Allahabad High Court
Satyabhan Singh vs State Of U.P. And 4 Others on 31 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 50 Case :- MATTERS UNDER ARTICLE 227 No. - 10928 of 2022 Petitioner :- Satyabhan Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ashutosh Singh Counsel for Respondent :- G.A. Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard learned counsel for the petitioner Shri Ashutosh Singh and learned A.G.A. for the State.
2. Instant criminal Misc. petition under Article 227 of the Constitution of India has been filed by the petitioner to set aside the order dated 30.05.2022 passed by learned District Judge, Mathura in Civil Appeal No. 25 of 2020 (Satyabhan Vs. District Magistrate and another) as well as order dated 17.01.2019 passed by Additional District Magistrate (F&R), Mathura in Case No. 01798 of 2018 (Satyabhan Vs. State State) under Section 72 U.P. Excise Act, 1910 otherwise petitioner shall suffer irreparable loss. By the impugned order dated 17.01.2019, learned A.D.M (F&R) has passed an order of confiscation of the truck bearing registration No. HR 67 B 1888 seized by police under Sections 60/72 Excise Act under Crime No. 382/2017 under Sections 420, 120B I.P.C.
3. Learned ADM (F&R) has directed auction of said vehicle and sale proceeds be deposited with Government treasury in criminal head, and also given an option to vehicle owner to deposit the current price of vehicle as ascertained by R.T.O.
4. Feeling aggrieved by the said confiscation order passed by learned ADM (F&R), the petitioner/owner of vehicle preferred a civil appeal under Section 72 Excise Act, before District Judge, Mathura who dismissed the appeal and affirmed the impugned order passed by learned ADM (F&R). The factual matrix of the case in brief are that the informant Excise Inspector, during his course of duty received an information on 22.09.2017 that a truck of Ashok Leyland bearing registration No. HR 67 B 1888 was likely to pass through Laxminagar crossing Mathura which is loaded with cartons of illicit liquor. The informant laid a trap placing reliance on said information with assistance of his colleagues and intercepted the said truck, however, the truck driver tried to run away by stepping down from the truck, but he was caught by one Excise Constable at around 1900 hours and another person who was sitting beside the driver in the cabin of the truck was also caught by team of excise officials in the process of escape. The arrested person disclosed their name as Vinod (Driver) and Parmendra. On searching the truck 100 cartons of Royal Stag brand classic whisky bottles and 40 half bottles of Royal Stag were found. The wrappers of said bottles displayed that "For Sale in Haryana Only". The papers of the truck were seized from dashboard of the vehicle which revealed that Satyawan s/o Ram Singh resident of Risalu, Panipat was registered as owner of the vehicle. The intensity of the seized liquor was tested on spot by breaking open the seal of three bottles which were separately sealed as sample. The cartons consisted 1200 full and 960 half bottles of whisky.
5. As said truck was caught on the charge of in the inter-state smuggling of the liquor, a report was made by S.S.P. Mathura on 31.10.2017 to District Magistrate for initiating confiscation proceedings under Section 72 Excise Act, according to rules, a suo moto notice was issued on 6.11.2017 to the petitioner and service of notice on petitioner was held to be sufficient and an ex-parte confiscation order was passed on 22.11.2017. However, same was recalled on application of petitioner and after affording him an opportunity of hearing the impugned order for confiscation of vehicle was passed by ADM(F&R) on 17.01.2019 and civil appeal against that order was dismissed by District Judge on 30.05.2022.
6. Learned District Judge placing reliance on observations of Apex Court in Mustafa Vs. State of Uttar Pradesh and others, C.A. No. 6418/ 2019 (SC), (GNTC of Delhi) Vs. Narender (2014) 13 SCC, 100 and Ved Prakash Vs. Uttar Pradesh 1987 AWC 167, Virendra Gupta Vs. State Criminal Revision No. 2177 of 2018 decided by this Court that the case law cited by learned counsel for the appellant is not applicable to the facts of the case as the alleged vehicle was carrying the illegal liquors seized by Excise officials and was involved in inter-state transportation of the same against rules. No fault could be found in impugned order passed by learned ADM (F&R) Mathura, while issuing confiscation order in regard to said truck. He finally concluded that there is no perversity, illegality, impropriety, material irregularity or jurisdictional error in order passed by learned Additional District Magistrate concerned and thus, affirmed the impugned order and dismissed the civil appeal preferred by the petitioner.
