W.P.(C)/4760/2014 of DEEPAK HOODA Vs THE EXCISE COMMISSIONER AND ANR.

IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment delivered on: 09.01.2020

+W.P.(C) 4760/2014 & CM APPL. No.9475/2014

DEEPAK HOODA

versus

..... Appellant

THE EXCISE COMMISSIONER AND ANR.

..... Respondent

Advocates who appeared in this case:For the Petitioner: Mr. Vimal Puggal.For the Respondent: Mr. Gautam Narayan, ASC for: GNCTD with Ms. Shivani Vij and D.: Shahi.

CORAMHON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

Introduction

1.The petitioner has filed the present petition, inter alia,impugning an order dated 11.04.2014 passed by the FinancialCommissioner, whereby the appeal preferred by the petitioner againstan order dated 21.02.2013 passed by the Commissioner of Exciseunder Section 73(2) of the Excise Act, 2009 (hereafter ‘the ExciseAct’), was rejected. By the said order dated 21.02.2013, theCommissioner of Excise had rejected the petitioner’s appeal against anorder dated 12.01.2012 passed by the Deputy Commissioner of Exciseunder Section 59 of the Excise Act, whereby the petitioner’s vehicle

was confiscated on account of being used in commission of an offencepunishable under Section 33 of the Excise Act. The abovementionedorders are hereafter referred to as the impugned orders.

2.The petitioner contends that prosecution proceedings arepending and he has not been convicted of committing any offenceunder Section 33 of the Excise Act as yet. Therefore, confiscation ofhisvehicleispre-mature.Therespondentscontendthattheproceedings for confiscation under Section 59 of the Excise Act areindependent of the prosecution proceedings and thus, pendency of thesaid proceedings do not preclude confiscation of his vehicle underSection 59 of the Excise Act. Thus, the principal question to beaddressed is whether the proceedings for confiscation under Section59 of the Excise Act can be maintained and proceeded withindependent of the prosecution for committing an offence underSection 33 of the Excise Act.

Factual Background

3.The petitioner is resident of Rohtak, Haryana and claims to bea student of B.A. Pass College Rohtak. On 29.05.2011 at about 5.15a.m., the police officials of Police Station Kanjhawala arrested thepetitioner while he was allegedly transporting one hundred and fifty-two cartons of Murthal No.1 Desi Sharab and twenty-two cartons ofBesto Whisky from Haryana into Delhi, without any valid permissionor license. The said liquor was being transported in vehicle (TruxCruiser) bearing registration No. HR-33E-0547. The said liquor and

the vehicle in question was seized on the spot. An FIR was registered(FIR No. 129/2011 under Section 279/337 of the IPC and Section 33of the Excise Act) with Police Station Kanjhawala. The said FIRrecords that the vehicle in question was being driven by the petitioner.

4.During the course of investigation, the petitioner was grantedbail by the Court of learned Metropolitan Magistrate. Thereafter, thepetitioner filed an application for release of the vehicle on Superdari.The said application was allowed by the learned MetropolitanMagistrate by an order dated 10.01.2012 and the vehicle in question(Trux Cruiser bearing No. HR-33E-0547) was directed to be releasedto the petitioner on his on furnishing Superdarinama for sum of₹3,00,000/-, which was stated to be the market value of the said vehicle. In its order, the Court also observed that the vehicle had beenseized by the police officials and had not been confiscated by theDelhi Excise Commissioner.

5.In the meantime, show cause notice dated 12.08.2011 wasissued by the Deputy Commissioner, Excise under Section 59 of theExcise Act, inter alia, calling upon the petitioner to show cause as towhy the vehicle in question (Trux Cruiser bearing No. HR-33E-0547)and the seized liquor (one hundred forty two cartons of Murthal No.1Desi Sharab and twenty two Cartons of Besto Whisky), not beconfiscated. The petitioner was called upon to furnish his reply withina period of seven days from the date of the issuance of the said notice.He was further provided an opportunity for being heard at hearingscheduled on 13.09.2011 at 3.00 p.m.

6.The petitioner responded to the said show cause notice. Hestated that he had given the vehicle in question to his friend (oneDevender Kumar) resident of village Sunaria, District Rohtak,Haryana in order to enable him to attend to the last ceremonies of oneof his relatives. He stated that he had received the telephone call on29.05.2011 informing him that the vehicle had met with an accidentand calling upon him to reach the police station. The petitioner statedthat on arriving at the police station, he became aware that liquor hadbeen found in the vehicle and false and frivolous case had beenlodged against him. In view of the above, he requested that the vehiclebe released to him. The petitioner also attended the hearing held on13.09.2011 and made oral submissions to similar effect.

