MUSTAFA versus STATE OF UTTAR PRADESH & ORS. on 20 August 2019

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[2019] 10 S.C.R. 754

SUPREME COURT REPORTS

[2019] 10 S.C.R.

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MUSTAFA

v.

STATE OF UTTAR PRADESH & ORS.

(Civil Appeal No. 6438 of 2019)

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AUGUST 20, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

United Provinces Excise Act, 1910 – ss. 60 and 72 –Jurisdiction of Collector to order confiscation of vehicle – A FIRwas registered for offences u/ss.60 & 72 of the Act and ss.420,C467, 468 and 471 of IPC in respect of seizure of 154 cartons ofillicit liquor, one 0.315 bore country made pistol with two 0.315bore live cartridges, by a team of Excise Department and the policeofficials – A notice was served upon the appellant by the DistrictMagistrate, who was also the Collector of the district to show causeDas to why the seized truck be not confiscated – Pursuant thereto,the District Magistrate passed an order of confiscation and auctionof vehicle – Aggrieved, appellant filed appeal before the DistrictJudge, which was dismissed – Challenge to the said order beforethe High Court was also unsuccessful – On appeal before the SupremeCourt, the appellant contended that since FIR was registered inErespect of transportation of illicit liquor, therefore, the Magistratewho is competent to conduct trial alone was competent to pass anorder of release of vehicle – It was further contended that it is oncompletion of the trial; the Magistarte would pass an order ofconfiscation of the vehicle – Thus, Collector had no jurisdiction toFpass an order of confiscation of the vehicle – Held: The confiscationof the vehicle found in illicit transportation of the liquor is an offencewhich can be investigated by an Excise officer as well as by a policeofficer – But, sub-section (2) of s.72 of the Act confers power uponthe collector to order confiscation of such thing or animal ‘whetheror not a prosecution for such offence has been instituted’ –GTherefore, the power of the Collector to confiscate the seized thingor animal is independent of prosecution – Also, the proviso to sub-section (2) of Section 72 of the Act gives an option to the owner topay such fine as the Collector thinks adequate not exceeding itsmarket value in lieu of its confiscation – It, thus, transpires that it is H

the Collector who has been conferred exclusive jurisdiction to orderconfiscation of a thing or animal – Further, the criminal court beforewhom the prosecution is lodged, will not have jurisdiction to releaseanything or animal whether interim or final as the Act in questionhas provisions contrary to the provisions contained in the Code ofCriminal Procedure – In view thereof, there is no error in the orderpassed by the High Court regarding the jurisdiction of the Collectorto order confiscation – However, matter remitted back to the HighCourt to exercise the power of judicial review over the order ofconfiscation passed by the Collector and affirmed by the DistrictJudge.

United Provinces Excise Act, 1910 – Code of CriminalProcedure, 1973 – Procedure of confiscation of vehicle – Held:The offences under the Act in terms of sub-section (2) of s. 4 of theCode are to be dealt with according to the provisions of the Codebut subject to the provisions of the Act, 1910 regulating the manneror place of investigating, inquiring into, trying or dealing with suchoffences – Since the procedure of confiscation of the vehicle isprescribed under the Act, 1910 it is the provision of the Act whichwill be applicable and not Chapter XXXIV of the Code – S. 5 of theCode saves special or local laws or any special jurisdiction or powerconferred, or any special form of procedure prescribed, by anyother law for the time being in force.

Disposing of the appeal, the Court

Conclusion

Disposing of the appeal, the Court

HELD: 1. The proviso to sub-section (2) of Section 72 ofthe United Provinces Excise Act, 1910 gives an option to theowner to pay such fine as the Collector thinks adequate notexceeding its market value in lieu of its confiscation. It, thus,transpires that it is the Collector who has been conferred exclusivejurisdiction to order confiscation of a thing or animal. TheCollector has been further empowered to impose fine notexceeding the market value of the thing on the date of seizure.Thus, the power of confiscation of a vehicle or a thing is absolutelyvested with the Collector except in certain circumstances, insteadof confiscation, the fine, not exceeding the market value, canalso be imposed but by the Collector alone. [Para 16] [768-D-E]

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A2. Sub-section (3) of Section 72 of the Act is exception tosub-section (2) wherein, on receiving report of seizure or oninspection of the seized things, including any animal, cart, vesselor other conveyance, which are subject to speedy wear and tearor natural decay or it is expedient in public interest to do so, theCollector may order such things or animal, except an intoxicant,Bto be sold by auction or otherwise. Therefore, in case any seizedthing is subject to speedy wear and tear or natural decay, theCollector is empowered to sell the same by public auction. Thepower to sell the thing or animal pending confiscation proceedingsis also contemplated if it is expedient in public interest to do so.CSuch provision empowers the Collector to order the sale of thevehicle or animal if he is satisfied that it is expedient in publicinterest even before an order of confiscation is passed by him.[Para 17] [768-F-G]