7. Learned counsel for the petitioner submitted that the said truck was hired by Vinod son of Ramphal for Rs. 45,000/- rent on oral agreement as he was known to the petitioner for last 4 to 5 years. However, on 22.09.2017 said truck was seized by excise officials within jurisdiction of P.S. Jamunapur, District- Mathura on charges of inter-state smuggling of liquor and was lodged by Excise Inspector in this regard. There is no dispute regarding ownership of the petitioner regarding the vehicle, he is registered owner of the said truck and wrongly added as an accused in said criminal case only due to the fact that he is owner of the said truck. The police filed a charge-sheet against him in said offence and cognizance has been taken against him by the Court. The petitioner had prayed for bail before the Court below and he has been released on bail. The order passed by learned Additional District Magistrate dated 22.11.2017 was an ex-parte order in which the vehicle is directed to be confiscated, the petitioner filed an restoration application for reviewing the said ex-parte order before learned ADM and same was recalled vide order dated 27.10.2018 and matter was reheard by him, however, confiscation order with regard to said vehicle was passed on 17.01.2019 and he did not consider the fact that said truck was used by driver Vinod on condition of paying Rs. 45,000/- per month as rent to the owner. The petitioner was not present at the time of the incident on the spot and he is not supposed to be aware of the day to day commercial activities of the driver in whose custody the truck was lying. Learned District Judge also failed to appreciate the facts of the case in proper manner and dismissed his civil appeal preferred against order of learned ADM. The said liquor was not obtained from possession of the petitioner, therefore the petitioner had to seek constitutional remedy before this Hon'ble Court. He further submitted that the vehicle has been kept idle since long resulting in wear and tear of the vehicle and its efficacy is deteriorating day by day, he earns his livelihood from this vehicle. This is admitted position that he was not arrested on the spot.
8. Learned counsel for the appellant placed reliance on pronouncement of Hon'ble Apex Court in Sunder Bhai AmbalaI Desai Vs. State of Gujarat 2003 (46) A.C.C.223 wherein Hon'ble Apex Court observed that it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of the applications for return of such vehicles. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court.
9. Learned counsel for the appellant also placed reliance on an AFR judgment of this court dated 12.02.2021 in Application under Section 482 No.1325 of 2021 Chadra Pal Vs. State of U.P. and Another, wherein it is held in view of law laid down by Apex Court as well as this Court as cited in judgment, Magistrate as well as Revisional Court ought to have decided the issue regarding their own jurisdiction for releasing seized vehicle in exercise of powers under the Code in respect of vehicle which has been seized and confiscation proceedings with regard to which are pending consideration before District Magistrate under Section 72 of Act, 1910. However, the said issue remains unanswered by both the courts below. Thus, the order impugned in present application cannot be sustained on account of erroneous reasoning and therefore, liable to be quashed and matter is remitted to concerned Magistrate to decide release application of the applicant afresh in the light of observations made herein above within a period of one month.
10. Learned counsel for the appellant further placed reliance on judgment of this Court in Paapu Yadav alias Bhoo Prakash Yadav Vs. State of U.P.(2014) AIILJ 50,the fact of the case were somewhat similar to present case as S.H.O Sikandrarau, District-Hathras intercepted an Indica car which was loaded with illicit liquor and intoxicating power, acting on a secret information. The petitioner was sole occupant of the vehicle, the intoxicating power appeared diazapam powder weighing 110 gms, he was apprehended under Section 60 of United Provinces Excise Act, 1910 under Section 21/22 of N.D.P.S. Act. He was released on bail in due course and applied for release of vehicle before Judicial Magistrate who rejected the application on ground that confiscation proceedings with regard to said vehicle were under way before District Magistrate. He made a representation before District Magistrate under Section 5(A)(2) of Section 72 but same was rejected and confiscation order was passed and the vehicle was directed to be sold by public auction. The appeal preferred against order of District Magistrate was also dismissed by learned Additional Sessions Judge, Hathras. This Court observed that the appeal against confiscation order passed by District Magistrate will be heard as civil appeal not criminal appeal by 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." It is evident from the 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." Endeavour should be made to decide the appeal by the District Judge himself. In Pappu Yadav's case this Court quashed impugned order of District Magistrate confiscating the vehicle of the petitioner and the order passed by the lower appellate court being erroneous and illegal and the respondents were directed to release the said Car in favour of the petitioner immediately in the same condition as it was on the date of its seizure. However, aforesaid case appears to be decided on ground that the Additional District Judge had decided the appeal as a criminal appeal instead of civil appeal and the same should have been decided by District Judge himself instead of transferring the same to concurrent of Additional District Judge. 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. This Court also observed that the lower appellate court, thus, has not applied his mind to the facts of the case and the law applicable thereto and dismissed the appeal on the same ground as taken by the Collector for his satisfaction to confiscate the vehicle. It further observed in para 11that 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, 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 became liable to confiscation, is baseless. 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 record independent reasons for satisfaction that an offence under the said Act has been committed due to which the said vehicle is liable to be confiscation in sub-section (1) of Section 72 of the Act."
