Gujarat High Court
Pareshkumar Jaykarbhai Brahmbhatt vs State Of Gujarat on 15 December, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/8521/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL) NO.
8521 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 8538 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 8851 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 8912 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 9118 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 9178 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 9245 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 9526 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO any order made thereunder ?
CIRCULATE THIS JUDGEMENT IN THE SUBORDINATE JUDICIARY.
Page 1 of 58HC-NIC Page 1 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT ========================================================== PARESHKUMAR JAYKARBHAI BRAHMBHATT....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================== Appearance:
M AD SHAH, MR SV RAJU, SENIOR ADVOCATES AS AMICUS CURIAE MR TANMAY B KARIA, MR ST PATEL, MR MG PANDYA, MR NASIR SAIYED, MR HIREN M MODI, MR PARTHIV A BHATT AND MR DEVANG J JOSHI, ADVOCATES for the respective Applicants MR MITESH AMIN, PUBLIC PROSECUTOR ASSISTED BY MR DHARMESH DEVNANI AND MS MOXA THAKKAR, APPs for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 15/12/2017 CAV COMMON JUDGMENT 1 As the issues raised in all the captioned petitions are the same, those were heard analogously and are being disposed of by this common judgment and order.
2 For the sake of convenience, the Special Criminal Application No.8521 of 2017 is treated as the lead matter.
3 By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order dated 12th October 2017 passed by the Principal Sessions Judge, Kheda at Nadiad in the Criminal Revision Application No.117 of 2017, by which the Revisional Court rejected the revision application filed by the Page 2 of 58 HC-NIC Page 2 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT applicant herein, thereby affirming the order passed by the Additional Judicial Magistrate First Class, Kapadvanj dated 27th September 2017 below Exhibit: 1 in connection with the First Information Report bearing prohibition C.R. No.186 of 2017 registered with the Kapadvanj Police Station for the offence punishable under Sections 65E, 116B and 81 of the Gujarat Prohibition Act.
4 The facts giving rise to this application may be summarised as under:
4.1 The petitioner herein is the registered owner of a motor car namely HYUNDAI CRETA bearing registration No.GJ23BD6082. On 17th September, 2017, one First Information Report came to be registered in the Kapadvanj Police Station, District: Kheda. Three persons namely Prakashchandra, Jivansinh Rajavat and Chetanlal Kalusinh were named as the accused in the F.I.R. The F.I.R. was registered in connection with the offence punishable under the Gujarat Prohibition Act.
5 It appears from the materials on record that the vehicle in question i.e. of the ownership of the applicant herein was used for the purpose of illegal transport of liquor exceeding 10 litres in quantity.
6 As the car came to be seized by the police, the applicant herein preferred an application under Section 451 of the Code of Criminal Procedure, 1973 for the interim release of the same. This application came to be rejected by the Magistrate substantially relying on the provisions of Section 98(2) of the Gujarat Prohibition Act read with Rule 9 of the Gujarat Prohibition (Liquor Samples and Determination of Quantity Seized Liquor) Rules, 2012. The Magistrate took the view that the powers under Section 451 of the Cr.P.C. for the purpose of interim release of the vehicle pending the trial or confiscation proceedings have Page 3 of 58 HC-NIC Page 3 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT been curtailed by virtue of Section 98(2) of the Gujarat Prohibition Act.
7 The applicant, being dissatisfied with the order passed by the Magistrate concerned, filed a revision application before the Sessions Court, Kheda. The revision application filed by the applicant also came to be rejected by the Principal Sessions Judge observing as under:
"Issue No.1:~
7. I have considered the impugned order of the Ld. Lower Court. The impugned order is mainly based upon Section98(2) of the Gujarat Prohibition Act, 1949, and Rule9 of Gujarat Prohibition (Liquor Samples & Determination of Quantity Seized Liquor) Rules, 2012, which are as under:~
(a). Section98(2) of the Gujarat Prohibition Act, 1949, is as under:~
98. Things liable to confiscation :
(1). XXX (2). Any receptacle, package or covering in which any of the articles liable to confiscation under subSection (1) is found and the other contents of such receptacle, package or covering and the animals, carts, vessels or other conveyances used in carrying any such article shall likewise be liable to confiscation by the order of the Court [but it shall not be released on bond or surety till the final judgment of the Court where the quantity of the seized liquor is exceeding the quantity as may be prescribed by the rules].
(b). Rule9 of Gujarat Prohibition (Liquor Samples & Determination of Quantity Seized Liquor) Rules, 2012, is as under:~ Rule9. Seizure of vehicles when quantity more than 10 liters:~ Where the quantity of liquor seized is more than 10 liters in respect of any offence punishable under the Act, the vehicle or conveyance carrying such liquor shall be liable to confiscated in accordance with the provisions of subsection (2) of Section 98 of the Act.
8. The above mentioned vehicle is involved in the offence punishable under the prohibition Act, as mentioned above for the quantity more than 10 liters.
9. I have considered the citation of Hon'ble High Court of Gujarat in the Page 4 of 58 HC-NIC Page 4 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT 'Special Criminal Application No.68/2013' in the case of 'Dilip Babu Mahida v/s. State of Gujarat', in which, the vehicle was involved in the offence punishable under the Gujarat Prohibition Act, 1949 and Hon'ble High Court has ordered to hand over the possession of the vehicle to the applicant.
In this regard, I have considered the above mentioned citation of Hon'ble High Court of Gujarat. The citation is under Section482 of the Criminal Procedure Code, 1973. Section482 of the Criminal Procedure Code, is as under:~
482. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
In view of the above mentioned provisions of Law, the above mentioned inherent power lies with the Hon'ble High Court only. This Court is subordinate Court to the Hon'ble High Court.
In view of the above mentioned facts and circumstances, this citation is not helpful to the applicant.
10. I have considered the citation of Hon'ble High Court of Gujarat in the 'Special Criminal Application (Quashing) No. 2174 of 2015' in the case of 'Akil Shabir Kakar v/s. State of Gujarat', in which, Hon'ble High Court has ordered to hand over the possession of the vehicle to the applicant, which is involved in the offence of prohibition Act.
Looking to the above mentioned citation of Hon'ble High Court of Gujarat, the above mentioned application filed by the petitioner is under Article227 of the Constitution of India. The Article227 of the Constitution of India is as under:~
227. Power of superintendence over all courts by the High Court. [1]. Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
[2].Without prejudice to the generality of the foregoing provisions, the High Court may (a). call for returns from such courts;
(b). make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c). prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
Page 5 of 58HC-NIC Page 5 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT [3]. The High Court may also settle tables of fess to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein:
Provided that any rules made, forms prescribed or tables settled under clause [2] or clause [3] shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
[4]. Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces.
In view of the above mentioned fact, the constitutional power is lying with the Hon'ble High Court and not with this Court. This Court is subordinate to the Hon'ble High Court.
Therefore, this citation is not helpful to the applicant.
11. Moreover, I have also considered the citation in case of 'Sundarbhai Ambalal Desai v/s. State of Gujarat', reported in 'A.I.R. 2003 SC 638' of Hon'ble Apex Court, which is under Section451 & 457 of the Criminal Procedure Code. The citation has been pronounced in the year 2003, whereas, the new amendment in the Section98(2) of the Gujarat Prohibition Act, is come into existence on 13122011, in which, there is prohibition to release the vehicle on bond or security, where the vehicle is involved in the offence for the liquor exceeding the quantity prescribed by the rules.
Moreover, when there is a situation regarding which one prevail, whether procedural law or the Act itself, then the provisions of Act will prevail. In view of the above mentioned particular provisions of Law, Section98(2) of Gujarat Prohibition Act, it will prevail over the procedural law I.e. Criminal Procedure Code, Section451.
Therefore, this citation is not helpful to the applicant.
In view of the above mentioned facts and circumstances, provisions of Law and citations, it appears that, the Ld. Lower Court has considered the facts and circumstances and provisions of Law in the right perspective and, therefore, I come to the conclusion that the Ld. Lower Court has not made any error in dismissing the above mentioned application of the applicant and, therefore, I come to the conclusion that it is not required to interfere with the above mentioned order of the Ld. Lower Court, hence I answer Issue No.1 in the negative.
Issue No.2:~
13. The present Criminal Revision Application deserve to be dismissed, hence I Page 6 of 58 HC-NIC Page 6 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT pass the following order is in the interest of justice.
O R D E R
1. The Criminal Revision Application No.117/2017 is hereby dismissed.
2. The order dated 27092017, passed by the Court of the Ld. Additional Judicial Magistrate First Class, Kapadwanj, dismissing the application of the applicant to hand over the possession of the vehicle under Section451 of Criminal Procedure Code, seized in connection with the offence under 65(e), 116(b), 81,98(2) of the Gujarat Prohibition Act, registered at Kapadwanj Town Police Station vide Prohibition C.R.No. 186/2017, is hereby upheld and confirmed."
8 Being dissatisfied with the order passed by the Revisional Court, the applicant is here before this Court with this application under Article 227 of the Constitution of India invoking the supervisory jurisdiction of this Court.
● SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL
APPEARING IN THE RESPECTIVE PETITIONS:
9 The learned counsel appearing for the respective applicants
vehemently submitted that the Courts below have committed a serious error in rejecting the applications filed under Section 451 of the Cr.P.C. on the ground that the jurisdiction of a Magistrate or Court to pass an appropriate order under Section 451 of the Cr.P.C. to release the vehicle by way of an interim custody pending the investigation, trial or inquiry have been barred or restricted, as provided under Section 98(2) of the Gujarat Prohibition Act. According to the learned counsel, Section 98(2) of the Gujarat Prohibition Act offends Articles 14, 19, 31 and Article 300A of the Constitution of India. It was further submitted that Section 98(2) overrides the provisions in the Code of Criminal Procedure, in respect of disposal of property pending disposal of cases as also the Page 7 of 58 HC-NIC Page 7 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT inherent powers vested in the High Court under Section 482 of the Cr.P.C. It was also contended that Section 98(2) offends the rights of a person to possess the property, and as such the Government should be called upon to satisfy that such restriction is reasonable coming within the reasonable limit envisaged in Clauses (5) and (6) of Article 19 of the Constitution of India. It was further pointed out that the Gujarat Prohibition Act comes under the State Seventh Schedule to the Constitution. The Gujarat List, i.e., entry 8 of List II of the Seventh Schedule to the Constitution. It was submitted that it overrides the provisions of Sections 451 and 482 of the Code of Criminal Procedure dealing with the disposal of property and the inherent powers of the High Court. It was also submitted relying on one decision of the Madras High Court in the case of Sakthidevi vs. State [2012 Cri.L.J. 461] that the confiscation proceeding is no bar in granting the relief of interim custody of vehicle. This decision of the Madras High Court is in connection with Section 14(4) of the Tamil Nadu Prohibition Act. It was further submitted that the power of the Magistrate to release the vehicle under Section 451 of the Cr.P.C. should be read into Section 98(2) of the Gujarat Prohibition Act. It was also sought to be contended that what is prohibited is the release of the vehicle on a bond or security. The vehicle can be released on any other stringent terms and conditions. In the last, it was submitted that the provision is arbitrary and unreasonable. The vehicle is detained only for the identity at the time of the trial. The curtailment of the power of the Court from passing any interim order will result in a total loss of the property. It was submitted that in almost all the cases, chargesheet has yet to be filed, and if the vehicles are allowed to be kept in the open yard, they will deteriorate not only for value, but will be open to pilferage of its parts by the miscreants. The disposal of cases will take a long time and until then as per Section 98(2), an interim order regarding disposal of such property shall be Page 8 of 58 HC-NIC Page 8 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT passed by any Court. One another limb of submission canvassed on behalf of the applicants is that the proviso to Section 99 of the Act comes into play in the course of the confiscation proceedings. It is not necessary for the owner of the vehicle at the stage of claiming interim custody of the vehicle to satisfy the Court that he had exercised due care in preventing the commission of the offence.