3. In terms of Section 4 of the Code of Criminal Procedure,D1973 trial of offences under IPC are to be investigated, inquiredinto, tried, and otherwise dealt with according to the provisionscontained in the Code. It further provides that all offences underany other law shall be investigated, inquired into, tried, andotherwise dealt with according to the same provisions, but subjectto any enactment for the time being in force regulating the mannerEor place of investigating, inquiring into, trying or otherwisedealing with such offences. The offences under the Act in termsof sub-section (2) of Section 4 of the Code are to be dealt withaccording to the provisions of the Code but subject to theprovisions of the Act regulating the manner or place ofFinvestigating, inquiring into, trying or dealing with such offences.Since the procedure of confiscation of the vehicle is prescribedunder the Act, it is the provision of the Act which will be applicableand not Chapter XXXIV of the Code. Section 5 of the Code savesspecial or local laws or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law forGthe time being in force. [Para 21] [769-G-H; 770-A-B]

4. The confiscation of a vehicle found in illicit transportationof the liquor is an offence which can be investigated by an ExciseOfficer as well as by a Police Officer. But the exclusive power of H

confiscation is vested with the Collector in terms of sub-section(2) of Section 72 of the Act. The sale proceeds of seized thingsor Animal which are subject to speedy wear and tear or naturaldecay, if sold, are required to be paid to the person found entitledthereto in terms of sub-sections (4) and (8) of Section 72 of theAct. [Para 26] [771-G-H; 772-A]

5. Sub-section (9) of Section 72 of the Act clarifies that noorder of confiscation made by the Collector shall prevent theinfliction of any punishment to which the person affected therebymay be liable under this Act. Thus, the punishment consequentto the prosecution is distinct from the order of confiscation passedby the Collector. [Para 27] [772-B]

6. After examining the provisions of the Act, this Courtholds that the Collector has exclusive jurisdiction to confiscatethe vehicles and in case the seized things are subject to speedywear and tear or natural decay, he may order to sell the same inthe manner prescribed under sub-section (3) of Section 72 of theAct. Sub-section (4) deals with distribution of sale proceeds whenthe seized thing is sold which is subject to wear and tear andnatural decay or when it is expedient in public interest to do so.Sub-section (8) of Section 72 of the Act deals with a situationwhere a prosecution of an offence is instituted in relation to whichconfiscation was ordered, the thing or animal shall be disposedof subject to the provisions of sub-section (4) of Section 72 of theAct in accordance with the order of the Court. The order of theCourt in sub-section (8) of Section 72 of the Act is after conclusionof the prosecution which is different from the seized things whichare subject to speedy wear and tear or natural decay ascontemplated by sub-section (3) of Section 72 of the Act.[Para 30] [772-H; 773-A-C]

Yogendra Kumar Jaiswal & Ors. v. State of Bihar &Ors. (2016) 3 SCC 183 : [2015] 14 SCR 1037 ; State(NCT of Delhi) v. Narender (2014) 13 SCC 100 :[2014] 1 SCR 109 ; State of Karnataka v. K. A.Kunchindammed (2002) 9 SCC 90 : [2002] 3 SCR 162– relied on.

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AState of Madhya Pradesh & Ors. v. Madhukar Rao(2008) 14 SCC 624 : [2008] 1 SCR 413 – heldinapplicable.

State of Madhya Pradesh v. Uday Singh AIR 2019 SC1597 ; State of Madhya Pradesh and Others v. KalloBBai (2017) 14 SCC 502 ; Divisional Forest Officer andAnother v. G. V. Sudhakar Rao and Others (1985) 4

SCC 573 : [1985] 3 Suppl. SCR 680 – referred to.

Case Law Reference

From the Judgment and Order dated 30.10.2017 of the HighECourt of Judicature at Allahabad in Civil Misc. Writ Petition No. 6728 of2017.

Ms. Preetika Dwivedi, Pranav Krishna, Advs. for the Appellant.

Tanmaya Agarwal, Shwetank Sailakwal, Yashashvi Virendra,Wrick Chatterjee, Nipun Goel, Advs. for the Respondents.F

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. Leave granted.

2. The owner of seized truck is in appeal aggrieved against anorder passed by the High Court of Judicature at Allahabad on OctoberG30, 2017, whereby the order passed by the Collector on 12.11.2016 andby the District Judge on 3.8.2017 confiscating the Vehicle for violationof Sections 60 and 72 of the United Provinces Excise Act, 1910[1],remained unsuccessful.

