CASE NO.: Appeal (civil) 905 of 2002 PETITIONER: Oma Ram RESPONDENT: State of Rajasthan and Ors DATE OF JUDGMENT: 21/04/2008 BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 905 of 2002
With
(CIVIL APPEAL NO.291 OF 2004, CIVIL APPEAL NO.3575 OF
2002, CIVIL APPEAL NO.4562 of 2002 and CIVIL APPEAL
NO.906 of 2002)
Dr. ARIJTI PASAYAT, J.
1. In all these appeals challenge is to the judgment of the
Rajasthan High Court at Jodhpur dismissing the writ petitions
filed under Articles 226 and 227 of the Constitution of India,
1950 (in short the ‘Constitution’). Challenge in the writ
petitions was to the vires of certain provision of the Rajasthan
Excise Act, 1950 (in short the ‘Act’). Essentially the prayers
were as follows:
“(a) appropriate writ, order or direction,
incorporation of Sec. 54(ka) and Sub-Sections (4) to
(9) in Section 69 of the Excise Act may be declared
ultra-vires and be struck down;
(b) by an appropriate writ, order or direction,
amendment in the Excise Act, 1950 by
incorporation of Section 9B may be declared ultra-
vires and be struck down;
(c) by a further appropriate, writ, order or direction
impugned order dated 16.5.2000, passed by
respondent No. 2 may be declared invalid and may
be quashed and set aside;
(d) Pending decision, if any further order is made or
action is taken prejudicial to the interest of the
petitioner, the same may also be quashed and set
aside.”
2. The contentions raised on behalf of the appellant in the
writ petitions challenging the vires of the provisions were
founded on the following allegations:
1. The provisions of the amendment are
contrary to Article 254 of the Constitution
and without the assent of the President
those are ultra vires;
2. the amended provisions are repugnant to
the provisions of the Code of Criminal
Procedure and the Code of Civil Procedure;
3. The amended provisions confer unguided
powers on the Excise Authorities;
4. By Section 9(B) the remedy of judicial
review is taken away and the petitioner is
remediless.”
3. The respondent-State prayed for dismissal of the writ
petition on the ground that the Act was within the legislative
competence of the State Government under Item 8 read with
Items 64 & 65 of List II of the 7th Schedule of the Constitution
and is a special Act dealing with right of the State to regulate
production, transfer, storage, possession and sale of liquor or
intoxicating drugs.
4. The High Court noted that 75 similar petitions were filed
before the Jaipur Bench raising similar contentions.
5. Following the view of the Jaipur Bench the Writ Petitions
were dismissed by the impugned judgment.
6. 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
sub section (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.
7. In response, learned counsel for the State made the
reference to Sections 4,5, & 9 Cr.P.C. and Section 41 of the
Indian Penal Code, 1860 (in short the ‘IPC’).
8. The objects and reasons of the Rajasthan Excise
Amendment Act, 2000 need to be noted. The same is as
follows:
“Statement of Objects and Reasons:
The incidence of unauthorised
transportation of excisable articles had
increased in recent past and it was noticed
that owners of such vehicles were indulging in
these activities with impunity. It was also
noticed that the vehicles indulging in such
transportation even after seizure for
commission of the offence were released from
courts and were again used for unauthorised
transportation of exciseable articles. To check
this menace, it was considered necessary to
provide that if any means of -conveyance is
used in commission of offence under the
Rajasthan Excise Act, 1950, then the same
shall be liable to be confiscated by order of the
Excise Commissioner or the Officer, not below
the rank of District Excise Officer as may be
authorized by the State Government in this
behalf and the owner of such a means of
conveyance shall be, deemed to be guilty of
offence for the commission of which, the said
means of conveyance was used. For achieving
these purposes, Section 69 of the Rajasthan
Excise Act was proposed to be suitably
amended and a new Section 54A was proposed
to be inserted.”