10 The learned counsel appearing for the respective applicants have placed strong reliance on a decision of the Supreme Court in the case of State of Madhya Pradesh vs. Madhukar Rao [(2008) 14 SCC 624]. In the case before the Supreme Court, the issue was whether the amendment of Section 39(1)(d) of the Wild Life (Protection) Act, 1972 curtailed the power of the Court to order interim release of the vehicle seized in connection with the offence under the Wild Life (Protection) Act, 1972. The Supreme Court, while rejecting the submission that Section 50 and the other provisions in Chapter VI of the Wild Life (Protection) Act excluded the application of any provisions of the Criminal Procedure Code, observed in para 15 as under:
"We are unable to accept the submissions. To contend that the use of a vehicle in the commission of an offence under the Act, without anything else would bar its interim release appears to us to be quite unreasonable. There may be a case where a vehicle was undeniably used for commission of an offence under the Act but the vehicles owner is in a position to show that it was used for committing the offence only after it was stolen from his possession. In that situation, we are unable to see why the vehicle should not be released in the owners favour during the pendency of the trial."
11 Having regard to the importance of the issue, I requested Mr. A.D. Shah and Mr. S.V. Raju, the learned senior counsel to assist the Court as Amicus Curiae. Mr. Shah submitted that the power of the Magistrate under Sections 451 or 457 of the Cr.P.C., as the case may be, should be Page 9 of 58 HC-NIC Page 9 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT read into Section 98(2) of the Act, 1949. According to Mr. shah, although the legislature has used the word "shall", the same may be read as "may". The argument of Mr. Shah is that if the word "shall" is not read as "may", then Section 99 of the Act, 1949 would become redundant. According to Mr. shah, Section 99 provides for return of things liable to confiscation to the bona fide owners. Mr. Shah, laid much emphasis on the words "when during the trial of a case", as contained in Section 99 of the Act, 1949. According to Mr. Shah, the words "during the trial" means that at any time during the course of trial, an application can be filed for release of the vehicle. Mr. Shah takes support of the proviso to Section 99 of the Act to fortify his submission. Mr. Shah, in support of his submissions, placed reliance on one decision of the Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs to Government of West Bengal vs. Abani Maity reported in AIR 1979 SC 1029. Mr. Shah placed reliance on paras 17, 18, 19, 20 and 25.
12 Mr. S.V. Raju, the learned senior counsel submitted that there is no scope for the Court to read the word "shall" as "may" in Section 98(2) of the Act, 1949. According to Mr. Raju, the intention of the legislature appears to be very clear. The intention is to create deterrence by curtailing the power of the Court to release the vehicle seized in connection with the prohibition offences pending the trial or confiscation proceedings. Mr. Raju further submitted that the words "during the trial of a case" in Section 99 of the Act would not mean that at any stage of the trial. According to Mr. Raju, Section 99 of the Act would come into play when the Court decides to pass an appropriate order as regards disposal of the muddamal property under Section 452 of the Code of Criminal Procedure. If the power of the Magistrate to order interim release of the vehicle under Sections 451 or 457 of the Code is to be Page 10 of 58 HC-NIC Page 10 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT read also in Section 99 of the Act, 1949, then the object with which Section 98(2) has been amended, would be frustrated. According to Mr. Raju, the plea of repugnancy can be urged only if both the legislations fall under the Concurrent List. Under Article 254 of the Constitution, a State law passed in respect of a subjectmatter comprised in List III would be invalid if its provisions are repugnant to a law passed on the same subject by the Parliament and that too only if both the laws cannot exist together. Mr. Raju placed reliance on the following observations of the Supreme Court in the case of K.T. Plantation Private Limited vs. State of Karnataka [(2011) 9 SCC 1 as contained in para 109:
"When the repugnancy between the Central and State Legislations is pleaded we have to first examine whether the two legislations cover or relate to the same subjectmatter. The test for determining the same is to find out the dominant intention of the two legislations and if the dominant intention of the two legislations is different, they cover different subjectmatter then merely because the two legislations refer to some allied or cognate subjects, they do not cover the same field."
13 Mr. Raju also relied upon one another decision of the Supreme Court in the case of Security Association of Indian and another vs. Union of India and others [(2014) 12 SCC 65], more particularly para
51. However, Mr. Raju submitted that the extraordinary jurisdiction of this Court under Article 226 of the Constitution would not be affected in any manner. The argument is that if the owner of the vehicle or the person claiming possession of the vehicle is able to show that the seizure was not in accordance with law or contrary to the provisions of the Act, in such circumstances, the High Court would be justified in exercising its extraordinary jurisdiction under Article 226 of the Constitution for the purpose of releasing the vehicle subject to certain terms and conditions.
Page 11 of 58 HC-NIC Page 11 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT ● SUBMISSIONS ON BEHALF OF THE STATE RESPONDENTS : 14 On the other hand, all these applications have been vehemently
opposed by Mr. Mitesh Amin, the learned Public Prosecutor assisted by Mr. Dharmesh Devnani and Ms. Moxa Thakkar, the learned Additional Public Prosecutors appearing for the State. Mr. Amin, the learned Public Prosecutor submitted that the language of the statute is very clear. According to Mr. Amin, the jurisdiction of a Magistrate or Court to pass an order under Section 451 of the Cr.P.C. to release the vehicle by way of interim custody pending the investigation, trial or inquiry can be said to have been restricted or barred under the Act. It is submitted that Article 47 of the Constitution enjoins that the State shall endeavour to bring about prohibition of the consumption of all the intoxicating drinks which are injurious to health. Mr. Amin submitted that over a period of time, it has been noticed by the Government that the consumption of alcohol has grown alarming and has developed into a social evil. In such circumstances, the Government thought fit to amend the Prohibition Act by incorporating certain stringent provisions. The intention is to curb the consumption of alcohol and implement the prohibition policy prevailing in the State of Gujarat strictly. Mr. Amin, the learned Public Prosecutor, submitted that having regard to the intention of the legislature, the vehicle cannot be released even on the stringent of the conditions. To elaborate, according to Mr. Amin, the vehicle cannot be released even upon asking the owner to furnish a bank guarantee. According to Mr. Amin, when the legislature has thought fit to use the words "bond or security", a bank guarantee would be covered in the term security.
15 Mr. Amin, the Public Prosecutor further submitted that by no stretch of imagination, the word "shall" in section 98(2) of the Act, 1949 can be read as "may". Mr. Amin submitted that Section 99 of the Act, 1949 is independent of Section 98 of the Act. Mr. Amin tried to develop Page 12 of 58 HC-NIC Page 12 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT an argument that the issue of confiscation of the vehicle would arise only on conclusion of the trial. To put it in other words, whether the vehicle seized in connection with the offence under the Act is liable to be confiscated or not, can be decided on the basis of a formal inquiry that the Magistrate may undertake under Section 452 of the Cr.P.C. It is only on conclusion of the trial that if the Magistrate decides to confiscate the vehicle, a notice will have to be issued to the person concerned, and after hearing him, the Court may pass an appropriate order. According to Mr. Amin, the proviso to Section 99 would come into play at that stage and not at the stage of Section 98 of the Act or while considering an application under Sections 451 or 457 of the Cr.P.C. Mr. Amin submitted that if it is the case of the applicants that Section 98(2) imposes unreasonable restriction or is constitutionally invalid, then the Court will have to challenge the validity in accordance with law. However, as on date, the plain reading of the section would suggest that the powers of the Court for release of the vehicle at an interim stage are curtailed.
16 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether Section 98(2) of the Gujarat Prohibition Act restricts or bars the jurisdiction of a Magistrate or Court to pass an order under Section 451 of the Cr.P.C. to release the vehicle by way of interim custody pending the investigation, trial or inquiry.
17 Before adverting to the rival submissions canvassed on either sides, it is necessary for me to look into few provisions of the Act. I must start first with the objects and reasons.
"STATEMENT OF OBJECTS AND REASONS Page 13 of 58 HC-NIC Page 13 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT The antisocial elements adulterate liquor by mixing the methyl alcohol or other poisonous substances and make the spurious liquor which is commonly known as Laththa. The consumption thereof may cause harmful effect to human body or cause death of a person.
Recently, due to such type of illegal activities, some people have lost their lives. With a view to prohibiting the misuse of such illicit and spurious liquor and in view of the situation, it is considered necessary to amend the existing provisions of the Bombay Prohibition Act, 1949 and make stringent provisions for offences relating to manufacturing, constructing, selling, buying, keeping, transporting, etc. of such spurious liquor.
With a view to preventing the sad incidents of Laththa consumption causing death of persons, it is considered necessary to insert new section 65A which inter alia provides that any person who manufactures Laththa, constructs any distillery or brewery, sells or buys, uses, keeps, transports or has in his possession such Laththa shall be punished for a term which may extend to ten years but not less than seven years. It is also provided that when there has been death of person by consumption of the said Laththa, the person who has manufactured, kept, sold etc. shall be punished with death or imprisonment for life and also fine.
It is also provided that conveying vehicles used in transport of liquor (including Laththa) shall not be released on bond or surety, in cases where the quantity of the seized liquor exceeds the quantity as may be prescribed by rules, till the final order of the Court. Such vehicle would be liable to be confiscated as per the existing provisions of section 98.
18 Chapter VII of the Act provides for the offences and penalties. Section 65 provides for the penalty for illegal import, etc of intoxicant or hemp. Section 65 of the Act reads as under:
"65. Penalty for illegal import, etc. of intoxicant or hemp Whoever, in contravention of the provisions of this Act, or of any rule, regulation or order made or of any licence, pass, permit or authorisation granted thereunder
(a) imports or exports any intoxicant [(other than opium)] or hemp,
(b) manufactures any intoxicant [c] [(other than opium)],
(c) constructs or works any distillery or brewery, Page 14 of 58 HC-NIC Page 14 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT
(d) bottles liquor,
(e) possesses, transports, sells or buys] any intoxicant] [(other than opium)] or hemp, or
(f) uses, keeps or has in his possession any materials, still utensils, implements or apparatus for the purpose of manufacturing any intoxicant [(other than opium)].
[(g) cultivates or collects hemp.] [shall, on conviction, be punished for each such offence with imprisonment for a term which may extend to ten years and with fine which may extend to five lakh rupees:
Provided that, in absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court.
(i) for a first offence, such imprisonment shall not be less than two years and fine shall not be less than one lakh rupees;
(ii) for a second offence, such imprisonment shall not be less than three years and fine shall not be less than two lakh rupees;
(iii) for a third or subsequent offences, such imprisonment shall not be less than seven years and fine shall not be less than five lakh rupees];
[***]"
19 Chapter IX is with regard to the powers and duties of officers and procedure. Section 117 of the Act is with regard to the investigation, arrest, searches, etc. Section 117 of the Act reads as under:
"117. Investigations arrests, searches, etc., how to be made. all investigations, arrests, detentions in custody and searches shall be made in accordance with the provisions of the Code of Criminal Procedure, 1973 [2 of 1974] .