1 for short, ‘Act’H

3. An FIR was lodged on November 17, 2015 for the offencesunder Sections 60 and 72 of the Act and Sections 420, 467, 468 and 471of the Indian Penal Code, 1860[2] in respect of seizure of 154 cartons ofillicit liquor, one .315 bore country made pistol with two .315 bore livecartridges, by a team of Excise Department and the Police Officials.The investigation was taken up by Mr. Satyaveer Singh, Sub-Inspector.

4. On December 17, 2015, a notice was served upon the appellantby the District Magistrate, who is also the Collector of the District toshow cause as to why the seized truck be not confiscated. The showcause notice in respect of the Santro Car meant for Nisar Ahmed son ofNazir was issued as to why the car be not confiscated.

5. On an application filed by Nisar Ahmed, the Chief JudicialMagistrate, Muzaffarnagar on March 15, 2016 passed an order of releaseof Santro Car.

6. The appellant filed objections before the District Magistrate onSeptember 23, 2016 in response to the show cause notice served on himwherein the appellant sought release of the Vehicle as it is sole means ofhis livelihood and that he will suffer financial loss. In pursuance of suchshow cause notice, the District Magistrate passed an order of confiscationand auction of both vehicles, owned by Nisar Ahmed and the Appellant,and the sale proceeds be deposited in Government treasury. However,the appellant was given an option in terms of Section 72 of the Act topay Rs.4,50,000/- as market value of the truck. Nisar was given anoption to pay Rs.1,20,000/- to seek release of the car.

7. The appellant filed an appeal before the learned District Judge,a judicial authority appointed by the State Government, which wasdismissed on August 3, 2017. Further, challenge to the said order remainedunsuccessful before the High Court vide the order impugned in the presentappeal.

8. The High Court held that in terms of Section 5 of the CriminalProcedure Code, 1973[3], the Act is special and local Act to deal with theproperties seized under the Act, therefore, the provisions contained inthe Code with regard to disposal of property can be used only to theextent they are not inconsistent with Section 72 of the Act. The High 2 for short, ‘IPC’

3 for short, ‘Code’

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ACourt relied upon an order passed by this Court in State (NCT of Delhi)v. Narender[4].

9. Ms. Preetika Dwivedi, learned counsel for the appellant hasvehemently argued that since FIR has been registered in respect oftransportation of illicit liquor, therefore, the Magistrate who is competentBto conduct trial alone is competent to pass an order of release of vehicle.It is on completion of the trial; the Magistrate will pass an order ofconfiscation of the vehicle. Thus, it is argued that the Collector has nojurisdiction to pass an order of confiscation of the vehicle. Reliance isplaced upon judgment in State of Madhya Pradesh & Ors. v. MadhukarRao[5]. It is also argued that judgment in Narender is not applicable toCthe facts of the present case, as in the aforesaid case, the jurisdiction ofall courts was specifically excluded but that is not the situation in thepresent case.

10. On the other hand, Mr. Tanmaya Agarwal, learned counselfor the respondents argued that confiscation of a vehicle is an independentDproceeding, independent of prosecution of the offences under the IPC.The confiscation of the vehicle engaged in transportation of illicit liquorexclusively falls within the jurisdiction of the Collector in terms of thevarious provisions of the Act. Learned counsel relied upon judgment inYogendra Kumar Jaiswal & Ors. v. State of Bihar & Ors.[6] as also inEThe State of Madhya Pradesh v. Uday Singh[7].

11. Before we consider respective arguments of the learned counselfor the parties, some of the provisions from the Act would be necessaryto reproduce to appreciate the arguments. Chapter IX of the Act conferspower on the authorised officers of the Excise Department and theFcompetent Police Officers to investigate into the offences punishableunder the Act. Section 50 of the Act confers power of arrest, seizureand detention on the specified Excise and Police Officers whereasChapter X deals with offences and penalties which can be imposed forthe violation of the provisions of the Act. Section 72 of the Act dealswith the things which are liable for confiscation. The relevant provisionsGread as under: -

“49. Powers of certain officers to investigate into offences4 (2014) 13 SCC 1005 (2008) 14 SCC 6246 (2016) 3 SCC 183H7 AIR 2019 SC 1597

punishable under this Act. - (1) A police officer not below therank of Sub-Inspector and an officer of the Excise Departmentnot below such rank as the State Government may prescribe,may investigate into any offence punishable under this Actcommitted within the limits of the area in which such officerexercises jurisdiction.