The amended Section 54 reads as follows:
-,
“54. Penalty for unlawful import, export,
transport, manufacture, possession etc.- ,
Whoever in contravention of this Act or of any
rule or order made or of any licence, permit or
pass granted, thereunder
(a) imports, exports, transports, manufactures,
collects, sells or possesses any excisable article, or,
(b) cultivates any hemp plant (Cannabis Sativa);
or
(c) constructs or works any distillery, pot still or
brewery; or
(d) uses, keeps or has in his possession any
materials stills, utensil, implements or apparatus
whatsoever for the purpose of manufacturing any
excisable article other than tari; or removes any excisable
articles for any distillery potstill,(brewery) or warehouse
established or licensed under this Act or
(e) bottles any liquor for the purposes of sale; or
(f) taps or draws tari from any tari producing
tree;
shall be punishable with imprisonment for a term which
may extend to three years and with fine which may
extend to two thousand rupees.
Sections 54A and 69 read as follows:
“54-A. Owner of animal, cart, vessel, raft, motor
vehicle or any other means of conveyance deemed to
be guilty in certain cases. Where any animal, cart,
vessel, raft, motor, vehicle or any other means of
conveyance is used in the commission of an offence
under this Act, and is liable to confiscation, the
owner thereof, except, in case of a motor vehicle -or
other, means of conveyance being owned by the
Central, Government or any State Government or
any of the undertakings, shall be deemed to be
guilty of such offence and such owner shall be liable
to be proceeded and be- punished accordingly
unless he satisfies the court that he had no reason
to believe that such offence was being or likely to
be committed and he had exercised due care in the
prevention of the commission of such an offence.
69. What things are liable to confiscation- (1)
Whenever an offence punishable under this Act has
been committed
(a) every excisable article in respect of which such
offence has been committed.
(b) every still, utensil, implement or apparatus and
all materials by means of which such offence has
been committed,
(c) every excisable article lawfully imported
transported, manufactured held in possession or
sold alongwith or in addition to any excisable article
liable to confiscation under clause (a),
(d), every receptacle, package or covering in which
any article as aforesaid or any materials, still,
utensil, implement or apparatus is or are found
together with the other contents –(if any) of such
receptacle or package, and
(e) every animal, cart, vessel, raft or other
conveyance used in carrying such receptacle or
package, shall be liable to confiscation.
(2) When in the trial of any offence punishable
under this Act the Magistrate decides that anything
is liable to confiscation under clause (a) to (d) of
sub-sec (1) he may order confiscation.
Provided that (in case of a thing other than an
excisable article he may, in lieu of ordering
confiscation, give) the owner of the thing liable to be
confiscated an option to pay any such fine as the
Magistrate thinks fit.
(3) When anything mentioned in sub-section (1) is
found in circumstances which afford reason to
believe that an offence under this Act has been
committed in respect or by, means thereof, or when
such an offence has been, committed and the
offender is not known or cannot be found, the
Excise Commissioner may order confiscation of the
same:
Provided that no such order shall be made
until the expiration of one month from the date of
seizing the thing or animal in question or without
hearing the person (if any) claiming any right
thereto, and the evidence (if any) which he produces
in support of the claim:
Provided further that if the thing in question is
liable to speedy and natural decay, if the Excise
Commissioner is of opinion that the sale of the thing
or animal in question would be for the benefit of its
owner, he may at any time direct it to be sold; and
the provisions of this section shall so far as may be,
apply to the net proceeds of such sale.
(4) Where any means of conveyance referred to in
clause (e) of sub-section (1) is seized in connection
with the commission of any offence under this Act,
a report of such seizure shall, without unreasonable
delay, be made by the person seizing to the Excise
Commissioner or to the officer, not below the rank
of the District Excise Officer, as may be duly
authorized by the State Government in this behalf
and whether or not a prosecution is instituted for
commission of such an offence, the Excise
Commissioner or the officer authorized in this
behalf by the State Government, having jurisdiction
over the area where the said means of conveyance
was seized, may, if satisfied that the said means of
conveyance was used for commission of offence
under this Act, order confiscation of the said means
of conveyance.