7.TheDeputyCommissionerofExciseconsideredthepetitioner’s response as well as other material on record and passedthe impugned order dated 12.01.2012, confiscating the vehicle inquestion and seizing the liquor in exercise of powers under Section 59(2) of the Excise Act. He further directed that it would be expedient inpublic interest that the vehicle be auctioned and the seized liquor bedestroyed, as per the procedure laid down in Chapter IX of the DelhiExcise Rules, 2010. He also directed that photographs of theconfiscated vehicle and the samples of the confiscated liquor bepreserved to meet the evidentiary requirements as provided underSection 60 of the Excise Act.

8.Aggrieved by the aforesaid order, the petitioner preferred anappealbefore the ExciseCommissioner(AppealNo. 16/2012

captioned Deepak Hooda v. Deputy Commissioner (Excise). Thepetitioner contended that the impugned order dated 12.01.2012 waserroneous as it had been passed without considering the fact that thetrial for the offence under Section 33 of the Excise Act was pendingbefore learned Metropolitan Magistrate, Delhi. He contended that thevehicle in question could not be confiscated or disposed of withoutprior permission of the learned M.M. The said appeal was rejected bythe Commissioner, Excise by the impugned order dated 21.02.2013.

9.Aggrieved by the impugned order dated 21.02.2013 passed bythe Commissioner (Excise), the petitioner preferred an appeal beforethe Financial Commissioner. The petitioner challenged the aforesaidimpugned order dated 21.02.2013, essentially, on three grounds. First,that the liquor was being brought by the appellant from the State ofHaryana and therefore, the case was not covered under Section 33 ofthe Excise Act. Second, that the vehicle had been released onSuperdari by the Court of learned Metropolitan Magistrate and,therefore, thevehiclecould not be confiscatedwithout priorpermission of the concerned M.M. And third, that the appellant hadbeen falsely implicated under the Excise Act.

10.The Financial Commissioner rejected the contention that theExcise Act was not applicable, as he found that the petitioner wasinvolved in transporting liquor to Delhi from Ladpur Village, whichfalls on the border of Haryana. Since the liquor had been imported intoDelhi from another State without necessary licence/permission, thesame fell foul of the provisions of Section 33 of the Excise Act. The

Financial Commissioner also rejected the petitioner’s contention thatany prior permission of the learned M.M. was required beforeconfiscating the vehicle under Section 58 and 59 of the Excise Act. Hereasoned that the confiscation proceedings were independent of theprosecution for commission of an offence under Section 33 of theExcise Act. And, therefore, no such permission was necessary. TheFinancial Commissioner also found no merit in the petitioner’scontention that he had been falsely implicated.

11.In view of the above, the Financial Commissioner rejected thepetitioner’s appeal by the impugned order dated 11.04.2014 (which isimpugned in the present petition).

Submissions

12.Mr. Vimal Puggal, learned counsel appearing for the petitionerassailed the impugned orders, essentially, on two fronts. First, hesubmitted that the concerned authorities had failed to appreciate thatthe provisions of the Excise Act required the impounded/seizedvehicle to be brought before the Excise Commissioner without anydelay. He submitted that in the present case, the vehicle was notproduced before the Deputy Commissioner (Excise) and was releasedon Superdari to the petitioner. He submitted that since the provisionsof the Excise Act regarding production of the vehicle had not beencomplied with, the vehicle could not be confiscated. Second, hesubmitted that the vehicle could not be confiscated unless it isestablished that the petitioner was guilty of an offence punishable

under Section 33 of the Excise Act. He submitted that since thecriminal trial relating to the said offence is pending, the vehicle couldnot be confiscated till the conclusion of the criminal trial. He relied onthedecisionofthisCourtinDrVarunveerv.FinancialCommissioner, Delhi and Ors: 2018 (167) DRJ 158 in support of hiscontention.