(2) Any such officer may exercise the same powers in respect ofsuch investigation as an officer in charge of a police station mayexercise in a cognizable case under the provisions of Chapter XIIof the Code of Criminal Procedure, 1973, and if speciallyempowered in that behalf by the State Government, such officermay, without reference to a Magistrate, and for reasons to berecorded by him in writing, stop further proceedings against anyperson concerned or supposed to be concerned in any offencepunishable under this Act into which he has investigated.

50. Power of arrest, seizure and detention. - Any officer ofthe excise, police, salt, opium or land revenue department not belowsuch rank and subject to such restrictions as the State Governmentmay prescribe, and any other person duly empowered in this behalf,may arrest without warrant any person found committing anoffence punishable under Section 60, Section 62, Section 63 orSection 65; and may seize and detain any intoxicant or other articlewhich he has reason to believe to be liable to confiscation underthis Act or other law for the time being in force relating to exciserevenue; and may detain and search any person upon whom, andany vessel, vehicle, animal, package, receptacle or covering in orupon which he may have reasonable cause to suspect any sucharticle to be.

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70. Cognizance of offence. - (1) No Magistrate shall takecognizance- (a) of an offence punishable under Section 60, Section 63, Section64-A, Section 65 except on his own knowledge or suspicionor on the complaint or report of an Excise Officer; or (b) of an offence punishable under Section 64, Section 66, Section67 or Section 68 except on the complaint or report to the A

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Collector or an Excise Officer authorised by him by a generalor special order in that behalf.

(2) Except with the special sanction of the State Government nomagistrate shall take cognizance of any offence punishable underthis Act, unless the prosecution is instituted within a year after thedate on which the offence is alleged to have been committed.

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72. What things are liable to confiscation. - (1) Wheneveran offence punishable under this Act has been committed- (a) every intoxicant in respect of which such offence has beencommitted; (b) every still, utensil, implement or apparatus and all materialsby means of which such offence has been committed;

(c) every intoxicant lawfully imported, transported, manufactured,held in possession or sold along with or in addition to anyintoxicant liable to confiscation under clause (a); (d) every receptacle, package and covering in which anyintoxicant as aforesaid or any materials, still, utensil, implementor apparatus is or are found, together with the other contents(if any) of such receptacle or package; (e) every animal, cart, vessel or other conveyance used in carryingsuch receptacle or package shall be liable to confiscation.

(2) Where anything or animal is seized under any provision of thisAct and the Collector is satisfied for reasons to be recorded thatan offence has been committed due to which such thing or animalhas become liable to confiscation under sub-section (1), he mayorder confiscation of such thing or animal “whether or not aprosecution for such offence has been instituted”:

Provided that in the case of anything (except an intoxicant) oranimal referred to in sub-section (1), the owner thereof shall begiven an option to pay in lieu of its confiscation such fine as theCollector thinks adequate not exceeding its market value on thedate of its seizure.

(3) Where the Collector on receiving report of seizure or on inspection of the seized things, including any animal, cart, vesselor other conveyance, is of the opinion that “any such things oranimal is subject to speedy wear and tear or natural decay or it isotherwise expedient in the public interest so to do”, he may ordersuch things (except an intoxicant) or animal to be sold at the marketprice by auction or otherwise.

(4) Where any such things or animals is sold as aforesaid, and- (a)no order of confiscation is ultimately passed or maintainedby the Collector under sub-section (2) or on review undersub-section (6); or (b)an order passed on appeal under sub-section (7) so requires;or

(c) in the case of a prosecution being instituted for the offencein respect of which the thing or the animal is seized, “theorder of the court so requires”; the sale proceeds after deducting the expenses of the saleshall be paid to the person found entitled thereto.

(5) (a) No order of confiscation under this section shall be madeunless the owner thereof or the person from whom it is seized isgiven-

(i) a notice in writing informing him of the grounds on which suchconfiscation is proposed;

(ii) an opportunity of making a representation in writing withinsuch reasonable time as may be specified in the notice; and

(iii) a reasonable opportunity of being heard in the matter.

(b) Without prejudice to the provisions of clause (a), no orderconfiscating any animal, cart, vessel, or other conveyance shallbe made if the owner thereof proves to the satisfaction of theCollector that it was used in carrying the contraband goods withoutthe knowledge or connivance of the owner, his agent, if any, andthe person in charge of the animal, cart, vessel or other conveyanceand that each of them had taken all reasonable and necessaryprecautions against such use.

(c) Where on an application in that behalf being made to the A

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Collector within one month from any order of confiscation madeunder sub-section (2), or as the case may be, after issuing noticeon his own motion within one month from the order under thesub-section refusing confiscation to the owner of the thing or animalseized or to the person from whose possession it was seized, toshow cause why the order should not be reviewed, and after givinghim a reasonable opportunity of being heard, the Collector issatisfied that the order suffers from a mistake apparent on theface of the record including any mistake of law, he may pass suchorder on review as he thinks fit.