11. Provisions of Section 72 of the Act is reproduced as follows:-
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 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 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. "
12. On a meticulous 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 where the conditions prescribed in sub Section (1)(a) to (e) is satisfied and he has to afford a reasonable opportunity of being heard to the owner of the vehicle after issuing a notice in writing informing him of the grounds on which such confiscation is proposed and an opportunity of making a representation in writing against such proposed confiscation.
13. Per contra, learned A.G.A. submitted that there is no illegality, irregularity or perversity in impugned orders passed by learned confiscating authority, Additional District Magistrate (F&R) who has confiscated the vehicle in question, in exercise of powers under Section 72 of U.P. Excise Act, 1910 conferred on collector as well as order passed by learned District Judge, Mathura. The impugned orders are well within jurisdiction of both the statutory authorities and in consonance with provisions of Section 72 of the Act. So far as the judgment of this Court in Chandra Pal Vs. State of U.P. and Another (supra) is concerned, this case was decided on its own facts as in that case the release application of the vehicle seized under provisions of Section 62, 63, 72 U.P. Excise Act was moved before learned Additional Chief Judicial Magistrate who had rejected the application for release of the vehicle by placing reliance upon judgment of Apex Court in State (NCT of Delhi) Vs. Narender 2014 (13) SCC 100 without deciding his jurisdiction to entertain the release application filed by the applicant seeking release of seized vehicle in terms of Section 457 Cr.P.C. and the same was affirmed by learned Sessions Judge in criminal revision filed by the applicant against the order of learned Magistrate.
14. This Court observed that orders impugned could not be sustained on account of erroneous reasoning and therefore, liable to be quashed.
15. This Court also observed that upon comparison of provisions in Delhi Excise Act 2009 as well as U.P. Excise Act, 1910, the Court finds that there is no provision in Act of 1910 similar to the provisions contained in Section 61 of U.P. Excise Act accordingly, ratio laid down in Section 61 of the Delhi Excise Act, 2009 bars the jurisdiction of all Courts but, even in the absence of similar provisions in the State (NCT of Delhi) Vs Narender ( supra) is confined to matters arising out of Delhi Excise Act as such, aforesaid judgement is distinguishable and the ratio laid down therein cannot be applied ipso facto for deciding release application in respect of seized vehicle regarding which confiscation proceedings are pending in terms of Section 72 of Act, 1910.
16. In present case, this is admitted fact that no application was filed by the applicant before Court of Judicial Magistrate concerned for release of seized truck, the confiscation proceedings were initiated by Collector (ADM F&R) and in present case on report of S.S.P, Mathura and after giving opportunity of hearing to the applicant/petitioner, learned ADM (F&R)/ collector passed impugned order of confiscation of the vehicle as such. In present case, confiscation proceedings are not pending and are already decided by competent authority. It is not in dispute that collector is sole authority under the Act to pass an order for confiscation/release of vehicle so seized under the law. In this regard has been stated by Hon'ble Apex Court in Civil Appeal No. 6418 of 2019 Mustafa Vs. State of U.P. and Anothers reported in SCC online Web edn p.1, wherein Hon'ble Apex Court observed that Section 61 of the Delhi Excise Act, 2009 bars the jurisdiction of all Courts but, even in the absence of similar provisions in the Act, the principle laid down in State( NCT of Delhi) Vs. Narender 2014, is applicable in the present case as the Act is inconsistent with the provisions of the Code. The Court held that Collector has exclusive jurisdiction to confiscate the vehicles and in case the seized things are subject to speedy wear and tear or natural decay, he may order to sell the same in the manner prescribed under sub-section (3) of Section 72 of the Act. Sub- section (4) deals with distribution of sale proceeds when the seized thing is sold which is subject to wear and tear and natural decay or when it is expedient in public interest to do so. Sub- section (8) of Section 72 of the Act deals with a situation where a prosecution of an offence is instituted in relation to which confiscation was ordered, the thing or animal shall be disposed of subject to the provisions of sub-section (4) of Section 72 of the Act in accordance with the order of the Court. The order of the Court in sub-section (8) of Section 72 of the Act is after conclusion of the prosecution which is different from the seized things which are subject to speedy wear and tear or natural decay as contemplated by sub-section (3) of Section 72 of the Act.