Provided that [***] no search shall be deemed to be illegal by reason only of the fact that witnesses for the search were not inhabitants of the locality in which the place searched is situated."Page 15 of 58
HC-NIC Page 15 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT 20 Section 119 of the Act provides that the offences under Sections 65, 65A, 67, 671A and 68 shall be nonbailable.
21 Section 121 of the Act confers powers upon the prohibition officer duly empowered by the State Government or any police officer to open packages, etc. Section 121 of the Act reads as under:
"121. Power to open packages etc. (1) Any Prohibition Officer duly empowered in this behalf by the [State] Government or any Police Officer may open any package and examine any goods and may [stop and search] for any intoxicant, hemp, mhowra flowers, or molasses any vessel, vehicle or other means of conveyance [and may seize any intoxicant, hemp, mhowra flowers, molasses or any other thing liable to confiscation or forfeiture under this Act or any other law for the time being in force relating to excise revenue found while making such search.] (2) The unloading and carrying of goods, the bringing of them to the place appointed under subsection (3) for examination, the opening and repacking of them, where such operations [are necessary for searches made] under this section and the removing of goods to and placing of them in the place appointed under subsection (3) [for examination or deposit], shall be performed by or at the expense of the owner of such goods.
(3) The owner of goods or the persons incharge of the goods shall, if so required by any officer conducting the search, take the goods [to a place appointed in Greater Bombay by the Commissioner of Police, Bombay and elsewhere, by the District Magistrate] for the purpose of examination or deposit.
[(4) The expenses incurred by the State Government for any of the purposes mentioned in subsection (2) may be recovered from the owner, or as the case may be, the personincharge, of the goods as arrears of land revenue.]"
22 Section 123 of the Act provides for the arrest of the offenders and seizure of contraband articles. Section 123 of the Act reads as under:
"123. Arrest of offenders and seizure of contraband articles. (1) Any Prohibition Officer authorised by the [State] Government in this behalf or Page 16 of 58 HC-NIC Page 16 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT any Police Officer may
(a) arrest without warrant any person whom he has reason to believe to be guilty of an offence under this Act;
(b) seize and detain any intoxicant hemp, mhowra flowers or molasses or other articles which he has reason to believe to be liable to confiscation or forfeiture under this Act [and seize any document or other article which he has reason to believe may furnish evidence of the commission of any offence under this Act.
(2) Any Prohibition Officer authorised by the [State] Government under this section who arrests any person under clause (a), or seizes and detains any article under clause (b), of subsection (1) shall forward such person or article, as the case may be, without unnecessary delay to the officerin charge of the nearest Police Station."
23 Section 125 of the Act is with regard to power to seize intoxicants, etc. The Section 125 of the Act reads as under:
"125. Power to seize intoxicants, etc The [Director], Collector or any Prohibition Officer duly empowered in this behalf or any Police Officer may
(a) seize in any open place, or in transit any intoxicant, hemp, mohwra flowers or molasses or any other thing which he has reason to believe to be liable to confiscation or forfeiture under this Act or any other law for the time being in force relating to excise revenue and any document or other article which he has reason to believe may furnish evidence of the commission of an offence under this Act;
(b) detain and search any person whom he has reason to believe to be guilty of any offence against this Act or any other law for the time being in force relating to excise revenue, and if such person has any intoxicant, hemp, mhowra flowers, molasses or [other thing] in his possession, arrest him."
24 Section 129 of the Act has empowered the prohibition officer to investigate the offences. Section 129 of the Act reads as under:
Page 17 of 58HC-NIC Page 17 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT "129. Prohibition officers may be empowered to investigate offences. (1) The [State] Government may empower any Prohibition Officer to investigate offences under this Act.
(2) An officer empowered under subsection (1) shall in the conduct of such investigation exercise the powers conferred by the Code of Criminal Procedure, 1973, [2 of 1974], upon an officerincharge of a police station for the investigation of cognizable offences.
(3) Any Prohibition Officer; to whom such officer is subordinate may, during the course of the investigation, take over the investigation himself or direct any other Prohibition Officer duly empowered to conduct the same. The officer in conducting the investigation shall have the same powers under subsections (1) and (2) as if he were the Prohibition Officer appointed for the area or for the purpose of investigating the said offence.
(4) If the Prohibition Officer conducting the investigation is of opinion that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, or that the person arrested may be discharged with a warning, such officer shall release him on his executing a bond with or without sureties, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence and shall make a full report of the case to his official superior and be guided by the order which he shall receive on such report.
(5) The powers of any officer empowered under this section shall be subject to such other modifications or restrictions as the [c] [State] Government may deem fit."
25 Section 130 of the Act provides that the arrested persons and things seized are to be sent to the officer incharge of the police station. Section 130 of the Act reads as under:
"130. Arrested persons and things seized to be sent to officerin charge of police station. Every person arrested and thing seized by a Prohibition Officer under this Act, shall be sent to the officerincharge of the nearest Police Station [or to any other officer duly empowered under Section 129 if the Director in any particular case has directed such officer to conduct the investigation of the offence]."
26 Section 132 of the Act deals with the articles seized. It reads as under:
Page 18 of 58HC-NIC Page 18 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT "132. Articles seized. [When anything has been seized under the provisions of this Act by a Prohibition Officer exercising powers under Section 129 or by an officerincharge of a police station], or has been sent to him in accordance with the provisions of this Act, such officer, after such inquiry as may be, deemed necessary,
(a) if it appears that such thing is required as evidence in the case of any person arrested, shall forward it to the Magistrate to whom such person is forwarded or for his appearance before whom bail has been taken;
(b) if it appears that such thing is liable to confiscation but is not required as evidence as aforesaid, shall send it with a full report of the particulars of seizure to the Collector;
(c) if no offence appears to have been committed shall return it to the person from whose possession it was taken."
27 Let me now look into the main provision i.e. Section 98 of the Act. It is with regard to confiscation. It reads as under:
"98. Things liable to confiscation. (1) whenever any offence punishable under this Act has been committed,
(a) any intoxicant, hemp, mhowra flowers, molasses, materials, still, utensil, implement or apparatus in respect of which the offence has been committed,
(b) where in the case of an offence involving illegal possession, the offender has in his lawful possession any intoxicant, hemp, mhowra flowers or molasses other than those in respect of which an offence under this Act has been committed, the entire stock of such intoxicant, hemp, mhowra flowers or molasses,
(c) where, in the case of an offence of illegal import, export or transport, the offender has attempted to import, export or transport any intoxicant, hemp, mhowra flowers or molasses, in contravention of the provisions of this Act, rule, regulation or order or in breach of a condition of licence, permit, pass or authorisation, the whole quantity of such intoxicant, hemp, mhowra flowers or molasses which he has attempted to import, export, or transport,
(d) where in the case of an offence of illegal sale, the offender has in his lawful possession any intoxicant, hemp, mhowra flowers or molasses other Page 19 of 58 HC-NIC Page 19 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT than that in respect of which an offence has been committed, the whole of such other intoxicant, hemp, mhowra flowers or molasses, shall be confiscated by the order of the court.
(2) Any receptacle, package or covering in which any of the articles liable to confiscation under subsection (1) is found and the other contents of such receptacle, package or covering and the animals, carts, vessels or other conveyances used in carrying any such article shall likewise be liable to confiscation by the order of the Court [but it shall not be released on bond or surety till the final judgement of the Court where the quality of the seized liquor is exceeding the quantity as may be prescribed by the rules]."
28 Section 99 of the Act is with regard to return of things liable to confiscation to the bona fide owners. It reads under:
"99. Return of things liable to confiscation to bonafide owners. When during the trial of a case for an offence under this Act the Court decides that anything is liable to confiscation under the foregoing section, the Court may, after hearing the person, if any, claiming any right thereto and the evidence, if any, which he produces in support of his claim, order confiscation, or in the case of any article other than an intoxicant, hemp, mhowra flowers or molasses give the owner an option to pay fine as the Court deems fit in lieu of confiscation:
Provided that no animals, cart, vessel, vehicle or other conveyance shall be confiscated if the owner thereof satisfies the Court that he had exercised due care in preventing the commission of the offence."
29 Section 100 of the Act of the Act provides for a procedure in confiscation. Section 100 specifically deals with a situation in which the offence is committed, but the offender is not known or cannot be found. Section 100 of the Act reads as under:
"100. Procedure in confiscation. When an offence under this Act has been committed and the offender is not known or cannot be found or when anything liable to confiscation under this Act is found or seized, the [Director], Director or any other officer authorised by the [State] Page 20 of 58 HC-NIC Page 20 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT Government in this behalf may make an inquiry and if after such inquiry is satisfied that an offence has been committed, may order the thing found to be confiscated:
Provided that no such order shall be made before the expiry of one month from the date of seizure, or without hearing [the person, if any, claiming any right thereto] and the evidence, if any, which he produces in support of his claim."
30 At this stage, let me now look into Rule 9 of the Gujarat Prohibition (Liquor Samples and Determination of Quantity Seized Liquor) Rules, 2012. I may quote the entire Notification issued by the Home Department dated 20th August 2012 as under:
"HOME DEPARTMENT Notification Sachivalaya, Gandhinagar, 8th August, 2012.
GUJARAT PROHIBITION ACT, 1949 :
No. GG/20/2012/VDR/ 10200912061/E1:WHEREAS certain draft rules were published as required by sub section (3) of section 143 of the Gujarat Prohibition Act, 1949 (Bom. XXV of 1949) at pages No.461 to 464 of the Gujarat Government Gazette, Extra Ordinary, Part lVB, dated the 9"1 February, 2012 min the Government Notification, Home Department No.GG/07/2012/VDR/102009/206l/b1 dated the 6th February, 2012, inviting objections or suggestions from all persons likely to be affected thereby within a period of thirty days from the date of publication of the said notification in the Official Gazette.
AND WHEREAS, no objection or suggestion has been received by the Government from any person 111 respect to the aforesaid draft notification;
NOW THEREFORE, in exercise of the powers conferred by sub section (1) of Section 143 of the Gujarat Prohibition Act, 1949 (Bom. XXV of 1949), the Government of Gujarat hereby makes the following it, namely :Page 21 of 58
HC-NIC Page 21 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT
1. Short title and extent(1) These rules may be called the Gujarat Prohibition (Liquor Samples and Determination of Quantity Seized Liquor) Rules, 2012'.
(2) They shall extend to the whole of the State of Gujarat.
2. Definitions. (1) In these rules, unless the context otherwise, requires:
(a) 'Act' means the Gujarat Prohibition Act, 1949 (Born. XXV of 1949);
(b) 'Container' means a drum, cask, vat, jar or vessel or any other article which may contain liquor therein, other than branded bottles;
(C) 'Form' means the form appended to these rules;
(d) 'Sample' means a specimen of intoxicant taken for scientific Testing;
(e) 'Testing Officer" means the Chemical Examiner or Assistant Chemical Examiner or any other officer appointed under section 116C of the Act for testing of samples of alcohol.
(2) Words and expressions used in these rules but not defined shall have the same meaning respectively assigned to them in the Act.