(6) Where on an application in that behalf being made to Collectorwithin one month from any order of confiscation made under sub-section (2), or as the case may be, after issuing notice on his ownmotion within one month from the order under the sub-sectionrefusing confiscation to the owner of the thing or animal seized orto the person from whose possession it was seized to show causewhy the order should not be reviewed, and after giving him areasonable opportunity of being heard, the Collector is satisfiedthat the order suffers from the mistake apparent on the face ofthe record including any mistake of law, he may pass such orderon review as he thinks fit.

(7) Any person aggrieved by an order of the confiscation undersubsection (2) or sub-section (6) may, within one month from thedate of the communication to him of such order, appeal to suchjudicial authority as the State Government may appoint in thisbehalf and the judicial authority shall, after giving an opportunityto the appellant to be heard, pass such order as it may think fit,confirming, modifying or annulling the order appealed against.

(8) Where a prosecution is instituted for the offence in relation towhich such confiscation was ordered the thing or animal “shall-subject to the provisions of subsection (4) be disposed of in”accordance with the order of the Court.

(9) No order of confiscation made by the Collector under thissection shall prevent the infliction of any punishment to which theperson affected thereby may be liable under this Act.”

(emphasis supplied)

12. The argument of learned counsel for the appellant is basedupon the expression “order of the court so requires” appearing in Section72(4)(c) of the Act. Reliance is also placed on the language used in sub-section (8) of Section 72 of the Act contemplating that where aprosecution is instituted for an offence in relation to which suchconfiscation was ordered, the thing or animal shall be disposed of inaccordance with the order of the court subject to the provisions of sub-section (4). However, we do not find any merit in the arguments raised.

13. Under the Act, an Officer of the Excise Department not belowthe rank as the State Government may prescribe has been granted thepower to investigate; to arrest and detain any intoxicant or other articlewhich he has reason to believe to be liable to confiscation under the Act.Therefore, the power of an Excise Officer is in addition to powerconferred on the Police Officer to investigate, to seize articles and vehiclesinvolved in the commission of crime. In terms of Section 70 of the Act,no Magistrate can take cognizance except on his own knowledge orsuspicion or on the complaint or report of the Excise Officer. Thecognizance can also be taken on the complaint or report to the Collectoror an Excise Officer authorised by him by general or special order. Sub-section (2) of Section 70 of the Act categorically puts an embargo thatthe Magistrate cannot take cognizance without special sanction of theState Government and unless the prosecution is instituted within a year.

14. Section 72(1) of the Act confers power of confiscation ofanimal, cart, vessel or other conveyance used by means of which anoffence has been committed. Sub-section (2) of Section 72 of the Actconfers power upon the Collector to order confiscation of such thing oranimal “whether or not a prosecution for such offence has beeninstituted”. Therefore, the power of the Collector to confiscate the seizedthing or animal is independent of prosecution. This Court in YogendraKumar Jaiswal was dealing with the confiscation of property under theOrissa Special Courts Act, 2006 and the Bihar Special Courts Act, 2009.It was held that such confiscation is independent of result of prosecutionunder the Prevention of Corruption Act, 1988. The Court held as under:

“146. In the case at hand, the entire proceeding is meant toarrive at the conclusion whether on the basis of the applicationpreferred by the Public Prosecutor and the material brought onrecord, the whole or any other money or some of the property in A

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question has been acquired illegally and further any money orproperty or both have been acquired by the means of the offence.After arriving at the said conclusion, the order of confiscation ispassed. The order of confiscation is subject to appeal under Section17 of the Orissa Act. That apart, it is provided under Section 19where an order of confiscation made under Section 15 is modifiedor annulled by the High Court in appeal or where the personaffected is acquitted by the Special Court, the money or propertyor both shall be returned to the person affected. Thus, it is basicallya confiscation which is interim in nature. Therefore, it is not apunishment as envisaged in law and hence, it is difficult to acceptthe submission that it is a pre-trial punishment and, accordingly,we repel the said submission.