17. On perusal of aforesaid dictum of Hon'ble Apex Court together with the statutory provisions under Section 72 of the Act, it can be held that collector is vested with exclusive jurisdiction to confiscate any such thing like animal cart or other conveyance, if he is of opinion that this is subject to speedy wear and tear or natural decay or it is otherwise expedient in public interest, whether or not prosecution charges has been instituted or concluded while exercising powers of confiscation provided under Section 2 and 3 of the Act. The collector has not to wait for conclusion of trial relating to criminal offence under the Act and while confiscation order, he has to record his satisfaction that the offence under the Act has been committed and the vehicle has been seized by competent official under provisions of the Act after giving opportunity of hearing to the person who claims to be owner of the vehicle.
18. On perusal of Section 72 of the Act, it appears that in Section 72(V)(b) it is provided that "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 carrying the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the person incharge of the animal cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use."
19. Now, it is absolutely clear that once a vehicle is seized in violation of the provisions of U.P. Excise Act by competent police or Excise officer, a heavy burden is lied upon the owner of the vehicle which he has to discharge before the authorities concerned that firstly, he had no knowledge that such an act was being done with said vehicle and secondly, that he applied all the necessary safety and precautions to see that such an Act may not be committed by the said vehicle. The petitioner, in fact, failed to discharge his burden before Addl. District Magistrate, as well as before the District Judge, that is the appellate authority. The learned Additional District Magistrate while passing confiscation order with regard to the vehicle has dealt with the case of petitioner with prayer to release the vehicle in his favour and after arriving at a conclusion that the said vehicle has been used in illegal smuggling of illicit liquor which consists of 140 cartons of Royal Stag brand manufactured in Haryana against U.P. Excise, which is a serious offence against State revenue and a conspiracy to defeat the U.P. Excise policy and for that reason an F.I.R lodged under Section 60/72 Excise Act along with Section 420, 120B I.P.C. He also stated that due to transportation of illicit liquor in the State of U.P., the vehicle is found to be involved in smuggling of liquor and its seizure, therefore its confiscation is found proper and therefore, it has to be disposed of in terms of Section 72 U.P. Excise Act.
20. Learned District Judge has also not found any infirmity, illegality or perversity in appeal preferred against the confiscation order which is by learned Collector/ADM (F&R). Even if the owner/petitioner was not found on the spot along with when the vehicle was seized in presence of co-accused, the principle of vicarious liability will apply to this police case as the vehicle was operated by the driver at the time of incident who was not the owner. The petitioner has failed to prove the fact before the Court below that the vehicle was transported with illicit liquor without knowledge or connivance except the stand taken by him that he was not aware about day to day movement of the vehicle as the same was operated by the driver on a fix rate paid to him on monthly basis.
21. Learned Collector has also given an option in impugned order to owner of the vehicle(present petitioner) to deposit the current price of vehicle as ascertained by ARTO and in that case, the vehicle will not be auctioned, otherwise same will be auctioned and the sale proceeds will be deposited in Government treasury and this order is in consonance with the provisions of Section 72(2) proviso which 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. Therefore, the option given to the petitioner to pay the market value of the vehicle as ascertained by ARTO in lieu of its confiscation and therefore, it cannot be said that the petitioner has become entirely deprived of his vehicle by the impugned order and if the vehicle has not been auctioned yet, the collector will afford him an opportunity to deposit the market price of the vehicle as determined by ARTO concerned in lieu of confiscation and if he does so, the vehicle will be released in his favour and the amount deposited by him in lieu of confiscation will lie in the custody of Government subject to provisions of sub-Section 8 of Section 72.
22. In view of the foregoing discussions, I find no illegality, irregularity or perversity in impugned orders passed by learned District Judge as well as Collector/ADM (F&R) concerned and the appeal is liable to be dismissed.
23. With above observations, the present writ petition stands dismissed.
Order Date :- 31.1.2023 Nitika