a notice as envisaged under sub-section (5)(a)of the said Section. The petitioner made representation to the respondent no. 2 under sub-section (5)(a)(ii) of the Section 72. The respondent no. 2 vide order dated 3.12.2012 rejected the representation of the petitioner and confiscated the vehicle of the petitioner and also ordered that the vehicle, so confiscated, be sold by a public auction and further to deposit the sale proceeds in government treasury.
The petitioner aggrieved by the order of confiscation preferred appeal under sub-section (7) of Section 72 before the District Judge, Hathras. The appeal was decided by the court of Additional Sessions Judge, Hathras vide order dated 18.1.2013 dismissing the appeal. The petitioner thereafter preferred this writ petition for the aforementioned reliefs.
The main brunt of the arguments of learned counsel for the petitioner is that the Collector without giving any option to the petitioner to pay in lieu of confiscation of the vehicle, such fine as the Collector thought adequate, not exceeding market value of the vehicle on the date of its seizure, passed the impugned order of confiscation. It is argued that the provision on this count was mandatory and by this reckoning, before passing an order of confiscation of the vehicle, the Collector ought to have given option to the owner of the vehicle as provided in proviso to sub-section (2) of Section 72 of U.P. Act No. IV of 1910. Having not done so, it is argued, the Collector while passing the impugned order of confiscation has committed serious procedural lapses which are mandatory in nature and, thus, the entire confiscation proceedings are vitiated and deserves to be set aside.
The next limb of the argument of learned counsel for the petitioner is that the Collector on receiving report of seizure had not inspected the seized vehicle and accordingly, he had no occasion to form an opinion that the vehicle seized is subject to speedy wear and tear or natural decay or it is otherwise expedient in the public interest so to do that the vehicle is liable to be sold at market price by auction. The Collector, thus, has passed the impugned order of confiscation and auction of the vehicle in the teeth of the statutory provisions envisaged under Section 72(3) of the said Act.
Learned counsel concluded his arguments with the submission that the lower appellate court without going into the illegalities committed as above by the Collector while passing the impugned order of confiscation of the petitioner's vehicle, dismissed the appeal preferred by the petitioner under Section 72(7) of U.P. Act No. IV of 1910 by a cryptic order, simply on the ground that the petitioner while arrested by the police along with illicit liquor, found stacked in the dickey of the vehicle in question, disclosed his name as Pappu Yadav son of Ram Prakash concealing his actual name, Bhoo Prakash.
Learned A.G.A., however, repudiated the submissions made as above and contended that the vehicle in question was found carrying illicit country-made liquor and contraband substances and, accordingly, it was seized. The petitioner, who is the owner of the said vehicle, himself was found involved in illegal activity of transportation of intoxicant substance. Section 72 of the Act empowers the Collector to confiscate anything seized under any provisions of the Act including any conveyance used in committing the offence. The Collector served show-cause notice upon the petitioner. The petitioner filed his objections. The Collector vide the impugned order decided the objections and arrived at a conclusion that the petitioner is an accused of a Case Crime No. 342 of 2012 and 343 of 2012 wherein it is alleged that the petitioner's Indica car was found involved in transportation of illicit liquor and, further, the petitioner while caught by the police, has given his false name. It is thus contended that the order of the respondent no. 2 is within the four corners of law and, therefore, the lower appellate court confirmed the order and dismissed the appeal filed by the petitioner. The petitioner has failed to point out as to how his fundamental right was infringed. The vehicle in question was confiscated by following the procedure established by the law. The petitioner himself was found indulging in criminal activity of transportation of illicit intoxicant in his vehicle, which is punishable under Section 60 of the Act and 21/22 of NDPS Act and, accordingly, he is facing charges in the court of law in accordance with the legal provisions. The writ petition has, accordingly, no force and liable to be dismissed.
I have given my careful consideration to the rival submissions made by the learned counsel for both the sides and have also been taken through the legal propositions and the material on record.
Before delving into the merits of this case, it would be expedient to have a look on the provisions of Section 72 of the U.P. Act No. IV of 1910 which read as under:
"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 ;
(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 thing, 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 thing (except an intoxicant) or animal to be sold at the market price by auction or otherwise.