3. Collection of Liquor Sample. (1) The samples of liquor shall be collected in the following manner, namely;
(a) The Prohibition Officer or the Police Officer shall take two samples of 200 ml. from a container 01' in Case of more than one container, from each such container containing liquor, in the presence of two witnesses (panchas);
(b) in the case of liquor contained in branded bottles, two bottles of each brand shall be taken batchwise, from the boxes which contain such bottles, in the presence of two witnesses (panchas) In case of changes in the brand or batch, two bottles of liquor of each such brand shall be taken separately, as sample (2) Out of two samples referred to in subrule (1), one sample shall be sent to the Testing Officer and the another sample shall be kept' in the custody of the officer who has seized the liquor, till the matter' is finally decided by the Court and thereafter the sample kept in the custody of the officer shall be destroyed in accordance with the procedure prescribed in this behalf.
Page 22 of 58HC-NIC Page 22 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT
4. Signature, slips and writing of CRN on Sample of Liquor. The Prohibition Officer or the Police Officer shall take signature of the witnesses (panchas) on labels of each such sample or bottle of seized liquor and on the slips to be affixed on the seals of each bottle and shall also write the Crime Register Number (CRN) of the case on labels of each such sample or bottle.
5. Sample be sent for Analysis. The Prohibition Officer or the Police Officer who has seized the liquor shall send the sample along with the advice in FormA, immediately without any loss of time to the Forensic Science Laboratory of the State for detailed analysis report.
6. Testing of Liquor. The Testing Officer shall carry out detailed analysis of the samples of the liquor sent under rule 5 without any delay. He shall take adequate steps and care and see that no tampering with the articles or the contents of the articles takes place.
7. Identity of Liquor Sample in the Court. The Prohibition Officer or the Police Officer who has seized the liquor shall prove the identity of the sample of liquor produced before the Conn, to be the same as was seized and also that the same sample was sent with seals intact to the Testing Officer with Form A.
8. Testing Report and Certificate of Liquor Sample. The Testing Officer shall, after carrying out the detailed analysis of the samples of the liquor sent under rule 5, prepare the detailed analysis report of the samples of the liquor carried out by him in Form B and shall issue the certificate to this effect in Form B. He shall send the certificate in original to the Prohibition Officer or the Police Officer concerned and retain a copy thereof for his record.
9. Seizure of vehicles when quantity more than ten liters. Where the quantity of liquor seized is mom than ten liters in respect of any offence punishable under the Act, the vehicle or conveyance carrying such liquor shall be liable to be confiscated in accordance with the provisions of subsection (2) of section 98 of the Act.
Explanation. For the purpose of these rules, vehicle or conveyance includes bicycle, motorcycle, scooter, auto rickshaw, loading rickshaw, chhakdo rickshaw, camel cart, bullock cart, horse cart, hand cart, tempo, Page 23 of 58 HC-NIC Page 23 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT tractor, tanker, car, jeep, bus, truck, ship, boat motorized or non motorized, raft, wherry, steamer, camel, bullock, horse, donkey and such other carriers which are not mentioned here."
31 Before adverting to the power of the Magistrate or the Court under the provisions of the Prohibition Act to pass an order for the interim custody of the Properties, like the vehicle seized for the commission of the offence, it is necessary to examine the true implications of the law in regard to such a question. Only in that background, the powers of any authority under a special law can be examined to deal with such a situation. It is rudimental that the Courts or the final authorities, in the adjudicatory process of administration of Criminal justice particularly in the light of Article 21 of the Constitution of India and generally the Criminal Courts by virtue of Section 4 of the Criminal Procedure Code, should try the offence. Section 4 of the Code of Criminal Procedure reads as follows:
"Section 4: Trial of offences under the Indian Penal Code and other laws: (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." (emphasis added) The simple meaning of this provision is that all the offences are to be investigated, enquired into or tried in accordance with the provisions of the Code of Criminal Procedure particularly the offences under the Indian Penal Code and specially by virtue of Subclause (2) applicable to the offences in other enactments also. However, Subclause (2) is so Page 24 of 58 HC-NIC Page 24 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT emphatic that this is subject to the provisions having been made in any other special law. The doctrine of exclusion of jurisdiction of the regular Courts to deal with a matter and to pass appropriate orders in such criminal proceedings is founded in the maxim 'Generalia Specialibus Non Derogant' (special law overrides general law). In other words, jurisdiction over the Courts to deal with the matter and pass orders in accordance with the provisions of the Code of Criminal Procedure should be presumed and to hold the contrary, there must be a specific bar in any special law in regard to certain matters under the Criminal Procedure Code and by necessary implication by making such similar provisions to deal with a matter in the special enactments. Such a view has been concluded by the Supreme Court in Bhim Sen vs. State of U.P. [AIR 1955 SC 435].
32 Section 5, Cr.P.C. deals with the saving clause and runs as follows:
"Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
33 Section 5 Cr.P.C. corresponds to section 1(2) of the Old Code, i.e,. 1898. A Division Bench of the Calcutta High Court, in the case of Naresh Chandra Das & Anr. Vs. Emperor, AIR 1942 Calcuttta 593 has explained the words in the absence of any specific provision to the contrary. I may quote the observations of the Division Bench;
"In our opinion the words "in the absence of any specific provision to the contrary" in Section 1(2), Criminal P.C., mean and contemplate a provision specific in affecting the special or local law. The section when analysed would stand thus: 1. Nothing herein contained shall affect any Page 25 of 58 HC-NIC Page 25 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT special or local law.... 2. The above prohibition applies in the absence of a specific provision to the contrarycontrary to this prohibition; or in other words, 2. The special or local law shall be affected if there is any provision specifically providing for such affecting.
It seems clear that this specific provision to the contrary need not be in the Criminal Procedure Code itself. It may be in the special or local law also. We cannot read the words "in the absence of a specific provision to the contrary" in Section 1(2), Criminal P.C., as referring to any possible contrariety between a specific provision in the present statute and a provision is a special statute."
34 The above section enacts that nothing contained in the Code shall, in the absence of a special provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The anatomy of this section is simple, yet subtle. Broadly speaking, there are three components to be separated. First, the Code generally governs the matters covered by it. Secondly, if a special or local law exists, covering the same area, this latter law will be saved and will prevail. The shortsentencing measures and remission schemes promulgated by the various States are the special and local laws and must override. Now comes the third component, which may be clinching. If there is a specific provision to the contrary in the Cr.P.C., then it will override the special or local law. Reading section 5 Cr.P.C., the conclusion is irresistible that if there exists any special law or if any special jurisdiction or power is conferred upon the court or if any form of procedure is prescribed in the special law, then, the provisions of the special law would override the provisions of the general law of procedure. This section in my view, vehemently provides that nothing contained in the Cr.P.C., in the absence of specific provision to the contrary, affect any special or local law for the time being in force.
Page 26 of 58HC-NIC Page 26 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT 35 Section 4 of the Code of Civil Procedure, reads as follows: "Section 4 Savings,(1) In the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force of any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force." (2) In particular and without prejudice to the generality of the proposition contained in subsec. (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a land holder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land form the produce of such land."
36 The meaning of the saving clause is that if anything in the Code is in conflict with anything in a special or local law, the Code shall not prevail to override the inconsistent provisions.
37 Section 41 of the Indian Penal Code deals with the special law. The special law is defined as a law applicable to a particular subject. In other words, the word "special law" refer to a law which is not applicable generally but which only applies to a particular or specified subject or class of subjects. The Gujarat Municipalities Act, 1963 is a special law, as well as a local law within the definition of sections 41 and 42, Penal Code and as such the application of section 64, IPC, cannot ordinarily be ruled out to the offences under the Gujarat Municipalities Act, but in view of the special provision in section 246(2) of that Act which provides a special mode for the recovery of fine imposed under sections 72, sub section (4) of section 149, subsection (4) of section 150, section 206, and subsection (4) of section 219 of the Act, which deals with the power of the Criminal Court, for awarding sentence of imprisonment in lieu of the fine, cannot apply to the cases where fine is imposed under the Gujarat Municipalities Act, 1963.
38 Section 42 of the Indian Penal Code deals with local law as a law, Page 27 of 58 HC-NIC Page 27 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT applicable only to a particular part of India. As already noticed, the Gujarat Municipalities Act, 1963 is a special law as well as a local law, within the definitions of Sec. 41 and 42 of the Penal Code.
39 Section 451 of the Code of Criminal Procedure deals with order for custody and disposal of property pending trial in certain cases. The said section reads as follows:
"451. Order for custody and disposal of property pending trial in certain cases,When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, or it to be sold or otherwise disposed of."
40 The power of the Court under Section 451, as regards custody of movable property, is not arbitrary. Even though, such power is discretionary, it has to be exercised in a judicial manner. Under this section, the Magistrate has no jurisdiction to investigate and decide the question of title or ownership of the rival claimants to the property. Only the question of possession of the property at the time the case started, has to be gone into and decided before passing an order for the custody under this section. Section 452 deals with order for disposal of property at conclusion of trial. Section 457 deals with procedure by police, upon seizure of property. This section reads as follows:
"457. Procedure by police upon seizure of property,(1) Whenever the seizure of property by any officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and Page 28 of 58 HC-NIC Page 28 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists and requiring any person who may have a claim thereto to appear before him and establish his claim within six months from the date of such proclamation."
41 The section 457 Cr.P.C. is general in its application and applies to all cases of seizures of property by any police officer and such seizure is reported to a Magistrate under the provisions of the Code but not produced before him and provides for the procedure to be followed by the Magistrate for the disposal of property.
42 In the case of Vinayak Gururao Inamdar and Others vs. Bhaskar Vasudeo Shirsat and Others, 1993 Cr.L.J. 3594, a Division Bench of the Bombay High Court, held that a Magistrate cannot in exercise of jurisdiction under Sec. of Cr.P.C., release property seized by the Customs Officers, under the Customs Act and also that Sec. 451, Cr.P.C. would also not apply since the property was not produced before the Court, during any "inquiry or trial" as envisaged under that provision. An order directing delivery of property by a Magistrate, when no criminal proceeding is pending before him, is plainly illegal. The Division Bench, in para5 of the judgment, held thus: "The Magistrate ought to have been mindful of the legal position that the Customs Act embodies elaborate provisions about dealing with seized articles including the confiscation and these special provisions are independent of the provisions of Cr.P.C. and protected by Sec. 5, Cr.P.C. Cumulative effect of Sec. 124, 125 and 110(2) of the Customs Act is that the Magistrate has no jurisdiction to make orders with relation to goods seized and liable to confiscate under the Act, in any case before the launching of the criminal proceedings."
Page 29 of 58HC-NIC Page 29 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT 43 The Supreme Court, in the case of State of Karnataka vs. K. Krishnan, 2007 (7) SCC 80, was considering a case of a forest offence, under the Karnataka Forest Act, 1963. In this case, the Supreme Court has observed that the provisions of the Act should be strictly complied with and generally, the seized forest produce and the vehicle, boat, tools etc., used in commission forest offence should not be released and that even if court is inclined to release the same, the authorised officer must specify reasons therefor and must insist on furnishing of bank guarantee as the minimum condition. In the said case, the forest produce was transported in violation of the provisions of the Act. The vehicle used in connection with the transportation, along with the forest produce, was seized. The vehicle was released by the authorised officer, subject to certain conditions, including furnishing of a bank guarantee. A petition under Section 482, Cr.P.C. for quashing the order of the authorised officer and the unconditional release of the vehicle, was made. The High Court modified the condition regarding bank guarantee and instead, directed to furnish two solvent sureties to the extent of Rs. 1,50,000/ each, for the purpose of getting interim custody of the vehicle. The Supreme Court held that the High Court had adopted a casual approach and its order was contrary to law and the casual approach in respect of offences relating to forests, was deprecated.
