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Delhi Excise Act sec. 33,58,59 and sec.61 – Sec.457 of Cr.P.C – Release of vehicle seized while transporting illicit liquor by police – Magistrate dismissed – High court allowed as the vehicle was seized by police but not by Excise Department – Apex court held that special law prevails over the general law and held that as per sec.59 all seized properties are to be produced before the Deputy commissioner of Excise who holds authority to deal with the same – Sec.61 bars jurisdiction of courts in respect of that seized properties and held that High court committed wrong and set aside the order of High court as it exceeds it’s Jurisdiction = STATE (NCT OF DELHI) … APPELLANT VERSUS NARENDER …RESPONDENT = 2014 ( JANUARY – VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41134

Delhi Excise Act sec. 33,58,59 and sec.61 – Sec.457 of Cr.P.C – Release of vehicle seized while transporting illicit liquor by police – Magistrate dismissed – High court allowed as the vehicle was seized by police but not by Excise Department – Apex court held that special law prevails over the general law and held that as per sec.59 all seized properties are to be produced before the Deputy commissioner of Excise who holds authority to deal with the same – Sec.61 bars jurisdiction of courts in respect of that seized properties and held that High court committed wrong and set aside the order of High court as it exceeds it’s Jurisdiction =

 

The  vehicle

abandoned by the driver was “Cruiser Force” and had registration No.  HR-56-

7290.  After opening of  the  windows  of  the  vehicle,  27  Cartons,  each

containing 12 bottles of 750  ml.  Mashaledar  country-made  liquor  and  20

Cartons, each containing 48 quarters of Besto Whisky were found  inside  the

vehicle.  All the 47 Cartons were embossed  with  ‘Sale  in  Haryana  only’.

Constable Raghmender Singh gave a report to the police  and  on  that  basis

FIR No. 112 of 2011 dated 17.04.2011 was registered  at  Aman  Vihar  Police

Station under Section 33(a) and Section 58 of the Delhi  Excise  Act,  2009.

During the course of investigation, Narender,  respondent  herein,  claiming

to be the owner of the vehicle, filed an  application  for  its  release  on

security, before the Metropolitan Magistrate,  Rohini,  who,  by  his  order

dated 24th of May, 2011 rejected the same, inter alia, holding that  he  has

no power to release the vehicle seized in connection with the offence  under

the Delhi Excise Act.

 

The High  Court,  by  its  impugned

order dated 28th of November, 2011 directed the vehicle to  be  released  in

favour of the registered owner on furnishing security  to  the  satisfaction

of the  Metropolitan  Magistrate.   

While  doing  so,  the  High  Court  has

observed as follows:

 

 

           “………The vehicle in question was seized by  the  Police  and  not

           confiscated and if that was so, Section  58,  Delhi  Excise  Act

           would not apply with regard to the vehicle in question  and  the

           procedure that was to be followed regarding the vehicle  was  to

           be found in Chapter VI of Delhi Excise Act and also Section 451,

           Cr.P.C………”   =

 

 Section  59(1)  thereof  provides   that   notwithstanding

anything contained in any other law where anything liable  for  confiscation

under Section 58 is seized or detained, the officer  seizing  and  detaining

such thing shall produce  the  same  before  the  Deputy  Commissioner.   

On

production of the seized property, the  Deputy  Commissioner,  if  satisfied

that the offence under the Act has been committed,  may  order  confiscation

of such property.  

 

 “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.”

 

 

State of  Karnataka  v. K.A. Kunchindammed, (2002) 9 SCC 90,   which  while  dealing  with  somewhat

similar provisions under the Karnataka Forest Act held  as follows:-

 

 

           “23……….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 Authorized 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 CrPC 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 Authorized Officer  under

           the Act and if he  finds  that  such  power  is  vested  in  the

           Authorized 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 Authorized 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.”

 

 

 

      From a conspectus of what we have observed above, the  impugned  order

of the High Court is found to be vulnerable and, therefore, the same  cannot

be allowed to stand.

 

  In the result, we allow this appeal, set aside the  impugned  judgment

and order of the High Court and hold that the High  Court  exceeded  in  its

jurisdiction in directing for release of the vehicle on security.

 

2014 ( JANUARY – VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41134

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.25 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) NO. 8423 OF 2012)
STATE (NCT OF DELHI) … APPELLANT