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149. We have already held that confiscation is not a punishmentand hence, Article 20(1) is not violated. The learned counsel forthe State would lay stress on the decision in State ofA.P. v. Gandhi [State of A.P. v. Gandhi, (2013) 5 SCC 111: (2013)2 SCC (Cri) 884]. In that case, the issue that arose forconsideration was: when the disciplinary proceeding was initiatedone type of punishment was imposable and when the punishmentwas imposed due to amendment of rule, a different punishment,which was a greater one, was imposed. The High Court opinedthat the punishment imposed under the amended rule amountedto imposition of two major penalties which was not there in theold rule. Dealing with the issue the Court referred to the rule thatdealt with major penalties and the rule-making power. Referencewas made to the decision in Pyare Lal Sharma v. J&K IndustriesLtd. [Pyare Lal Sharma v. J&K Industries Ltd., (1989) 3 SCC448 : 1989 SCC (L&S) 484] wherein it has been stated that noone can be penalised on the ground of a conduct which was notpenal on the date it was committed. Thereafter, the two-JudgeBench referred to the authority in K. Satwant Singh v. State ofPunjab [K. Satwant Singh v. State of Punjab, AIR 1960 SC266 : 1960 Cri LJ 410] wherein it has been held thus: (Gandhicase [State of A.P. v. Gandhi, (2013) 5 SCC 111 : (2013) 2 SCC(Cri) 884] , SCC pp. 133-34, para 46)

“46. … ‘28. … In the present case a sentence of imprisonmentwas, in fact, imposed and the total of fines imposed, whetherdescribed as ‘ordinary’ or ‘compulsory’, was not less than theamount of money procured by the appellant by means of hisoffence. Under Section 420 of the Penal Code an unlimitedamount of fine could be imposed. Article 20(1) of theConstitution is in two parts. The first part prohibits a convictionof any person for any offence except for violation of law inforce at the time of the commission of the act charged as anoffence. The latter part of the article prohibited the imposingof a penalty greater than that which might have been inflictedunder the law in force at the time of the commission of theoffence. The offence with which the appellant had beencharged was cheating punishable under Section 420 of thePenal Code which was certainly a law in force at the time ofthe commission of the offence. The sentence of imprisonmentwhich was imposed upon the appellant was certainly not greaterthan that permitted by Section 420. The sentence of fine alsowas not greater than that which might have been inflicted underthe law which had been in force at the time of the commissionof the offence, as a fine unlimited in extent could be imposedunder the section.’” (K. Satwant Singh case [K. SatwantSingh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ410] , AIR p. 275, para 28)”

15. Recently, this Court in Uday Singh referred to earlier judgmentsof this Court in State of Madhya Pradesh and Others v. Kallo Bai[8]and Divisional Forest Officer and Another v. G. V. Sudhakar Raoand Others[9] to approve the argument that criminal proceedings are distinctfrom confiscation proceedings. The Court held as under:

“22. In 2017, a similar view has been taken by another two judgeBench of this Court in Kallo Bai (supra) while construing theprovisions of the Madhya Pradesh Van Upaj (Vyapar Viniyam)Adhiniyam, 1969. By virtue of the amendments made tothe Adhiniyam, Sections 15-A to 15-D were introduced to providefor confiscation proceedings in line with the provisions containedin the Forest Act as amended in relation to the State of Madhya 8 (2017) 14 SCC 502

9 (1985) 4 SCC 573

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APradesh. Relying on the earlier decisions of this Court including GVSudhakar Rao (supra), Justice NV Ramana, speaking for thetwo judge Bench held:

“23. Criminal prosecution is distinct from confiscationproceedings. The two proceedings are different and parallel,Beach having a distinct purpose. The object of confiscationproceeding is to enable speedy and effective adjudication withregard to confiscation of the produce and the means used forcommitting the offence while the object of the prosecution isto punish the offender. The scheme of the Adhiniyam prescribesan independent procedure for confiscation. The intention ofCprescribing separate proceedings is to provide a deterrentmechanism and to stop further misuse of the vehicle.”

16. The proviso to sub-section (2) of Section 72 of the Act givesan option to the owner to pay such fine as the Collector thinks adequatenot exceeding its market value in lieu of its confiscation. It, thus, transpiresDthat it is the Collector who has been conferred exclusive jurisdiction toorder confiscation of a thing or animal. The Collector has been furtherempowered to impose fine not exceeding the market value of the thingon the date of seizure. Thus, the power of confiscation of a vehicle or athing is absolutely vested with the Collector except in certainEcircumstances, instead of confiscation, the fine, not exceeding the marketvalue, can also be imposed but by the Collector alone.

17. Sub-section (3) of Section 72 of the Act is exception to sub-section (2) wherein, on receiving report of seizure or on inspection ofthe seized things, including any animal, cart, vessel or other conveyance,Fwhich are subject to speedy wear and tear or natural decay or it isexpedient in public interest to do so, the Collector may order such thingsor animal, except an intoxicant, to be sold by auction or otherwise.Therefore, in case any seized thing is subject to speedy wear and tear ornatural decay, the Collector is empowered to sell the same by publicauction. The power to sell the thing or animal pending confiscationGproceedings is also contemplated if it is expedient in public interest to doso. Such provision empowers the Collector to order the sale of the vehicleor animal if he is satisfied that it is expedient in public interest evenbefore an order of confiscation is passed by him.