44 I shall now consider certain provisions of the Essential Commodities Act, 1955. In this context. Section 6A deals with the confiscation of foodgrains, edible oilseeds and edible oils. Section 6B deals with issue of show cause notice before confiscation of food grains, etc. Section 6E deals with the bar of jurisdiction in certain cases. Section 6E has been substituted to provide that except the Collector or State Government, all other authorities, judicial or otherwise, would be debarred from making any order with regard to the possession, delivery, Page 30 of 58 HC-NIC Page 30 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT disposal or distribution of any essential commodity, seized in pursuance of an order made under Section 3. Thus, a Magistrate will have no jurisdiction to grant relief against seizure under Section 457, Cr.P.C. Section 6A makes the necessary provision for the confiscation of essential commodities seized in pursuance of an order made under Sec. 3 in relation thereto the Collector of the district of the PresidencyTown, in which such commodity is seized, may order confiscation, if he is satisfied that there has been a contravention of such an order. But, no order of confiscation shall be made under this Sec, if the seized essential commodity has been produced by the producer, without prejudice to any action, which may be taken under any other provision of this Act. Section 6A of the Act provides the procedure to be adopted by the Collector, before passing order for confiscation, which enacts that after issuing of notice, an opportunity has to be given to the aggrieved party, for contesting the same. The Collector, after giving him a hearing, has to decide the objection and pass an order either confiscating the property or refusing to confiscate the property.
45 In the case of Shambhu Dayal Agarwala vs. State of West Bengal and another, 1990 (3) SCC 549, the Supreme Court held that whenever any essential commodity is seized, pending confiscation under Section 6 A, the Collector has no power to order release of the commodity in favour of the owner. Having regard to the scheme of the Act, the object and purpose of the statute and the mischief it seeks to guard, the Supreme Court held that the word "release" in Section 6E, is used in the limited sense of release for sale etc., so that the same becomes available to the consumer public. It was further held:
"No unqualified and unrestricted power has been conferred on the Collector of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution Page 31 of 58 HC-NIC Page 31 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT in the acquittal of the offender. Such a view would render clause (b) of Sec. 7(1) totally nugatory and would completely defeat the purpose and object of the Act. The view that the Act itself contemplates a situation which would render Sec. 7(1) (b) otiose where the essential commodity is disposed of by the Collector under Sec. 6 A(2) is misconceived. Sec. 6A does not empower the Collector to give an option to pay, in lieu of confiscation of essential commodity, a fine not exceeding the marketvalue of the commodity on the date of seizure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essential commodity. Only a limited power of sale of the commodity in the manner prescribed by Sec. 6A (2) is granted. The power conferred by Sec. 6A(2) to sell the essential commodity has to be exercised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity."
46 The sum total of the aforesaid discussion is that if a Special Act embodies elaborate provisions about dealing with the seized articles including the confiscation and such special provisions are independent of the provisions of the Cr.P.C. and protected by Section 5 of the Cr. P.C., then the provision of sections 451 or 457 Cr.P.C., as the case may be, would not apply in cases of seizure and confiscation.
47 In the aforesaid context, let me look into a Division Bench decision of the Madras High Court in the case of David vs. Shakthivel, Inspector of PolicecumStation House Officer [2010(1) MadLJ (Cri) 929]. Honourable Justice R. Banumathi (as Her Ladyship then was) speaking for the Bench, considered Section 14(4) of the Tamil Nadu Prohibition Act visavis the powers of the Magistrate under Section 451 of the Cr.P.C. Section 14 of the Tamil Nadu Prohibition Act reads as under:
"14.Confiscation how ordered. (1) When the offender is convicted or when the person charged with an offence against this Act is acquitted, but the Court decides that anything is liable to confiscation, such confiscation shall be ordered by the Court.
(2) Where, during the trial of a case an offence against this Act, the Court decides that anything is liable to confiscation, the Court shall order the Page 32 of 58 HC-NIC Page 32 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT confiscation:
Provided that no animal, vessel, cart, or other vehicle shall be confiscated under subsection (1), or subsection (2), if the Court after hearing the owner of such animal, vessel, cart or other vehicle and any person claiming any right thereto, is satisfied that the owner and such person had exercised due care in the prevention of the omission of such an offence).
(3) When an offence against this Act has been committed but the offender is not known, or cannot be found, or when anything liable to confiscation under this Act and not in the possession of any person cannot be satisfactorily accounted for, the case shall be inquired into and determined by the Collector or other Prohibition Officerincharge of the district or by any other officer authorised by the State Government in that behalf who shall order such confiscation.
Provided that no such order shall be made until the expiration of fifteen days from the date of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they produce in support of their claims).
(4) Notwithstanding anything contained in subsections (1) to (3), the Collector or other Prohibition Officer Incharge of the district or any other officer authorised by the State Government in that behalf is satisfied that an offence has been committed against this Act and whether or not a prosecution is instituted for such offence, he may, without prejudice to any other punishment to which the offender is liable under this Act, order confiscation of any animal, vessel, cart, or other vehicle used in the commission of such offence:"
The question which was considered by the Division Bench is as under:
"Whether wide power of the Executive under Section 14(4) of TNP Act transgresses into the power of the Court under Sections 451 or 457 Cr.P.C. In case of overlapping, powers of Court with Executive the extent of exercise of discretion by the Court is yet another point failing for our consideration."Page 33 of 58
HC-NIC Page 33 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT The Court proceeded to answer the question as under:
"(16) Section 451 Cr.P.C. enables the Court to pass orders for custody or disposal of property during enquiry or trial. Section 452 Cr.P.C. comes into operation on conclusion of enquiry or trial. Section 457 Cr.P.C. is a general provision applicable to all cases where seizure of vehicle is reported to a Magistrate and vehicle is not produced before a Criminal Court.
Sections 451 and 457 Cr.P.C. somewhat overlap. Section 457 Cr.P.C. reads as under:
(17) Section 457 Cr.P.C. deals generally with all cases where seizure of property is reported by the policeofficer to the Magistrate and vehicle is not produced before Criminal Court. The Magistrate can act under this Court only when the seizure of the property is reported to him. He is entitled to do one of three things; (a) he may pass an order regarding the disposal of the property; or (b) deliver it to the person entitled to its possession subject to conditions, if any, imposed; or (c) in his absence pass an order for its custody and production.
(18) Section 14(1) of TNP Act deals with powers of Court to pass an order of confiscation at the conclusion of the trial whether the case ends in conviction or acquittal. Section 14(1) of TNP Act is akin to Section 452 Cr.P.C. Under Section 14(2) of TNP Act, Court is empowered to pass an order of confiscation during the trial or a case for an offence under Tamil Nadu Prohibition Act. Powers of Court under Section 14(2) of TNP Act is akin to Section 451 Cr.P.C.
(19) Section 14(4) of TNP Act starts with non obstante clause vesting with power of Executive / District Collector or other Prohibition incharge of the District or any other officer authorised by the State Government, pass orders of confiscation of vehicle involved in the commission of offence against Tamil Nadu Prohibition Act notwithstanding whether prosecution is instituted or not. Main question falling for consideration is when confiscation proceedings are initiated under Section 14(4) of TNP Act, whether it takes away jurisdiction of the Court to exercise powers under Central enactment viz., under Sections 451 or 457 Cr.P.C.
(21) Learned Advocate General submitted that when the vehicle is seized which is involved in a prohibition offence, power of Court and Executive to order confiscation of vehicle involved is overlapping. Code of Criminal Procedure is Central enactment made by virtue of entry to List III of 7th Schedule to the Constitution. Learned Advocate General fairly submitted that since power of Executive and power of Court in dealing with the vehicle and passing orders of confiscation is overlapping to certain extent, Section 14(4) of TNP Act, a State enactment cannot take away exercise of jurisdiction of Court under Sections 451 or 457 Cr.P.C. But the learned Page 34 of 58 HC-NIC Page 34 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT Advocate General hastened to submit that exercise of power by the Court must be with extreme care and caution, keeping in view the object and spirit of Section 14(4) of the Act which is both punitive and deterrent.
(22) As rightly submitted by the learned Advocate General, Section 14(4) of the Act does not take away the jurisdiction of the Court and exercise of power under Sections 451 or 457 Cr.P.C. But discretion of Court has to be exercised judiciously and exercised with due care and caution. Where seizure of vehicle involved in an offence of prohibition reported to the Magistrate, exercise of discretion and ordering of interim custody under Sections 451 or 457 Cr.P.C. is not automatic. Notwithstanding the involvement of the vehicle in the commission of prohibition offence, if there is automatic exercise of power by the Court, Section 14(4) of the Act would become a dead letter. In our view, order of confiscation of a vehicle involved in the commission of offence under Section 14(4) of TNP Act is not only punitive but also deterrent. While so, when the vehicle is involved in the commission of a prohibition offence, exercise of discretion by the Court with care and caution would serve various purposes. While before passing any order in respect of the vehicle involved in the commission of prohibition offence, Court should keep in view the spirit of Section 14(4) of the Act and the benevolent objects of Tamil Nadu Prohibition Act."
48 In the case before the Division Bench of the Madras High Court, the question was that if the confiscation proceedings are initiated under Section 14(4) of the T.N.P. Act whether it would take away the jurisdiction of the Court to exercise the powers under the Central enactment i.e. Sections 451 or 457 of the Cr.P.C. It appears that the learned Advocate General of the State expressed his views before the Court as regards the repugnancy. It was argued by the learned Advocate General that the power of the Court and Executive to order confiscation of vehicle involved was overlapping to a certain extent. The learned Advocate General pointed out to the Court that the Code of Criminal Procedure is a Central enactment made by virtue of Entry to List III of Seventh Schedule to the Constitution and as the power of executive and power of Court in dealing with the vehicle and passing orders of confiscation was overlapping, Section 14(4) of the T.N.P. Act being a Page 35 of 58 HC-NIC Page 35 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT State enactment could not be said to take away the exercise of jurisdiction of the Court under Sections 451 or 457 of the Cr.P.C. Thus, the Division Bench went to a certain extent into the issue of repugnancy, as pointed out by the Advocate General of the State, and ultimately, took the view that the powers of the Court to release the vehicle under Sections 451 or 457 of the Cr.P.C. were saved. However, the Court should not order release of the vehicle on mere asking, but should keep in view the spirit of Section 14(4) of the T.N.P. Act. I have made myself very clear that sitting as a Single Judge, I cannot go into such issues i.e. of repugnancy or the constitutional validity of Section 98(2) of the Act, 1949. I should read the statute as it is.
49 In State of West Bengal vs. Subodh Gopal Bose [1954 SCR 587 : (AIR 1954 SC 92)], it was held that the Statement of Objects and Reasons could be referred to for ascertaining the conditions prevailing at the time which actuated to sponsor the Bill to introduce the same and the extent of urgency and the evil which was sought to be remedied. The Preamble of an Act is also an aid in construing the provisions of the Act. The House of Lords in AttorneyGeneral vs. Prince Ernest Augustus of Hanover, 1957 AC 436, held that when there is a Preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described.
50 The scheme of Section 98 would show that the things mentioned in clauses (a) to (d) are straightway to be confiscated. But in respect of any receptacle, package or covering in which any of the articles liable to confiscation under SubSection (1) are found and the animals, carts, vessels, or other conveyances used in carrying any such articles they are not to be confiscated straightway but they are liable to confiscation.