(4) Where any such thing 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 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 the satisfaction of the Collector that it was used in caring 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 that 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 a 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 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 judicial authority as the State Government may appoint in this behalf and the judicial authority shall, after giving an 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. "
On a critical analysis of Section 72 of U.P. Act No. IV of 1910, it emerges out that the Collector is empowered to confiscate anything described under Section 72(1) of the Act under the following circumstances:-
I. Whenever an offence punishable under this Act has been committed and anything as described in sub-section (1)(a) to (e) is seized under the Act.
II. The Collector is satisfied for the reasons to be recorded that an offence has been committed due to which such thing or animal has become liable to confiscation.
III. The owner of such thing (except an intoxicant) has been given an option to pay in lieu of its confiscation such fine as the Collector thinks adequate.
IV. The Collector on receiving report of seizure or on an inspection of the seized thing, is of the opinion that the thing so seized is subject to speedy wear and tear or natural decay or it is otherwise expedient in the public interest so to do, may order seized thing (except an intoxicant) to be sold at the market price by a public auction.
V. No order of confiscation under this section shall be made unless the owner thereof or the person from whom it is seized is given-
(a) a notice in writing informing him of the grounds on which such confiscation is proposed;
(b) an opportunity making a representation in writing within such reasonable time as may be specified in the notice; and
(c) a reasonable opportunity of being heard in the matter.
Sub-section (1) of this section described about the things which are liable to confiscation. Para- (e) of sub-section (1) is much relates to this case. It says that every animal, cart, vessel or other conveyance used in such respect or packages containing intoxicants, shall be liable to confiscation. Sub-section (2) of the Section 72 of the Act empowers the Collector that he may order of confiscation of the things as described in sub-section (1) seized under any provisions of the Act whether or not a prosecution for such offence has been instituted. The Collector, however, before confiscation of such things must record reasons for his satisfaction for exercising its power of confiscation.
In the instant case, as is clearly perceptible on perusal of the confiscation order passed by the respondent no. 2, the confiscation of Indica car No. UP 86F-2873 of the petitioner was passed because of two reasons: (i) the vehicle in question was seized by the police as it was found carrying 45 quarters each containing 200ml country-made liquor and 110gms intoxicating powder. The petitioner is accordingly facing trial under Section 60 of the Act as well as under Section 21/22 of NDPS Act in the courts of competent jurisdiction; (ii) the petitioner while nabbed by the police disclosed his name as Pappu Yadav son of Ram Prakash but as per the registration certificate of the vehicle in question, his name is Bhoo Prakash son of Ram Prakash. This shows that at the time of his arrest, he disclosed his wrong name to conceal his identity showing his mentality of his involvement in transportation of intoxicants punishable under the U.P. Act No. IV of 1910.
The words " the Collector is satisfied for reasons to be record that an offence has been committed due to which such thing or animal has become liable to confiscation" as enacted in sub-section (2) of Section 72 of the Act, have wider connotation and clearly mean that the Collector must record its own reasons regarding commission of offence under the provisions of the U.P. Act No. IV of 1910 due to which anything seized has become liable to confiscation. Meaning thereby that the Collector should not exercise his discretionary powers unless he himself satisfied about the commission of the offence and further anything seized under the provisions of this Act has become liable to confiscation.