13.In addition to the above, Mr Vimal Puggal, learned counsel alsosubmitted that certain provisions of the Excise Act, including Section61, were ultra vires the constitution of India. He also submitted thatvehicles used in committing other serious offences are as matter ofcourse released on Superdari till the final decision and, therefore,confiscation of vehicle allegedly used in committing an offenceunder the Excise Act pending criminal trial, is wholly arbitrary andunreasonable.

14.However, he fairly conceded that the petitioner had notchallenged the constitutional validity of any provision of the ExciseAct, in the present petition.

15.Mr Gautam Narayan, learned counsel appearing for therespondent countered the aforesaid submissions. He contended that theconfiscation proceedings under the Excise Act are independent and avehicle used in committing an offence under Section 33 of the ExciseActcouldbeconfiscated,notwithstandingthatprosecutionproceedings were not launched. He relied on the decision of theSupreme Court in Divisional Forest Officer & Anr. v. G.V. Sudhakar

Rao & Ors.: (1985) 4 SCC 573 in support of his contention. He alsoreferred to the decision of the Supreme Court in State of West Bengal& Ors. v. Sujit Kumar Rana: (2004) 4 SCC 129.

16.He contended that Section 59(1) of the Excise Act contains anon obstante proviso and therefore, the power of the DeputyCommissioner to confiscate property under Section 59(2) of theExcise Act would not be subject to the proceedings before the learnedM.M.; consequently, no prior permission for exercising such powerwas necessary. He relied on the decision of the Supreme Court inState (NCT of Delhi) v. Narender: (2014) 13 SCC 100 in support ofhis contention.

Reasons and Discussion

17.At the outset, it would be necessary to refer to the relevantprovisions of the Excise Act. Section 33, inter alia, provides forpenalty for unlawful import, export, transport and manufacture,possession and sale, etc. of intoxicant. Section 33 of the Excise Act isset out below:-

“33.Penaltyforunlawfulimport,export,transport, manufacture, possession, sale, etc.-

(1) Whoever, in contravention of provision of this Actor of any rule or order made or notification issued orof any licence, permit or pass, granted under this Act-

(a) manufactures, imports, exports, transports orremoves any intoxicant;

(b)constructsorworksanymanufactoryorwarehouse;

(c) bottles any liquor for purposes of sale;

(d) uses, keeps or has in his possession any material,still, utensil, implement or apparatus, whatsoever, forthe purpose of manufacturing any intoxicant otherthan toddy or tari;

(e) possesses any material or film either with orwithout the Government logo or logo of any State orwrapper or any other thing in which liquor can bepacked or any apparatus or implement or machine forthe purpose of packing any liquor;

(f) sells any intoxicant, collects, possesses or buys anyintoxicant beyond the prescribed quantity,shall bepunishable with imprisonment for term which shallnot be less than six months but which may extend tothree years and with fine which shall not be less thanfifty thousand rupees but which may extend to onelakh rupees.”

18.Section 58 of the Excise Act provides for confiscation ofspecified things when an offence which is punishable under the ExciseAct, is committed. Section 59 of the Excise Act empowers the DeputyCommissioner to confiscate certain property as specified underSection 58 of the Excise Act. Section 58 and 59 of the Excise Act areset out below:-

“58.Certain things liable to confiscation.-Whenever an offence has been committed, which ispunishable under this Act, following things shall beliable to confiscation, namely-

(a) any intoxicant, material, still, utensil, implement,

apparatus in respect of or by means of which suchoffence has been committed;

(b) any intoxicant unlawfully imported, transported,manufactured, sold or brought along with or inaddition to, any intoxicant, liable to confiscationunder clause (a);

(c) any receptacle, package, or covering in whichanything liable to confiscation under clause (a) orclause (b), is found, and the other contents, if any, ofsuch receptacle, package, or covering;

(d) any animal, vehicle, vessel, or other conveyanceused for carrying the same.

59. Confiscation by Deputy Commissioner incertaincases.-(1)Notwithstanding anythingcontained in this Act or any other law for the timebeinginforce,whereanythingliableforconfiscation under section 58 is seized or detainedunder the provisions of this Act, the officer seizingand detaining such property shall, without anyunreasonabledelay,producethesaidseizedproperty before the Deputy Commissioner.

2) On production of the said seized property undersub-section(1),theDeputyCommissionerifsatisfied that an offence under this Act has beencommitted may, whether or not prosecution isinstituted for the commission of such an offence,order confiscation of such property, otherwise hemay order its return to the rightful owner.