Page 36 of 58HC-NIC Page 36 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT There is understandable distinction between the things which must be straightway confiscated as provided by Section 98(1) and the things which are liable to confiscation. This should be in the very nature of things. Things like intoxicant, hemp, mhowra flowers, molasses, materials, still utensil, implement or apparatus in respect of which offence appears to have been committed under the Bombay Prohibition Act should straightway be confiscated because their possession per se is prohibited. They must be confiscated because they cannot be returned otherwise to the person to whom it is returned would be committing the same offence over again. They are articles, the possession of which is per se prohibited in view of the provisions contained in the Bombay Prohibition Act. But vessels, conveyances, carts and animals used for transport of such prohibited articles are not per se prohibited and therefore, they cannot be straightway confiscated. They are liable to confiscation in view of the use made of such things. Section 99 provides the procedure to be followed by the Court in respect of the things liable to confiscation before they are confiscated. Section 99 provides as under :
"99. When during the trial of a case for an offence under this Act the court decides that anything is liable to confiscation under the foregoing section, the Court may after hearing the person, if any, claiming any right thereto and the evidence if any, which he produces in support of his claim order confiscation or in the case of any article other than an intoxicant, hemp, mhowra flowers or molasses give the owner an option to pay fine as the court deems fit in lieu of confiscation :
Provided that no animal, cart, vehicle or other conveyance shall be confiscated if the owner thereof satisfies the court that he had exercised due care in preventing the commission of the offence."
It appears that the articles which are liable to confiscation can only be confiscated after hearing the person claiming any right thereto and the evidence if any which he produces in support of his claim. The Page 37 of 58 HC-NIC Page 37 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT proviso to Section99 makes it abundantly clear that vessel or vehicle or other conveyance cannot be confiscated if the owner satisfies the Court that he had exercised due care in preventing the commission of the offence. Therefore, when anything liable to confiscation is to be confiscated the Court has to hear the person claiming any right thereto. Such a person has a right to lead evidence in support of his claim. He has also an option to pay fine in lieu of confiscation. In respect of the vehicle or conveyance the same cannot be confiscated if the owner shows that he had taken sufficient care to prevent the commission of the offence. He can do so by leading evidence. Therefore, before the Court proceeds to confiscate a vehicle, vessel or a conveyance, it must give an opportunity to the owner thereof to show whether he had used sufficient care to prevent the commission of the offence. In fact before an order of confiscation is passed an inquiry as contemplated by Section 99 would be made. Such an inquiry is to be made in respect of the articles liable to confiscation and not those which are required to be confiscated as a necessary corollary as provided in Section 98(1).
The order of confiscation is not a consequential order which must follow the findings of fact in the case and a duty is cast on the Court to confiscate anything in respect of which the offence appears to have been committed. One should not ignore distinction made by the Legislature between Sections 98(1) and 98(2) of the Bombay Prohibition Act. Section 98(1) provides for confiscation of certain things in respect of which an offence appears to have been committed. In respect of those things such as intoxicant, hemp, mhowra flowers, molasses, materials still utensil, implement or apparatus in respect of which an offence appears to have been committed they are straightway to be confiscated. As soon as the Court comes to the conclusion that in respect of the articles set out above the offence appears to have been committed, under Page 38 of 58 HC-NIC Page 38 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT the Bombay Prohibition Act, the Court has no option but to confiscate those articles. SubSection (2) makes a distinct departure in respect of these things or articles which are not to be confiscated straightway but which are liable to confiscation and the things which are liable to confiscation have to be dealt with as provided by Section 99. Therefore, in respect of the things which are not to be confiscated but which are liable to the confiscation he Court has to follow the procedure prescribed in Section99 before the order of confiscation in respect of such things could be passed. It cannot, therefore, be said that the order of confiscation is a mere consequential order following the findings of fact recorded by the Court. It may be that a person may be held guilty of possession of liquor imported in the motor track and yet the truck need not be confiscated if it is found that it belongs to some other person who had exercised due care for preventing the commission of the offence. To take a simple illustration, a person in transport business was approached with a request that the truck is to be hired for transporting vegetables and while loading vegetables a few bottles of liquor were also loaded. If a search of the truck is taken and bottles are recovered the person who hired the truck and transported vegetables would be in possession of the bottles and would be liable for possession of liquor. But in such circumstances, it is unconceivable that the motor truck could also be straightway confiscated. Therefore, before the motor truck could be confiscated the Court must make an inquiry as envisaged by Section 99 and give an opportunity to the owner of the motor truck to show that he had exercised due care for preventing the commission of the offence and if the Court is satisfied that he had exercised due care, the truck cannot be confiscated. Therefore, it cannot be said that in all cases the order of confiscation is a consequential order or that there is a duty cast on the Court to confiscate every article coming before the Court trying the offences under the Bombay Prohibition Act.
Page 39 of 58HC-NIC Page 39 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT 51 I am unable to agree with the submission of Mr. A.D. Shah, the learned Amicus Curiae that the Court should read into Section 98(2) of the Act, 1949, the power of the Magistrate to release the vehicle in exercise of power under Sections 451 or 457 of the Cr.P.C., as the case may be, otherwise Section 99 of the Cr.P.C. would be rendered redundant. In my view, the entire purpose of the legislation would be defeated if any other literal construction was to be adopted. I am in agreement with the submission of Mr. Raju, the learned Amicus Curiae that the words "during the trial of a case" in Section 99 of the Act, should not be construed as at any stage of the trial. In my view, Mr. Raju, the learned Amicus Curiae, is right in submitting that Section 99 of the Act comes into play when the Court decides to pass an appropriate order as regards the disposal of the muddamal property under Section 452 of the Code of Criminal Procedure. Section 452 contemplates disposal of property at the conclusion of the trial and says that when an inquiry or trial for any Criminal Court is concluded, the Court may make such order as it thinks fit for its disposal. This Section 452 refers to a stage when the trial is concluded. The word "inquiry" in Section 452 should be construed as one necessary for the disposal of the property i.e. confiscation, etc. The word "concluded" in Section 452 means, in my opinion, "concluded after a full hearing with a final judgment for determination of the case against the accused". For, clearly an order under Section 452 can be made only on the basis of the evidence recorded in the inquiry or trial, and in accordance with the findings, the Magistrate may arrive at with material. Therefore, Section 99 comes into play on conclusion of the trial i.e. when the Court decides to confiscate the vehicle. At that stage, the Court may conduct a formal inquiry and in Page 40 of 58 HC-NIC Page 40 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT such an inquiry, an opportunity has to be given to the person claiming the possession of the vehicle. At that stage, the proviso to Section 99 comes into play. In accordance with the proviso, the owner may adduce necessary evidence to satisfy the Court that he had exercised due care in preventing the commission of the offence and although the accused persons may be held guilty and convicted, yet the vehicle involved in the commission of the offence may not be confiscated. There is one more reason to take this view. In Section 99, the words are "give the owner an option to pay fine as the Court deems fit in lieu of confiscation". The question of payment of fine would come only on conclusion of the trial and not at an earlier stage.
52 The question whether a provision is directory or mandatory "arises out of a phenomenon, judicially noticed, but otherwise disputed, that sometimes the legislature does not say what it means." When the legislature employs the expression 'shall' it must normally be construed to mean 'shall' and not 'may'. Indeed as Cotton L. J, once observed the word 'may' never can mean 'must', so long as the English retains its meaning Re: Baker (1890) 44 Ch D 262, at p.240. "The question whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. Meaning and intention of the legislature must alone govern and these are to be ascertained, not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it one way or the other". [See: Crawford on Construction of Statutes, 1940 Edn. Art. 261].
53 The Supreme Court in the case of Pratap Sing vs. Krishna Gupta reported in AIR 1956 SC 140 observed as under:
Page 41 of 58HC-NIC Page 41 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT "we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which Judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines".
(Underlining supplied)
54 In a task such as this viz., the Courts cannot safely go further than that in each case, it must look to the subjectmatter, consider the importance of the provision that has been disregarded and the relevance of that provision to the general objective intended to be secured by the Act. The language is not always a sure index. The provision may be directory in form, but mandatory in substance. Some provisions in a statute may be mandatory some others merely directory. The difference arises where the legislature has used a language of apparent compulsive force, but has not prescribed the consequence of its disregard. No rule of general application is possible to be enunciated either. But some tests which the Courts have evolved have worked effectively and with reasonable assurance of success.
55 Furthermore in the Presidential Election Case reported in AIR 1974 SC 1682, the Hon'ble Chief Justice of the Apex Court speaking on behalf of a sevenJudge Bench had specifically held as follows (Para
13) :
"In determining the question whether a provision is mandatory or directory, the subjectmatter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law Page 42 of 58 HC-NIC Page 42 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT itself, taken as a whole'."
56 From the aforesaid settled principles of law as well as from a plethora of other judgments of the Supreme Court, it is quite apparent that under certain circumstances, "shall" can be considered as "may", but ordinarily, the Courts should consider it mandatory unless that interpretation leads to some absurd inconvenient consequences or is at variance with the intent of the Legislature to be collected from other part of the Act or is bound to cause failure of justice.
57 In the case of M. Pentiah vs. Muddala Veeramallappa [AIR 1961 SC 1107], the Supreme Court had held, quoting with approval a passage from Maxwell that if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of legislation I should avoid a construction which would reduce the legislation to futility. To the same effect is the decision of the Supreme Court in the case of SirajulHaq Khan vs. The Sunni Central Board of Waqf, U.P. [AIR 1959 SC 198] in which it has been stressed that it is a wellsettled rule of construction that the Courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective. No exception can be taken to the principle laid down by the Supreme Court in the aforesaid two cases. The crux of the matter in the present case is as to what was the object sought to be achieved. The object sought to be achieved is to create deterrent and implement the prohibition policy in the State effectively.
The object of all interpretations is to discover the intention of the framers of the statutes and that intention must be deduced from the language used. The intention of Legislature is not to be speculated on as pointed out by Lord Watson in Salomon vs. A. Salomon and Co. Ltd.
Page 43 of 58HC-NIC Page 43 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT (1897) AC 22, 38]:
"'Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication."
Casus omissus cannot be created or supplied. A statute shall not be extended to meet a case for which provision has clearly not been made. As laid down by the Judicial Committee of the Privy Council in Crawford vs. Spooner [(1846) 8 Moore PC 1]:
"We cannot aid the Legislature's defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there."
58 The amendment in Section 98(2) of the Act, 1949, in my view, is regulatory in nature and whether it can be regarded as ultra vires any of the Articles of the Constitution of India is for a Division Bench to look into as and when the validity is challenged.
59 I have already made myself clear that I do not have the jurisdiction to go into the issue of repugnancy, or otherwise, the constitutional validity of Section 98(2) of the Act, 1949.