In this case, it would appear, the Collector recorded reason for his satisfaction to the following effect that the petitioner while apprehended by the police along with illicit country-made liquor disclosed his name Pappu Yadav while in fact his name was Bhoo Prakash. It is worth mentioning here that during confiscation proceedings, the Collector got inquired about the correct name and identity of the petitioner through police. According to the inquiry report submitted by the police, Pappu Yadav and Bhoo Prakash are one and the same person. It is worth mentioning here that the petitioner has clearly stated that Pappu is his nick name. The parentage and address given by the petitioner to the police and as mentioned in the registration certificate of the vehicle is one and the same. Thus, the reason recorded by the Collector for his satisfaction that the petitioner has committed offence and disclosed his name as Pappu, his seized car has become liable to confiscation, is not proper. The Collector has not considered the objections filed by the petitioner while passing the impugned order of confiscation of vehicle. It is specifically contended by the Collector that the petitioner was found carrying illicit country-made liquor in his car in the manner as alleged by the police. The petitioner, however, clearly mentioned in his objections that the police have concocted the entire theme at the instance of his political opponents of ruling party and foisted a false case on the petitioner due to political vendetta. The quantity of illicit liquor was meagre that it could be easily planted. So far as it relates to recovery of intoxicant powder (narcotic drug) is concerned as per F.I.R. version, the arresting officer had previous information that the petitioner was also possessed of contraband substance with him. But his search was not conducted in presence of any Gazetted Officer or any Magistrate in accordance with the provisions of NDPS Act. There is no public witness of the alleged recovery. The police story trotted out in the F.I.R. is quite improbable. There is even not a single word in the confiscation order to meet out the objections made as above by the petitioner. This clearly indicates that the Collector while passing the impugned order of confiscation of the vehicle of the petitioner has not applied his mind to satisfy himself that the petitioner has committed any offence under any provisions of the U.P. Act No. IV of 1910. Thus, the impugned order is in the sheer violation of the legislative mandate as mentioned in sub-section (2) of Section 72 of the Act. The reason recorded by the Collector in his satisfaction that the petitioner has committed an offence due to which his car has become liable to confiscation simply because he disclosed his name as Pappu Yadav while in fact his name was Bhoo Prakash. In this regard, as mentioned above, on inquiry made by the Collector itself, it was found that Pappu and Bhoo Prakash are one and the same person and Pappu Yadav is his nick name. Thus, the reason recorded for his satisfaction by the Collector that the petitioner has committed offence due to which his car has become liable to confiscation, is baseless. The police story as unfurled in the F.I.R. is totally improbable and concocted version, therefore, the learned Magistrate released the petitioner on bail soon after his arrest and further released his car so seized by the police.
The Collector while exercising its discretionary power under Section 72 of U.P. Act No. IV of 1910 is not supposed to pass an order in a routine manner. The Collector has to apply his mind after going through the record or material of his own and recorded independent reasons for satisfaction that an offence under the said Act has been committed due to anything seized which is within the category as laid down in sub-section (1) of Section 72 of the Act, has become liable to confiscation.
On a bare reading of show cause notice as well as the order dated 3.12.2012 passed by the respondent no. 2, it is crystal clear that the Collector (respondent no. 2) has not applied its mind and recorded no reasons of its own for satisfaction that the offence has been committed due to which the Indica car of the petitioner become liable to confiscation.
Proviso to sub-section (2) clearly lays down that except an intoxicant, the things as referred in sub-section (1) of Section 72 of the Act, the owner thereof shall be given an option to pay fine in lieu of its confiscation as the Collector thinks adequate but not exceeding the market value of the thing seized on the date of its seizure. In this case obviously the Collector had not given any option to the petitioner( the owner of the vehicle in question) to pay fine in lieu of its confiscation. This provision as appears from its language is mandatory in nature. Thus, manifestly the Collector while ordering confiscation of vehicle in question did not follow the mandatory provisions as enacted above. The entire confiscation proceedings, thus, are vitiated.
One more aspect of the case that calls for consideration is that the respondent no. 2 neither called for any report nor himself made any inspection of the seized vehicle. Therefore, the respondent no. 2 had no occasion to form opinion that the seized vehicle is subject to speedy wear and tear or natural decay or otherwise it is expedient in the public interest to order the vehicle to be sold by public auction and thus, the order of sale of vehicle by auction is also made in violation of sub-section (3) of Section 72 of the Act.
Thus, upon an over all analysis of the impugned order passed by the respondent no. 2 regarding confiscation of the vehicle and to sell it by public auction and to deposit the sale proceeds in government head are de-hors the legal provisions of Section 72 of U.P. Act No. IV of 1910.