(3) While making an order of confiscation undersub-section (2), the Deputy Commissioner may alsoorder that such of the properties to which the orderof confiscation relates, which in his opinion cannotbe preserved or are not fit for human consumption,be destroyed. Whenever any confiscated article has

to be destroyed in conformity with these provisions,it shall be destroyed in the presence of the exciseofficer not below the rank of an inspector.

(4) Where the Deputy Commissioner, after passingan order of confiscation under sub-section (2), is ofthe opinion that it is expedient in the public interestso to do, he may order the confiscated property orany part thereof to be sold by public auction ordispose it of otherwise.

(5) When an order for confiscation of any propertyhas been passed under section 59 and such order hasbecome final in respect of the whole or any portionof such property, such property or portion thereof,as the case may be, shall vest in the Governmentfree from all encumbrances.

(6) The Deputy Commissioner shall submit reportof all particulars of confiscation to the ExciseCommissionerwithinonemonthofsuchconfiscation.

(7) Any intoxicant, mahua flowers or molasses andanyotherpropertyifconfiscatedinacasecompounded under section 57 of the Act or inrespect of which an offence has been committed andthe offender is not known or cannot be found, shallbe disposed of in the manner as prescribed.”

19.Section 60 of the Excise Act provides that an order ofconfiscation under Section 58 of the Excise Act shall not preventimposition of any other punishment under the Excise Act. Section 60of the Act is set out below:-

“60. Order of confiscation and destruction not

to interfere with other punishment.-

(1) The order of confiscation under section 58 shallnot prevent imposition of any other punishment towhich person is liable under this Act.

(2) Notwithstanding anything contained in anyother law for the time being in force, the disposalof confiscated goods in the manner, thereby non-production of case property before the trial court,shall not affect the conviction for an offence underthis Act:

PROVIDED that the samples of the intoxicantsand the photographs of the confiscated propertymaybepreservedtomeettheevidentiaryrequirements.”

20.Section 67 of the Excise Act provides that all major offencesunder the Act shall be cognizable and the provisions of the Code ofCriminal Procedure, 1973 shall apply to them. Section 69 of theExcise Act provides that all offences under the Excise Act, which arepunishable with fine or with imprisonment for term not exceedingthree years, shall be tried summarily by M.M. and the provisions ofSection 262 to 265 of the Code of Criminal Procedure, 1973 shall, asfar as may, be applied to such trial.

21.It is clear from the scheme of the Excise Act that itcontemplates separate procedure for confiscation of certain things,whenever an offence under the Excise Act is committed. In terms ofClause (a) of Section 58 of the Excise Act, any intoxicant, material,still, utensil, implement, the apparatus in respect of or by means of

which such offence is committed, is liable for confiscation. Clause (d)of Section 58 also provides that any animal, vehicle, vessel or otherconveyance used for carrying such intoxicant is also liable forconfiscation.

22.In the present case, it is alleged that the vehicle in question wasused for unlawfully importing/transporting liquor into Delhi. Thus, thesaid liquor as well as the vehicle used in commission of such offenceis liable to be confiscated in terms of Section 58 of the Excise Act.

23.It is also apparent that the proceedings for confiscation areindependent of the prosecution for such an offence. The openingsentence of Section 59 of the Excise Act – which empowers theDeputy Commissioner to confiscate things that are liable forconfiscation under Section 58 of the Excise Act – contains nonobstante provision. Section 59(1) of the Excise Act expressly providesthat where anything liable for confiscation under Section 58 of theExcise Act is seized or detained, the officers seizing or detaining theproperty is required to produce the same before the DeputyCommissioner, notwithstanding anything contained in the Excise Actor any other law for the time being in force.

24.A non obstante provision is to ensure that the provisionscovered under the non obstante clause override other statutoryprovisions and the conflict between the statutes is resolved in favourof the provision falling under the non obstante clause. Thus,provisions of Section 59 of the Act would override not only the other

provisions of the Excise Act but also other laws. It follows that thepower of the Deputy Commissioner to confiscate things that are liablefor confiscation under Section 58 of the Excise Act, is notcircumscribed by any provision of the Excise Act or any other law inforce. Thus, if the Deputy Commissioner is satisfied that an offenceunder the Excise Act has been committed, he is empowered to orderconfiscation of such property on the same being produced.