60 I take notice of one somewhat identical provision in the Delhi Excise Act (10 of 2010) by which the general provisions of Section 451 Page 44 of 58 HC-NIC Page 44 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT of the Cr.P.C. with regard to the custody and disposal of the property has been curtailed. The Supreme Court in the case of State (NCT of Delhi) vs. Narender [AIR 2014 SC (Supp.) 1864] considered Section 61 of the Delhi Excise Act. In the said case, a car was seized containing huge quantity of liquor. During the course of the investigation, the respondent therein claiming to be the owner of the vehicle filed an application for its release on security before the Metropolitan Magistrate. The Magistrate rejected the application on the ground that he had no power to release the vehicle seized in connection with the offence under the Delhi Excise Act. The respondent therein, thereafter, filed an application before the High Court under Section 482 of the Cr.P.C. assailing the order passed by the Metropolitan Magistrate. The High Court ordered the release of the vehicle. The State, being dissatisfied with the order passed by the High Court, challenged the same before the Supreme Court. Before the Supreme Court, it was argued by the State that Section 61 of the Act puts an embargo on the jurisdiction of Courts. The Supreme Court took notice of Section 61 of the Delhi Excise Act in para 9 of the judgment. Para 9 reads as under:
"Section 61 of the Act puts an embargo on jurisdiction of courts, the same reads as follows :
"61. Bar of jurisdiction in confiscation. Whenever any intoxicant, material, still, utensil, implement, apparatus or any receptacle, package, vessel, animal, cart, or other conveyance used in committing any offence, is seized or detained under this Act, no court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, have jurisdiction to make any order with regard to such property."
In para 10 of the judgment, the Supreme Court observed as under:
Page 45 of 58HC-NIC Page 45 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT "According to this section, notwithstanding anything contrary contained in any other law for the time being in force, no court shall have jurisdiction to make any order with regard to the property used in committing any offence and seized under the Act."
While allowing the appeal of the State, the Supreme Court observed in para 11 as under:
"It is relevant here to state that in the present case, the High Court, while releasing the vehicle on security has exercised its power under Section 451 of the Code. True it is that where any property is produced by an officer before a criminal court during an inquiry or trial under this section, the court may make any direction as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, as the case may be. At the conclusion of the inquiry or trial, the court may also, under Section 452 of the Code, make an order for the disposal of the property produced before it and make such other direction as it may think necessary. Further, where the property is not produced before a criminal court in an inquiry or trial, the Magistrate is empowered under Section 457 of the Code to make such order as it thinks fit. In our opinion, the general provision of Section 451 of the Code with regard to the custody and disposal of the property or for that matter by destruction, confiscation or delivery to any person entitled to possession thereof under Section 452 of the Code or that of Section 457 authorising a Magistrate to make an order for disposal of property, if seized by an officer and not produced before a criminal court during an inquiry or trial, however, has to yield where a statute makes a special provision with regard to its confiscation and disposal. We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation or release to its rightful owner. The requirement of production of seized property before the Deputy Commissioner under Section 59(1) of the Act is, notwithstanding anything contained in any other law, and, so also is the power of confiscation. Not only this, notwithstanding anything to the contrary contained in any other law for the time being in force, no court, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in commission of any offence under the Act. In the present case, the Legislature has used a nonobstante clause not only in Section 59 but also in Section 61 of the Act. As is well settled, a nonobstante clause is a legislative device to give effect to the enacting part of the section in case of conflict over the provisions mentioned in the non obstante clause. Hence, Sections 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that Page 46 of 58 HC-NIC Page 46 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof...."
In para 13, the Supreme Court considered one of its own decisions in the case of Oma Ram vs. State of Rajasthan [(2008) 5 SCC 502] and observed as under:
"To put the record straight it is relevant here to state that the counsel for the respondent had not, and in our opinion rightly, challenged the vires of the provisions of the Act in view of the decision of this Court in the case of Oma Ram v. State of Rajasthan (2008) 5 SCC 502 : (AIR 2008 SC (Supp) 1844 : 2008 AIR SCW 3595), which upheld a somewhat similar provision existing in the Rajasthan Excise Act."
61 I may refer to the decision in the case of Oma Ram vs. State of Rajasthan and others [2008 AIR SCW 3595]. In the said case, the challenge before the High Court of Rajasthan was to the vires of certain provisions of the Rajasthan Excise Act, 1950. The prayer was to declare incorporation of Section 54(ka) and Subsections (4) to (9) in Section 69 of the Excise Act as ultra vires. Section 69(6) of the Act reads as under:
"69. What things are liable to confiscation ....
....
(6) Whenever any means of conveyance as referred to in clause (e) of sub section (1) is seized in connection with commission of an offence under this Act, the Excise Commissioner or any officer authorised in this behalf by the State Government shall have, and, notwithstanding anything contained in any law for the time being in force any court, tribunal or other authority shall not have jurisdiction to make order with regard to the possession, delivery, disposal, release of such means of conveyance."
It was argued before the Supreme Court that according to the Page 47 of 58 HC-NIC Page 47 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT provisions of Sections 451 to 457 of the Cr.P.C., the Criminal Court has the jurisdiction to release any property seized or recovered during any inquiry or trial. By the amendment, the powers of the Court for release of any property has been curtailed. The challenge to Section 54A and Section 69(6) with regard to above were made on the ground that they were unconstitutional, arbitrary, unreasonable and violative of Articles 14, 19, 20, 21 and 301 of the Constitution. It was submitted that the power conferred on the judicial Courts by virtue of Sections 451 to 457 of the Cr.P.C. had been curtailed or taken away, and indirectly, the power of revision of the Sessions Judge or the High Court and the inherent powers of the High Court under Section 482 of the Cr.P.C. had also been curtailed. I may quote para 6 of the judgment, which reads as under:
"In support of the appeals, it was submitted that as per the provisions of Sections 451 to 457 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C'), the criminal court has jurisdiction to release any property seized or recovered during any enquiry or trial. By the insertion of Section 54(A) of the Rajasthan Excise Amendment Ordinance, 2000 which was later on substituted by the Amendment Act along with Section 54A, Section 69 has also been amended and as per amended subsection (6) of Section 69 it has been provided that whenever any means of conveyance is seized in connection with commission of offence under the Act, the Excise Commissioner or any officer authorized in this behalf by the State Government shall have and notwithstanding anything contained in any law for the time being in force, any Court, Tribunal or other Authority shall not have jurisdiction to make order with regard to the possession, delivery, disposal or release of such conveyance. Grievance was that in view of the aforesaid provisions the criminal courts were not invoking jurisdiction and the power of the court has been taken away. Challenge to Section 54A and Section 69(6) were made on the ground that they are unconstitutional, arbitrary, unreasonable and violative of Articles 14, 19, 20, 21 and 301 of the Constitution. It was submitted that the powers conferred on judicial courts by virtue of Sections 451 to 457, Cr.P.C. has been curtailed or have been taken away and indirectly the power of revision of Sessions Judge or the High Court and inherent power of the High Court under Section 482, Cr.P.C. has been curtailed."Page 48 of 58
HC-NIC Page 48 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT Para 6 refers to the submissions canvassed on behalf of the petitioner. In para 7 of the judgment, the Supreme Court has noted the response of the learned counsel appearing for the State. Para 7 of the judgment reads as under;
"In response, learned counsel for the State made the reference to Sections 4,5, and 9, Cr.P.C. and Section 41 of the Indian Penal Code, 1860 (in short the 'IPC')."
In para 8, the Supreme Court considered the objects and reasons of the Rajasthan Excise Amendment Act, 2000. The Supreme Court, thereafter, considered Article 254 of the Constitution. In para 9, the Supreme Court noticed that the Amendment Act, 2000 had received assent of the Governor by which Section 54A was inserted and amendments were made in Section 69 of the existing provisions and Subsections (4) to (9) were inserted. In para 10, the Supreme Court quoted its own decision in the case of P.N. Krishna Lal and others vs. Government of Kerala and another [(1995) (suppl.) 2 SCC 187]. The Supreme Court in para 10 observed as under:
"In P. N. Krishna Lal and Ors. v. Govt. of Kerala and Anr.(1995 (Suppl.) 2 SCC 187) it was observed at para 12 as follows:
"12. The scheme of the Act and the Amendment Act is a consistent whole, regulating production, manufacture, possession, transport, purchase or sale of intoxicating liquors. The Amendment Act was enacted to prohibit mixing or permitting to mix methanol in arrack or intoxicating drug or failure to take reasonable precautions to prevent acts or omissions, of mixing methanol in arrack or intoxicating drug or to be in possession thereof with knowledge of its adulteration or to prevent deleterious effect on the health of the consumers to prevent grievous hurt to human beings or their death. As a part of it, the burden of proof of the ingredients of the offence being within the special knowledge of the accused has also been laid on the accused person. Therefore, though incidentally it trenches into some of the provisions of the Evidence Act, the Indian Penal Code and the Code, in its pith and sub stance, it is an integral scheme of the Act, which falls within Entry 8 read with Entries 64 Page 49 of 58 HC-NIC Page 49 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT and 65 of List II of the Seventh Schedule of the Constitution. Under Article 246(3), the State legislature was competent to enact the Amendment Act. Therefore, the assent of the President is not necessary. Even assuming that some of the provisions incidentally trespass into the field of operation of the Central provisions falling in the Concurrent List, which empower both Parliament and the State legislatures to enact the law, the assent given by the President made Sections 57A and 57B valid. The Gazette Notification of the Amendment Act has been placed before us which shows that the President has given his assent to the Amendment Act on 1121984. Therefore, by operation of proviso to clause (2) of Article 254, the Amendment Act prevails over the relevant provisions in the Indian Evidence Act, IPC and the Code in relation to the State of Kerala.""
In para 11, the Supreme Court stated that the decision of P.N. Krishna Lal (supra) referred to above was a complete answer to most of the submissions made by the appellants. In paras 15, 16 and 17, the Supreme Court observed as under:
"15. The amendments introduced, in our view, are regulatory in nature and cannot be regarded as violative of freedom guaranteed under Article 301 of the Constitution. In Jiluhhai Nanbhai Khachar and Ors. v. State of Gujarat and Anr (1995 Supp (1) SCC 596), after examining the principle of "Eminent Do main" it was held by this Court that Article 300A is not attracted and deprivation is in exercise of police power and said article enjoins that such deprivation should not be without sanction of law.
16. There are similar provisions in the Excise Acts of other States, for example the Tamil Nadu Excise Act, 1971, Karnataka Excise Act, 1965, Uttar Pradesh Excise Act, 1910 and the Andhra Pradesh Excise Act, 1968. The provisions are in Sections 4 and 14A of the Tamil Nadu Act, Sections 43A and 43B of the Karnataka Act, Section 72 of the Uttar Pradesh Act and Sections 46 and 46A of the Andhra Pradesh Excise Act.
17. Reference may also be made to Deputy Commissioner, Dakshina Kannada District v. Rudolph Fernandez [2000(3) SCC 306] and State of W.B. and Ors. v. Sujit Kumar Rana [2004 (4) SCC 129] while gauzing the validity of the impugned provisions."
62 In the last, it was submitted that this Court may exercise its inherent powers under Section 482 of the Cr.P.C. and order release of Page 50 of 58 HC-NIC Page 50 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT the vehicle on stringent terms and conditions. Section 482 of the Cr.P.C. reads as under:
"482. Saving of inherent powers of High Court Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
63 From a bare perusal of the aforementioned provision, it is manifest that the inherent powers of the High Court is saved only in a case where an order has been passed by the Criminal Court which is required to be set aside to secure the ends of justice or where the proceeding pending before a Court amounts to abuse of the process of Court. It is, therefore, evident that the power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a Court; which in the context of the Code of Criminal Procedure would mean "a Criminal Court" or where a power is exercised by the Court under the Code of Criminal Procedure. Once it is held that the Criminal Court had no power to order interim release of the seized vehicle in exercise of the powers under Sections 451 or 457 of the Cr.P.C., the question of the High Court exercising its jurisdiction under Section 482 of the Code would not arise.