Provided that before ordering confiscation of
the said means of conveyance a reasonable
opportunity of being. heard shall be afforded to the
owner of the said means of conveyance and if such
owner satisfies the Excise Commissioner or the
officer authorised by the State Government in this
behalf that he had no reason to believe that such
offence was being or likely to be committed and he
had exercised due care in the prevention of the
commission of such an offence, the Excise
Commissioner or the officer authorised by the State
Government in this behalf, may not confiscate the
said means of conveyance.
Provided further that where such means of
conveyance is owned by the Central Government or
any State Government or any of their undertaking,
no order of confiscation of-such means of
conveyance shall be passed by the Excise
Commissioner or the officer authorised by the State
Government in this behalf and the matter shall be
referred to the State Government by the Excise
Commissioner or the officer authorised by the State
Government -in this behalf, for making such orders
regarding means of conveyance as the State
Government may deem fit.
Provided also that before ordering confiscation
under this, sub-section the owner of the means of
conveyance, referred to in clause (e) of sub-sec. (1),
may be given an option to pay in lieu of
confiscation, a fine not exceeding the market price
of such means of conveyance.
(5) Any person aggrieved by an order of
confiscation made under sub-sec. (4) may within
sixty days from the date of communication to him of
such order, appeal to the Divisional Commissioner
and the Divisional Commissioner after giving
opportunity to the appellant to be heard, shall pass
such order as it may think fit, confirming, modifying
or annulling the order appealed against.
(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.
(7) Where the Excise Commissioner or the officer
authorised by the State government in this behalf is
of the opinion that it is expedient in public interest
or for the benefit of its owner that the means of
conveyance as referred to in clause (e) of sub-sec.
(1), seized for commission of offence under this Act
be sold by public auction, he may at anytime direct
it to be sold.
(8) Where any means of conveyance is sold, as
aforesaid, the sale proceeds thereof, after deduction
of the expenses of such sale or auction or other
incidental expenses relating thereto and in other
cases, the means of conveyance which was seized or
the amount of fine paid in lieu of its confiscation,
shall-
(a) where no order of confiscation is ultimately
passed by the Excise Commissioner or the
officer authorized by the State Government
in this behalf or,
(b) where an order passed on appeal under
sub-sec. (5) so requires; or
(c) where in a prosecution instituted for
commission of offence under this Act in
respect of which an order of confiscation has
been made under this section, the person
concerned is acquitted,
be paid, returned or refunded, as the case may
be, to its owner:
Provided that no interest shall be payable on the
amount to be paid or refunded under this sub-
section.
any order of confiscation made by the Excise
Commissioner or any officer authorised by the
State Government in this behalf, shall not prevent
the infliction of any `punishment to which the
person affected thereby is liable under this Act.”
Section 9B of the Act which was introduced in the
Gazette Notification dated 31.7.1998 reads as follows:
“Bar of jurisdiction of civil courts;
No Civil Court shall have jurisdiction to
entertain any suit or proceeding to set aside or
modify;
(a) any original order passed by any of the
officer competent to do so under the provisions
of this Act;
(b) any order passed under or referred to in
Section 9A.”
Article 254 of the Constitution reads as follows:
“(1) If any provision of a law made by the
legislature of a State is repugnant to any
provision of a law made by Parliament which
Parliament is competent to enact, or to any,;
provision of an existing law with respect to one
of the matters enumerated in the Concurrent
List, then, subject to the Provisions of clause
(2),the law made by Parliament, whether passed
before or after the law made by the Legislature
of such State, or, as the case may be, the
existing law, shall prevail and the law made by
the Legislature of the State shall, to the extent
of the repugnancy be void.