18. The distribution of sale proceeds after the thing or animal issold, is contemplated by sub-section (4) of Section 72 of the Act. It dealswith a situation when no order of confiscation is ultimately passed ormaintained by the Collector or an order passed on appeal under sub-section (7) so requires. Similar power is conferred to distribute the saleproceeds in terms of the order of the Court in case of a prosecutioninstituted for the offence in respect of thing or animal seized. Thus, sub-section (4) deals with the disposal of sale proceeds of the seized thing orAnimal in terms of sub-section (3) of Section 72 of the Act. In otherwords, the sale conducted by auction or otherwise in terms of sub-section(3) is complete but the distribution of proceeds of sale alone is to bedealt with in the manner prescribed in sub-section (4) of Section 72 ofthe Act including an order of the Court dealing with prosecution institutedfor the offence.

19. Sub-section (5) of Section 72 of the Act deals with theprocedure and the limitations on the power of the Collector to sell theseized thing including any animal, cart, vessel or other conveyance interms of sub-section (3) of Section 72 of the Act. Sub-section (6) ofSection 72 of the Act confers power of review on the Collector of anorder passed under sub-section (2).

20. Sub-section (7) of Section 72 of the Act confers a right ofappeal to a judicial authority, as the State Government may appoint, againstan order of confiscation under sub-section (2) or sub-section (6) of Section72 of the Act. In other words, an order of confiscation, other than inrespect of seized things which are subject to speedy wear and tear ornatural decay falling in sub-section (3) of Section 72 of the Act, is subjectto appeal to the judicial authority. No appeal is provided in respect of anorder passed under sub-section (3) of Section 72 of the Act in respect ofseized things or animal which are subject to speedy wear and tear ornatural decay or otherwise expedient in the public interest.

21. We find that in terms of Section 4 of the Code, trial of offencesunder IPC are to be investigated, inquired into, tried, and otherwise dealtwith according to the provisions contained in the Code. It further providesthat all offences under any other law shall be investigated, inquired into,tried, and otherwise dealt with according to the same provisions, butsubject to any enactment for the time being in force regulating the manneror place of investigating, inquiring into, trying or otherwise dealing withsuch offences. The offences under the Act in terms of sub-section (2)

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Aof Section 4 of the Code are to be dealt with according to the provisionsof the Code but subject to the provisions of the Act regulating the manneror place of investigating, inquiring into, trying or dealing with suchoffences. Since the procedure of confiscation of the vehicle is prescribedunder the Act, it is the provision of the Act which will be applicable andnot Chapter XXXIV of the Code. Section 5 of the Code saves specialBor local laws or any special jurisdiction or power conferred, or any specialform of procedure prescribed, by any other law for the time being inforce.

22. However, where a prosecution is instituted for an offence inrelation to which confiscation was ordered, the things or animals are toCbe disposed of in accordance with the order of the Court subject toprovisions of sub-section (4) of Section 72 of the Act. The order passedby the Court where a prosecution is instituted for the offence, in termsof sub-section (8) of Section 72 of the Act, is subject to provisions ofsub-section (4) of Section 72 of the Act. Thus, the provision again dealsDwith distribution of the sale proceeds after confiscation on conclusion ofprosecution.

23. The power of release of the property produced before anycriminal court whether interim or final in terms of Sections 451, 452 or457 of the Code will not be available to court except the order in respectEof distribution of sale proceeds. Therefore, the power under Sections451, 452 or 457 of the Code available to criminal court or Magistrate isinconsistent with the provisions contained in the Act regarding disposalof the property not only in respect of pending trial but also after theconclusion of the trial.

F24. The argument raised that the judgment in Narender is notapplicable to the present case cannot be accepted as the criminal courtbefore whom the prosecution is lodged, will not have jurisdiction to releaseanything or animal whether interim or final as the Act in question hasprovisions contrary to the provisions contained in the Code. This Courtin Narender relied upon the judgment in State of Karnataka v. K. A.GKunchindammed[10]and held as under:

“13. In our opinion, the general provision of Section 451 of theCode with regard to the custody and disposal of the property orfor that matter by destruction, confiscation or delivery to any person H10 (2002) 9 SCC 90

entitled to possession thereof under Section 452 of the Code orthat of Section 457 authorising a Magistrate to make an order fordisposal of property, if seized by an officer and not produced beforea criminal court during an inquiry or trial, however, has to yieldwhere a statute makes a special provision with regard to itsconfiscation and disposal.