VERSUS
NARENDER …RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
The State of Delhi, aggrieved by the order dated 28th of November,
2011 passed by the Delhi High Court in Criminal M.C. No. 2540 of 2011,
whereby it had directed for release of the vehicle bearing Registration No.
HR-56-7290 to the registered owner on security, has preferred this special
leave petition.
Leave granted.
Shorn of unnecessary details, facts giving rise to the present appeal
are that while constables Raghmender Singh and Sunil were on night
patrolling duty at Kirari Nithari turn on 17th of April, 2011, they saw a
vehicle coming from the side of the Nithari Village. Constable Raghmender
Singh signalled the driver to stop the vehicle, but he did not accede to
his command and turned the vehicle into the Prem Nagar Extension Lane.
Both the constables chased the vehicle on their motorcycle and the driver
of the vehicle, apprehending that he would be caught, left the vehicle and
ran away from the place, taking advantage of the darkness. The vehicle
abandoned by the driver was “Cruiser Force” and had registration No. HR-56-
7290. After opening of the windows of the vehicle, 27 Cartons, each
containing 12 bottles of 750 ml. Mashaledar country-made liquor and 20
Cartons, each containing 48 quarters of Besto Whisky were found inside the
vehicle. All the 47 Cartons were embossed with ‘Sale in Haryana only’.
Constable Raghmender Singh gave a report to the police and on that basis
FIR No. 112 of 2011 dated 17.04.2011 was registered at Aman Vihar Police
Station under Section 33(a) and Section 58 of the Delhi Excise Act, 2009.
During the course of investigation, Narender, respondent herein, claiming
to be the owner of the vehicle, filed an application for its release on
security, before the Metropolitan Magistrate, Rohini, who, by his order
dated 24th of May, 2011 rejected the same, inter alia, holding that he has
no power to release the vehicle seized in connection with the offence under
the Delhi Excise Act. The respondent again filed an application for the
same relief i.e. for release of the vehicle on security before the
Metropolitan Magistrate but the said application also met with the same
fate. By order-dated 14th of July, 2011, the learned Metropolitan
Magistrate declined to pass the order for release, inter alia, observing
that any order directing for release of the vehicle on security would
amount to review of the order dated 24th of May, 2011, which power the
court did not possess.
Aggrieved by the same, the respondent filed an application before the
High Court under Section 482 of the Code of Criminal Procedure (hereinafter
referred to as ‘the Code’), assailing the order dated 24th May, 2011 passed
by the learned Metropolitan Magistrate. The High Court, by its impugned
order dated 28th of November, 2011 directed the vehicle to be released in
favour of the registered owner on furnishing security to the satisfaction
of the Metropolitan Magistrate. While doing so, the High Court has
observed as follows:
“………The vehicle in question was seized by the Police and not
confiscated and if that was so, Section 58, Delhi Excise Act
would not apply with regard to the vehicle in question and the
procedure that was to be followed regarding the vehicle was to
be found in Chapter VI of Delhi Excise Act and also Section 451,
Cr.P.C………”

 
Mr. Mohan Jain, Additional Solicitor General appears on behalf of the
appellant whereas the respondent is represented by Mr. Harish Pandey. Mr.
Jain submits that in view of the embargo put by Section 61 of the Delhi
Excise Act, the High Court had no jurisdiction to pass an order for release
of the vehicle on security. Mr. Pandey, however, submits that the High
Court has the power under Section 451 of the Code to direct for release of
the vehicle on security and the same is legal and valid.
Rival submissions necessitate examination of the scheme of the Delhi
Excise Act, 2009 (hereinafter referred to as ‘the Act’). Section 33 of the
Act provides for penalty for unlawful import, export, transport,
manufacture, possession, sale etc. of intoxicant and Section 33(a), which
is relevant for the purpose reads as follows:
“33. Penalty for unlawful import, export, transport,
manufacture, possession, sale, etc.- (1) Whoever, in
contravention of provision of this Act or of any rule or order
made or notification issued or of any licence, permit or pass,
granted under this Act-

(a) manufactures, imports, exports, transports or removes any
intoxicant;

xxx xxx xxx

shall be punishable with imprisonment for a term which shall not
be less than six months but which may extend to three years and
with fine which shall not be less than fifty thousand rupees but
which may extend to one lakh rupees.”
Section 58 of the Act provides for confiscation of certain things and
Section 58(d) thereof, with which we are concerned in the present appeal,
reads as follows:
“58. Certain things liable to confiscation.- Whenever an offence
has been committed, which is punishable under this Act,
following things shall be liable to confiscation, namely-
xxx xxx xxx
(d) any animal, vehicle, vessel, or other conveyance used for
carrying the same.”
From a plain reading of Section 33(a) of the Act, it is evident that
transportation of any intoxicant in contravention of the provisions of the
Act or of any rule or order made or notification issued or any licence,
permit or pass, is punishable and any vehicle used for carrying the same,
is liable for confiscation under Section 58(d) of the Act. Section 59 of
the Act deals with the power of confiscation of Deputy Commissioner in
certain cases. Section 59(1) thereof provides that notwithstanding
anything contained in any other law where anything liable for confiscation
under Section 58 is seized or detained, the officer seizing and detaining
such thing shall produce the same before the Deputy Commissioner. On
production of the seized property, the Deputy Commissioner, if satisfied
that the offence under the Act has been committed, may order confiscation
of such property. Therefore, under the scheme of the Act any vehicle used
for carrying the intoxicant is liable to be confiscated and on seizure of
the vehicle transporting the intoxicant, the same is required to be
produced before the Deputy Commissioner, who in turn has been conferred
with the power of its confiscation.
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.”
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.
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 non-
obstante clause not only in Section 59 but also in Section 61 of the Act.
As is well settled, a non-obstante 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, Section 451, 452
and 457 of the Code must yield to the provisions of the Act and there is no
escape from the conclusion that 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. The view which we have taken finds
support from a judgment of this Court in the case of State of Karnataka v.
K.A. Kunchindammed, (2002) 9 SCC 90, which while dealing with somewhat
similar provisions under the Karnataka Forest Act held as follows:-
“23……….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 Authorized 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 CrPC 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 Authorized Officer under
the Act and if he finds that such power is vested in the
Authorized 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 Authorized 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.”

 

From a conspectus of what we have observed above, the impugned order
of the High Court is found to be vulnerable and, therefore, the same cannot
be allowed to stand.

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, which
upheld a somewhat similar provision existing in the Rajasthan Excise Act.

In the result, we allow this appeal, set aside the impugned judgment
and order of the High Court and hold that the High Court exceeded in its
jurisdiction in directing for release of the vehicle on security.

………..………..……………………………….J.
(CHANDRAMAULI KR. PRASAD)

 

………………….………………………………….J.
(KURIAN JOSEPH)
NEW DELHI,
JANUARY 06, 2014.

 

 

———————–
15

 

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