25.Sub-Section (2) of Section 59 of the Excise Act makes itexpressly clear that Deputy Commissioner can exercise its powersfor confiscation of property, if any offence under the Excise Act hasbeen committed irrespective of whether the prosecution has beeninstituted for commission of such an offence. The language of Sub-Section (2) of Section 59 of the Excise Act leaves no room for anydoubt that the confiscation proceedings under Section 58 and 59 of theExcise Act are wholly independent of the prosecution proceedings,which are required to be tried by the M.M.

26.It is also important to refer to the provisions of Section 61 of theExcise Act, which expressly states that no court would havejurisdiction to make any order with regard to any specified propertythat is seized or detained under the provisions of the Excise Act. It isimportant to note that Section 61 of the Act also contains nonobstante provision and, thus, other courts are proscribed fromexercising any jurisdiction in respect of property that is seized ordetained under the Excise Act. Section 61 of the Excise Act is set outbelow:-

“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 incommitting any offence, is seized or detained underthis Act, no court shall, notwithstanding anything tothe contrary contained in any other law for the timebeing in force, have jurisdiction to make any orderwith regard to such property.”

27.In Divisional Forest Officer & Anr. v. G.V. Sudhakar Rao &Ors. (supra), the Supreme Court considered the question whetherproceedings for confiscation of any timber or forest produce couldproceedsimultaneouslywiththecriminalcaseinstitutedforcommission of forest offence. The said question arose in respect ofthe Andhra Pradesh Forest Act, 1967. The relevant provisions of thesaid Act are set out below:-

44. Seizure of property liable to confiscation andprocedure thereupon:-

(1) Where there is reason to believe that forestoffence has been committed in respect of any timberor forest produce, such timber, or forest produce,together with all tools, ropes, chains, boats, vehiclesand cattle used in committing, any such offence, maybe seized by any forest officer or police officer.

(2) Every officer seizing any property under thisSectionshallplaceonsuchpropertyorthereceptacle, if any, in which it is contained markindicating that the same has been so seized and shall,except where the offender agrees in writing forthwithtogettheoffencecompounded,withoutany

unreasonable delay, either produce the propertyseized before an officer not below the rank of anAssistant Conservator of Forests authorized by theGovernmentinthisbehalfbynotification(hereinafter referred to as the authorized officer) ormake report of such seizure to the Magistrate:

Provided that where the timber or forest producewith respect to which such offence is believed tohave been committed is the property of the Central orState Government and the offender is not known, itshall be sufficient if the officer makes, as soon asmay be, report of the circumstances to theDivisional Forest Officer.

(2-A) Where an authorized officer seizes under Sub-section (1) any timber or forest produce or where anysuch timber or forest produce is produced before himunder Sub-section (2) and he is satisfied that forestoffence has been committed in respect thereof, hemay order confiscation of the timber or forestproduce so seized or produced together with all tools,ropes, chains, boats or vehicles used in committingsuch offence.

(2-B) No order of confiscating any property shall bemade under sub-section (2-A) unless the person fromwhom the property is seized is given,-

(a) notice in writing informing him of thegrounds on which it is proposed to confiscatesuch property;

(b) an opportunity of making representationin writing within such reasonable time as mayspecified in the notice against the grounds forconfiscation; and

(c) reasonable opportunity of being heard inthe matter.

(2-C) Without prejudice to the provisions of sub-section (2-B), no order of confiscation under sub-section (2-A) of any tool, rope, chain, boat or vehicleshall be made if the owner thereof proves to thesatisfaction of the authorised officer that it was usedin carrying the property without his knowledge orconnivance or the knowledge or connivance of hisagent, if any, or the person in charge of the tool,rope, chain, boat or vehicle in committing theoffence and that each of them had taken allreasonable and necessary precautions against suchuse.

(2-D) Any forest officer not below the rank of aConservatorofForestsempoweredbytheGovernment in this behalf by notification, maywithin thirty days from the date of the order ofconfiscation by the authorised officer under sub-section (2-A) either suo motu or on application callfor and examine the record of that order and maymake such inquiry or cause such inquiry to made andpass such orders as he may think fit:

Provided that no order, prejudicial to any person,shall be passed without giving him an opportunity ofbeing heard.

(2-E) Any person aggrieved by an order passed undersub-section (2-A) or subsection (2-D) may, withinthirty days from the date of communication to him ofsuch order, appeal to the District Court havingjurisdiction over the area in which the property hasbeen seized, and the District Court shall after givingan opportunity to the parties to be heard, pass suchorder as it may think fit and the order of the DistrictCourt so passed shall be final.