14. We have referred to the scheme of the Act and from that it isevident that the vehicle seized has to be produced before theDeputy Commissioner, who in turn has been conferred with thepower of its confiscation or release to its rightful owner. Therequirement of production of seized property before the DeputyCommissioner under Section 59(1) of the Act is, notwithstandinganything contained in any other law, and, so also is the power ofconfiscation. Not only this, notwithstanding anything to the contrarycontained in any other law for the time being in force, no court, interms of Section 61 of the Act, has jurisdiction to make any orderwith regard to the property used in commission of any offenceunder the Act.

15. In the present case, the legislature has used a non obstanteclause not only in Section 59 but also in Section 61 of the Act. Asis well settled, a non obstante clause is a legislative device to giveeffect to the enacting part of the section in case of conflict overthe provisions mentioned in the non obstante clause. Hence,Sections 451, 452 and 457 of the Code must yield to the provisionsof the Act and there is no escape from the conclusion that theMagistrate or for that matter the High Court, while dealing withthe case of seizure of vehicle under the Act, has any power topass an order dealing with the interim custody of the vehicle onsecurity or its release thereof.”

25. Though, Section 61 of the Delhi Excise Act, 2009 bars thejurisdiction of all Courts but, even in the absence of similar provisions inthe Act, the principle laid down is applicable in the present case as theAct is inconsistent with the provisions of the Code.

26. The confiscation of a vehicle found in illicit transportation ofthe liquor is an offence which can be investigated by an Excise Officeras well as by a Police Officer. But the exclusive power of confiscationis vested with the Collector in terms of sub-section (2) of Section 72 of A

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Athe Act. The sale proceeds of seized things or Animal which are subjectto speedy wear and tear or natural decay, if sold, are required to be paidto the person found entitled thereto in terms of sub-sections (4) and (8)of Section 72 of the Act.

27. Sub-section (9) of Section 72 of the Act clarifies that no orderBof confiscation made by the Collector shall prevent the infliction of anypunishment to which the person affected thereby may be liable underthis Act. Thus, the punishment consequent to the prosecution is distinctfrom the order of confiscation passed by the Collector.

28. In Madhukar Rao’s case, the provisions of the Code andCthat of the Wild Life (Protection) Act, 1972 were examined. The Courtfound that the use of a vehicle in the commission of an offence underthe Act, without anything else would bar its interim release appears tobe quite unreasonable. The Court held that the provisions of Section 50of the Wild Life (Protection) Act, 1972 and the amendments madethereunder do not in any way affect the Magistrate’s power to make anDorder of interim release of the vehicle under Section 451 of the Code.The Court held as under:

“16. We are unable to accept the submissions. To contend thatthe use of a vehicle in the commission of an offence under theAct, without anything else would bar its interim release appearsEto us to be quite unreasonable. There may be a case where avehicle was undeniably used for commission of an offence underthe Act but the vehicle’s owner is in a position to show that it wasused for committing the offence only after it was stolen from hispossession. In that situation, we are unable to see why the vehicleFshould not be released in the owner’s favour during the pendencyof the trial.”

29. We find that sub-section (3) of Section 72 of the Act conferspower on the Collector for release of the vehicle if it is consideredexpedient in public interest apart from the fact, when anything or animalGis subject to speedy wear and tear or natural decay. Therefore, the basisof the order in Madhukar Rao are not applicable in the case in hand.

30. After examining the provisions of the Act, we hold that theCollector has exclusive jurisdiction to confiscate the vehicles and in casethe seized things are subject to speedy wear and tear or natural decay, H

he may order to sell the same in the manner prescribed under sub-section(3) of Section 72 of the Act. Sub-section (4) deals with distribution ofsale proceeds when the seized thing is sold which is subject to wear andtear and natural decay or when it is expedient in public interest to do so.Sub-section (8) of Section 72 of the Act deals with a situation where aprosecution of an offence is instituted in relation to which confiscationwas ordered, the thing or animal shall be disposed of subject to theprovisions of sub-section (4) of Section 72 of the Act in accordance withthe order of the Court. The order of the Court in sub-section (8) ofSection 72 of the Act is after conclusion of the prosecution which isdifferent from the seized things which are subject to speedy wear andtear or natural decay as contemplated by sub-section (3) of Section 72of the Act.

31. In view of the above, we do not find any error in the orderpassed by the High Court which may warrant interference in the presentappeal. Since the High Court has decided the matter only on the questionof jurisdiction of the Collector to order confiscation, the matter is remittedback to the High Court to exercise power of judicial review over theorder of confiscation passed by the Collector and as affirmed by theDistrict Judge. The appeal is disposed of accordingly.

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Ankit Gyan

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