The lower appellate court while deciding the appeal has not ventured into discussing the legal implications of the order of confiscation of the vehicle in question passed by the Collector. Rather it appears that the lower appellate court has no zeal and spirit of an appellate court and dismissed the appeal without applying it's mind,even contrary to the legal provisions of Section 72 of U.P. Act No. IV of 1910. The appellate court decided the appeal so casually that it gave no independent reasoning confirming the confiscation order of the Collector and has committed error in analysing reasoning given by the collector. Thus exercised appellate jurisdiction vested in it by the law in a perfunctory and mechanical fashion even without delving into the statutory obligations imposed upon the Collector while exercising its power of confiscation conferred upon it by Section 72 of U.P. Act No. IV of 1910.
An appeal is a proceeding undertaken to have decision reconsidered by a higher court or authority. An appeal is judicial examination of the decision by a higher court/authority of the decision of an inferior court. Appeal being a statutory remedy, carries with it a right of re-hearing on law as well as fact. It appears that the lower appellate court while deciding the appeal has taken it so casually that at 'so many places in the judgment word 'revision' has been used in place of 'appeal'. The 'appeal' is not synonymous to 'revision'. Revision is generally a power given to superior court regarding its satisfaction that a particular case has been decided according to law. Right of appeal is only available when it is conferred by some statutory provisions and the discretionary remedy of revision are two jurisdiction different in scope and content. The use of word 'appeal' at some place and 'revision' at so many other places in the impugned judgment of the lower appellate court shows that he does not know the difference between the appellate jurisdiction and the revisional jurisdiction. The lower appellate court has dismissed the appeal on the ground that the petitioner while apprehended by the police along with illicit liquor in his vehicle, disclosed his incorrect name to the police. Thus, the lower appellate court has dismissed the appeal on the same ground as taken by the Collector for his satisfaction to confiscate the vehicle. Lower appellate court, thus, has not applied his mind to the facts of the case and the law applicable thereto.
One more aspect of this case which requires discussion and decision of this Court is that sub-section (7) of Section 72 of U.P. Act No. IV of 1910 postulates that any person aggrieved by an order of confiscation passed by the Collector may within one month from the date of communication of such order, appeal to such judicial authority as the State Government may appoint in this behalf. The judicial authority shall after giving an opportunity to the appellant to be heard and pass such order as it may thinks fit, confirming, modifying or annulling the order appealed against. The State Government vide Notification No. 4986 (E)/XIII-517, dated June 4, 1978 published in U.P. Gazette (Extra.), dated 4th June, 1978 appointed 'District Judge' as the appellate authority in respect of order of confiscation passed by the Collector under Section 72 of U.P. Act No. IV of 1910.
In this case it would transpire, the appeal made by the petitioner was registered as criminal appeal before the Sessions Judge and it was decided by the Additional Sessions Judge. The District Judge certainly has no jurisdiction to entertain any criminal matter or criminal appeal. Criminal jurisdiction is vested in the Sessions Judge. It appears that in this case, the vehicle confiscated was seized by the police as it was allegedly found transporting illicit liquor which is an offence under the provisions of U.P. Act No. IV of 1910. The vehicle was confiscated by the Collector due to its alleged involvement in the offence and thus, it appears that the power of confiscation conferred upon the Collector under Section 72 of the Act is deemed under the criminal law and, since the vehicle confiscated was allegedly found involved in crime, therefore, it appears the appeal preferred by the petitioner in the court of District Judge had been registered as criminal appeal. The collector is not a criminal court but a civil authority.
Section 3(11) of General Clauses Act 1877 (Act of 1877) defines the Collector as follows:-
"(11) Collector" shall mean, in a Presidency town, the Collector of Calcutta, Madras or Bombay, as the case may be, and elsewhere the chief officer in charge of the revenue administration of a district."
Section 14 of U.P. Land Revenue Act 1901 enacts as under:-
"14. Collector of the district - The State Government shall appoint in each district an officer who shall be the Collector of the district and who shall, throughout his district, exercise all the powers and discharge all the duties conferred and imposed on a Collector by this Act or any other law for the time being in force."