(2) Where a law made by the Legislature of a
State with respect to one of the matters
enumerated in the Concurrent List contains
any provision repugnant to the provisions of
an earlier law made by Parliament, or an
existing law with respect to that matter, then,
the law so made by the Legislature of such
State shall, if it has been, .reserved for the
consideration of the President and has
received his assent, prevail in that State
Provided that nothing in this clause shall
prevent Parliament from enacting at any time
any law with respect to the same matter
including a law adding to, amending, varying
or repealing the law so made by the
Legislature of the State.”
9. So far as Amendment Act, 2000 is concerned it received
assent of the Governor on 3.4.2000 by which Section 54A was
inserted and amendments were made in Section 69 of the
existing provisions and sub-sections 4 to 9 were inserted and
earlier amendments were made in Section 9-B which has been
quoted above.
10. In P.N. Krishna Lal & Ors. v. Govt. of Kerala & 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 substance, it
is an integral scheme of the Act, which falls
within Entry 8 read with Entries 64 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 57-A and 57-B 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
1-12-1984. 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.”
11. This is a complete answer to most of the submissions
made by the appellants.
12. In State of Karnataka v. K. Krishnan (2000(7) SCC 80)
this court while considering a case of forest offence under the
Karnataka Forest Act, 1963, 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 of forest offence should not be released and even
if the Court is allowed to release the same, the authorized
officer must specify reasons therefor and must insist on
furnishing of bank guarantee as the minimum condition. In
that case the forest produce was transported in violation of the
provisions of the Act. The High Court had modified the
conditions regarding bank guarantee stipulated by the
authorized officer and instead had directed to furnish two like
sureties to the extent of Rs.1,50,000/- each for the purpose of
getting interim custody of the vehicle. This Court held that
the High Court had adopted a casual approach and its order
was contrary to law.
13. Certain provisions of the Essential Commodities Act,
1955 have relevance. Section 6A deals with confiscation of
food grains, edible oil seeds and edible oils. Section 6B deals
with issue of show cause notice before confiscation of food
grains etc. Section 6E deals with bar of jurisdiction in certain
cases. Section 6E has been substituted to provide that except
Collector or State Government, all other authorities, judicial or
otherwise, would be debarred from making any order with
regard to the possession, delivery, disposal or distribution of
any essential commodity, seized in pursuance of an order
made under Section 3. Thus a Magistrate has no jurisdiction
to grant relief against seizure under Section 457 Cr.P.C.
Section 6A provides for confiscation of essential commodities
seized in pursuance of an order made under Section 3.
Collector of the district of the Presidency Town, 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 Section, 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 6B of the Act
provides the procedure to be adopted by the Collector, before
passing order for confiscation, which provides 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.
14. In case Shambhu Dayal Agarwala v. State of West Bengal
& Anr. (1990 (3) SCC 549) this Court held that whenever any
essential commodity is seized, pending confiscation under
Section 6A, 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, this 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 in acquittal of
the offender. Such a view would render clause
(b) of Section 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 Section 7(1)(b)
otiose where the essential commodity is
disposed of by the Collector under Section
6A(2) is misconceived. Section 6A does not
empower the Collector to give an option to pay,
in lieu of confiscation of essential commodity a
fine not exceeding the market value 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
Section 6A the essential commodity has to be
exercised in public interest for maintaining the
supplies and for securing the equitable
distribution of the essential commodity.”
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 Jilubhai
Nanbhjai Khachar & Ors. v. State of Gujarat and Anr. (1995
Supp (1) SCC 596), after examining the principle of “Eminent
Domain” it was held by this Court that Article 300-A 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 Fernandes [2000(3)
SCC 306] and State of W.B. & Ors. v. Sujit Kumar Rana [2004
(4) SCC 129] while gauzing the validity of the impugned
provisions.
18. In view of what has been stated above the inevitable
conclusion is that the appeals are without merit, deserve
dismissal, which we direct. No costs.