64 The Supreme Court in the case of West Bengal and others vs. Sujit Kumar Rana [(2004) 4 SCC 129] has taken this view as contained in paras 32 to 46. Paras 32 to 46 read as under:
"32. The High Court cannot, thus, in such a situation exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. The said provision reads thus :
"482. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the Page 51 of 58 HC-NIC Page 51 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT High Court to make such orders as may be necessary to give effect to any order made under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
33. From a bare perusal of the aforementioned provision, it would be evident that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal Court which is required to be set aside to secure the ends of justice or where the proceeding pending before a Court amounts to abuse of the process of Court. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a Court; which in the context of Code of Criminal Procedure would mean 'a criminal Court' or whence a power is exercised by the Court under the Code of Criminal Procedure. Once it is held that the criminal Court had no power to deal with the property seized under the Act, the question of the High Court's exercising its jurisdiction under Section 482 of the Codeof Criminal Procedure would not arise.
34. The amendments carried out by the State of West Bengal by reason of Sections 59A to 59G in the Indian Forest Act provide for a complete Code. The validity or otherwise of the said provisions is not in question before us. An order of confiscation in respect of a property must be distinguished from an order of forfeiture thereof. Although the effect of both confiscation and forfeiture of a property may be the same, namely that the property would vest in the State but the nature of such order having regard to the statutory scheme must be held to be different. A proceeding for confiscation can be initiated irrespective of the fact that as to whether prosecution for commission of a forest offence has been lodged or not. A confiscation proceeding, therefore, is independent of a criminal proceeding. We may also notice that the State has been made liable to refund the amount which has been deposited pursuant to an auction held in respect of the confiscated property only in the event the order of confiscation is set aside or annulled under Section 59A(4)(b) thereof. No provision has been made in the statute unlike Section 6C of the Essential Commodities Act, 1955 to the effect that the confiscated property or the amount deposited in the treasury pursuant to the auction of the confiscated goods would be returned to the owner thereof in the event, the criminal trial ends in an acquittal.
35. This Court, in this case, is not concerned with the effect of acquittal visavis a confiscation proceeding. There may be a case where a judgment of acquittal has been rendered not on merit of the matter but by way of giving benefit of doubt or for certain reasons unrelated to the adjudication on merits as for example dropping of the proceeding as the prosecution witnesses did not turn up despite service of summons.
36. This Court in Divisional Forest Officer v. G.V. Sudhakar Rao Page 52 of 58 HC-NIC Page 52 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT [(1985) 4 SCC 573], we may note, however, approved the decision of a Division Bench of the Andhra Pradesh High Court in Mohd. Yaseen v. Forest Range Officer, Flyng Squad, Rayachoti, ((1980) 1 ALT 8) stating :
"14. We find that a later Division Bench consisting of Kondaiah, C. J. and Punnayya, J. in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti, (1980) 1 Andh LT 8 approved of the view expressed by Jeewan Reddy, J. in P. K. Mohammad's case. (supra), and held that the Act contemplates two procedures, one for confiscation of goods forming the subjectmatter of the offence by the Authorized Officer under subs. (2A) of S. 44 of the Act, and the other for trial of the person accused of the offence so committed under S. 20 or S. 29 of the Act. The learned Judges held that the Act provides for a special machinery for confiscation of illicitly felled timber or forest produce by the Authorized Officer under sub s. (2A) of S. 44 enacted in the general public interest to suppress the mischief of ruthless exploitation of Government forests by illicit felling and removal of teak and other valuable forest produce. They further held that merely because there was an acquittal of the accused in the trial before the Magistrate due to paucity of evidence or otherwise did not necessarily entail in nullifying the order of confiscation of the seized timber or forest produce by the Authorized Officer under subs. (2A) of S. 44 of the Act based on his satisfaction that a forest offence had been committed in respect thereof. We affirm the view expressed by Jeewan Reddy, J. in P. K. Mohammad's case and by Kondaiah, C. J. and Punnayya, J. in Mohd. Yaseen's case."
37. In State of West Bengal v. Gopal Sarkar, ((2002) 1 SCC 495) this Court followed Sudhakar Rao (supra) and on construction of sub section (3) of Section 59A held :
"On a fair reading of the provision it is clear that in a case where any timber or other forest produce which is the property of the State Government is produced under subsection (1) and an Authorised Officer is satisfied that a forest offence has been committed in respect of such property he may pass order of confiscation of the said property (forest produce) together with all tools, ropes, chains, boats, vehicles and cattle used in committing the offence. The power of confiscation is independent of any proceeding of prosecution for the forest offence committed ..........."(Emphasis supplied)
38. Yet again, in State of Karnataka v. K. A. Kunchindammed, ((2002) 9 SCC 90) this Court observed that even the expression 'sandalwood' as contained in the Karnataka Forest Act, 1963 would include 'sandalwood oil'. This Court in no uncertain terms held:
Page 53 of 58HC-NIC Page 53 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT "23. The Karnataka Forest Act is a special statute enacted for the purpose of preserving the forests and the forest produce in the State. The Scheme of the Act, as expressed in the Sections, is to vest power in the authorised officers of the Forest Department for proper implementation/enforcement of the statutory provisions and for enabling them to take effective steps for preserving the forests and forest produce. For this purpose certain powers including the power of seizure, confiscation and forfeiture of the forest produce illegally removed from the forests have been vested exclusively in them. The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the authorised officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under the Cr. P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the authorised officer under the Act and if he finds that such power is vested in the authorised officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.
24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case it is the authorised officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis."
39. We may notice that despite the fact that under the Karnataka Act, the criminal Court is not denuded of its power to pass an order releasing the property as would be evident in State of Karnataka vs. K. A. Kunchindammed [(2002) 9 SCC 90], this Court in Section Forester and another v. Mansur Ali Khan, (JT 2003 (10) SC 390), following the decision in State of Karnataka v. K. Krishnan, (JT 2000 (9) SC 356) Page 54 of 58 HC-NIC Page 54 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT held :
"6. While in regard to the power of the High Court to release the vehicle in a given set of facts cannot be disputed, this Court as noticed by the High Court itself has laid down that such power can be exercised for good reasons and in exceptional cases only. In the instant case, the only reason given by the High Court for the release of the vehicle is on the ground that same was in the custody of the officers for more than one year and there was no likelihood of immediate disposal of the pending case. This by itself, in our opinion would not be a ground for the release of the vehicle because this would be the case in almost all such cases involving forest offence. In exceptional cases the Act itself has made a provision for interim release of the vehicle on the existence of certain conditions mentioned therein. In the absence of such conditions being fulfilled, we do not think that the High Court as a matter of course could pass mechanical orders releasing such vehicles.
7. Taking into consideration the object of the Forest Act and other relevant considerations, this Court in the abovesaid case of State of Karnataka v. K. Krishnan (supra) while allowing the said appeal held :
"The Courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purpose of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a Court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come."
8. From the above dictum of this Court, we find when a vehicle is involved in a forest offence the same is not to be released to the offender or the claimant as a matter of routine till the culmination of the proceedings which may include confiscation of such vehicle."
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40. In Shambhu Dayal Agarwala v. State of West Bengal and another ((1990) 3 SCC 549), this Court interpreting subsection (2) of Section 6A of the Essential Commodities Act visavis Section 6E thereof, held that there could be no question of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in the acquittal of the offender. This Court observed that such a view would render clause (b) of Section 7(1) totally nugatory. It was opined :
"It seems to us that Section 6E is intended to serve a dual purpose, namely (i) to prevent interference by Courts, etc., and (ii) to effectuate the sale of the essential commodity under subsection (2) and the return of the animal, vehicle, etc., under the second proviso to subsection (1) of Section 6A. In that sense Section 6E is complementary in nature." (See also Deputy Commissioner, Dakshina Kannada District v. Rudolph Fernandes, (2000) 3 SCC 306).
41. In view of the aforementioned binding precedents, we are of the opinion that the High Court exceeded its jurisdiction in releasing the vehicles in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure.
42. In view of our findings aforementioned, the contention of the learned counsel that this Court may not exercise its jurisdiction under Article 136 of the Constitution of India having regard to the purported findings of the criminal Court, will have to be judged. As indicated hereinbefore, there exists a distinction between confiscation and conviction.
43. A confiscation envisages a civil liability whereas an order of forfeiture of the forestproduce must be preceded by a judgment of conviction. Although indisputably having regard to the phraseology used in sub section (2) of Section 59A, there cannot be any doubt whatsoever that commission of a forest offence is one of the requisite ingredients for passing an order of confiscation; but the question as to whether the order of acquittal has been passed on that ground and what weight should be attached thereto is a matter which, in our opinion, should not be gone into at this stage.
44. So far as the submission of Mr. Ghosh in Criminal Appeal No. 453 of 1997 is concerned, it appears, the District Judge while exercising his appellate power had set aside the order of confiscation on the ground that the notice issued to the respondent herein was invalid in law, leaving at the same time and directing also the Authorized Officer and Divisional Forest Officer, West Midnapore Division, to decide the matter afresh in accordance with law. Consequently, the right of the Authorized Officer is Page 56 of 58 HC-NIC Page 56 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT not foreclosed to claim for the respondent that no action can be taken further in this regard.
45. Yet again a valid proceeding for confiscation of the vehicle can be initiated only upon issuance of a proper notice and whereafter an order of confiscation can be passed in accordance with law.
46. The upshot of our aforementioned discussion is that once a confiscation proceeding is initiated the jurisdiction of the criminal Court in terms of Section 59G of the Act being barred, the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property. The High Court can exercise such a power only in exercise of its power of judicial review."
65 My final conclusion is that Section 98(2) of the Act, 1949 curtails the power of the Magistrate to order interim release of the seized vehicle under Sections 451 or 457 of the Cr.P.C., as the case may be. The Courts below will have no jurisdiction to order interim release pending the trial of the seized vehicle in connection with the offence under the Act, 1949, if the quantity of the liquor recovered exceeds 10 litres in quantity.
66 The Legislature in its wisdom has prescribed a methodology to deal with the prohibition offences, seizure, confiscation, release, etc. Once such a procedure is prescribed, the Courts have to examine the rights of the parties in accordance with the procedure so prescribed. I am unable to hold that the Magistrate and Revisional Court have committed any error in rejecting the applications preferred by the respective applicants under Sections 451 or 457 of the Cr.P.C. In view of the provisions of Section 98(2) of the Act, 1949, the general provisions laid down in Sunderbhai Ambalal Desai vs. State of Gujarat [JT (2002) 10 SC 80] cannot be pressed into service for release of vehicle from the Court of Magistrate.
67 In the result, all the applications fail and are hereby rejected.
Page 57 of 58HC-NIC Page 57 of 58 Created On Fri Dec 15 23:20:01 IST 2017 R/SCR.A/8521/2017 CAV JUDGMENT 68 I am grateful to Mr. A.D. Shah and Mr. S.V. Raju, the learned senior counsel for their invaluable assistance rendered to this Court as the Amicus Curiae. I am also grateful to Mr. Mitesh Amin, the learned Public Prosecutor, who took lot of pains in assisting this Court to decide the issue.
(J.B.PARDIWALA, J.) chandresh Page 58 of 58 HC-NIC Page 58 of 58 Created On Fri Dec 15 23:20:01 IST 2017