Thus, from the provisions of General Clauses Act as well as U.P. Land Revenue Act, it is clear that the Collector is the officer to look-after the revenue administration of a district. The U.P. Act No. IV of 1910 is enacted mainly with the object to collect revenue for the State and, therefore, the Collector has been conferred so many powers under the U.P. Act No. IV of 1910. Thus, the Collector while exercising powers of confiscation under Section 72 of said Act is not a criminal court rather the Collector exercises its powers as a revenue authority. It is with this reason that the legislature and the state government in its wisdom has conferred the appellate power against confiscation order upon the District Judge.
The word 'District Judge' is defined in Section 3(17) of the General Clauses Act as follows:-
"(17) "District Judge" shall mean the Judge of a principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction."
In Shiv Prasad Vs. State of U.P. and another, UP 1991 (28) ACC 487, this Court held thus:
" I have carefully scrutinised the certified copy of the impugned order of the Lower Appellate Court. It is evident from the Notification that the appointed Appellate Judicial Authority is District Judge. An appeal to the District Judge should not have been heard or registered as Criminal Appeal. It should have been registered as Civil Appeal and should have been disposed of by the District Judge himself. Whenever a Judicial Authority is appointed as persona designata, hearing should be done by that Authority and as far as possible benefit of other Acts should not be taken."
In Sahab Singh Vs. State of U.P., 2003 (46) ACC 157, this Court held that the District Judge while acting as an appellate authority under the Excise Act is not a criminal court nor the District Judge while exercising powers of appellate authority under the Excise Act is permitted to exercise powers under Code of Criminal Procedure while deciding the appeal. There is clear difference between the District Judge and the Sessions Judge.
The view taken by this Court in Shiv Prasad's case (supra) was followed by the Uttaranchal High Court in Rajendra Kumar Vs. State of Uttranchal and another, 2004(50) ACC 53.
Thus, treating the appeal so preferred by the petitioner under Section 72(7) of U.P. Act No. IV of 1910 as a criminal appeal is a wrong notion. The appeal should be registered as a civil appeal and must be disposed of by the District Judge himself. It may be mentioned here that whenever a judicial authority is appointed as persona designeta, hearing should be done by that authority and as far as possible benefit of provisions of other Acts should not be taken.
Thus, exercise of appellate jurisdiction under Section 72 (7) of U.P. Act No. IV of 1910 by the District Judge as criminal court, is without jurisdiction and against the legislative mandate.
In view of the discussions made as above, the writ petition is allowed. The impugned order dated 3.12.2012 (annexure no. 5) passed by respondent no. 2 confiscating the vehicle of the petitioner bearing Registration No. UP 86F-2873 and the order dated 18.1.2013 (annexure no. 7) passed by the lower appellate court (Additional Sessions Judge, Hathras), both are erroneous and illegal, are hereby quashed. The respondents are directed to release Indica Car No. UP 86F-2873 in favour of the petitioner immediately in the same condition as it was on the date of its seizure on presentation of certified copy of this order.
I have come across several other similar appeals also wherein the order of confiscation passed by the Collector in exercise of power under Section 72 of the U.P. Act No. IV of 1910 had been challenged before the District Judge and those appeals were registered as criminal appeals contrary to the Notification issued by the State Government as mentioned above, conferring the power of appellate authority upon the District Judge. The lower appellate courts even ignored the judgements passed by this Court in the cases of Shiv Prasad (supra) and Sahab Singh (supra). I take a serious note of the fact of not following the ratio laid down by this Court in above cited cases by the lower appellate courts and continuously deciding the appeals under Section 72(7) of U.P. Act No. IV of 1910 as criminal appeals against confiscation order. Accordingly, I think it proper to issue directions to all the courts subordinate to this Court to comply with the Govt. Notification No. 4986 (E)/XIII-517, dated June 4, 1978 published in U.P. Gazette (Extra.), dated 4th June, 1978 and the judicial pronouncement made by this Court to register and decide the appeal against confiscation order, under Section 72(7) of the U.P. Act No. IV of 1910 as a civil appeal and not criminal appeal. Preferably endeavour should be made to decide the appeal by the District Judge himself.
Let a copy of this order be sent to all the District and Sessions Judge under the control of this Court through the Registrar General of this Court for compliance.