(3) Any forest officer not below the rank of aForester, who or whose subordinate has seized any

tools, ropes, chains, boats, vehicles or cattle undersub-section (1) and where he makes report of suchseizure to the Magistrate under sub-section (2) mayrelease the same on the execution by the ownerthereof bond for the production of the property soreleased,ifandwhensorequiredbeforetheMagistrate.

(4) Upon the receipt of any report under sub-section(2), the Magistrate shall, except where the offence iscompounded,takesuchmeasuresasmaybenecessary for the trial of the accused and the disposalof the property according to law.

(5) The property seized under this section, shall bekept in the custody of the forest officer not below therank of Forest Guard or the Village Headman untilthe compensation for compounding the offence ispaid or until an order of the Magistrate directing itsdisposal is received.

45. Timber, forest produce tools, etc., when liableto confiscation:-

Where person is convicted of forest offence, thecourt sentencing him shall order confiscation to theGovernment of timber or forest produce in respect ofwhich such offence was committed and of any tool,boat, vehicle, vessel or other conveyance or anyother article used in committing such offence exceptwhere an order of confiscation has already beenpassed In respect thereof under Section 44.

58-A. Order of confiscation not to bar impositionof other penalty:-

An order of confiscation under Sub-section (2A) orSub-section (2D) of Section 44 shall not be deemed

to bar the imposition of any other penalty to whichthe person from whom the property is seized is liableunder this Act.”

28.The Supreme Court interpreted the aforesaid provisions andobserved as under:-

“12. close, careful and combined reading of thevarious subsections of Section 44, Section 45 andSection 58-A of the Act as introduced or amended byAct l7 of 1976 leaves no doubt that the intendment ofthe Legislature was to provide for two separateproceeding before two different forums and there is noconflict of jurisdiction as Section 45, as amended bythe Amendment Act, in terms curtails the powerconferred on the Magistrate to direct confiscationtimber or forest produce on conviction of the accused.The conferral of power of confiscation of seizedtimber or forest produce and the implements etc. onthe Authorized officer under Sub-section (2A) ofSection 44 of the Act on his being satisfied that aforest offence had been committed in respect thereof,is not dependent upon whether criminal prosecutionfor commission of forest offence has been launchedagainst the offender or not. It is separate and distinctproceeding from that of trial before the Court forcommission of an offence. Under Sub-section (2A) ofS. 44 of the Act, where Forest Officer makes areport of seizure of any timber or forest produce andproduces the seized timber before the AuthorizedOfficer along with report under Section 44(2) theAuthorizedOfficercandirectconfiscationtoGovernment of such timber of forest produce and theimplements etc. if he is satisfied that forest offencehas been committed, irrespective of the fact whetherthe accused is facing trial before Magistrate for thecommission of forest offence under Section 20 or 29of the Act.”

29.It is also relevant to refer to the decision of the Supreme Courtin State of West Bengal v. Gopal Sarkar: (2002) 1 SCC 495. In thatcase, the Supreme Court had considered the import of Section 59-A ofthe Indian Forest Act, 1927. Sub-Section (3) of Section 59-A of theIndian Forest Act, 1927 (as amended by the West Bengal Amendment,1988) empowered the authorized officer to confiscate any timber orother forest produce along with all tools, ropes, chains, boats, vehiclesand cattle used in commission of the offence, if he was satisfied that aforest offence had been committed. Section 59-A(3) of the said Actreads as under:-

“(3) Where any timber or other forest producewhich is the property of the State Government isproduced before an Authorised Officer under Sub-section 1 and Authorised Officer is satisfied that aforest offence has been committed in respect of suchproperty, he may, whether or not prosecution isinstituted for the commission of such offence, orderconfiscation of the property together with all tools,ropes, chains, boats, vehicles and cattle used incommitting the offence.”

30.It is clear that the import of Section 59-A(3) is similar to theimport of Section 59(2) of the Excise Act. The Supreme Court hadconsidered the aforesaid provision and had held as under: -

“10. On fair reading of the provision it is clear thatin case where any timber or other forest producewhich is the property of the State Government isproduced under sub-section (1) and an AuthorisedOfficer is satisfied that forest offence has beencommitted in respect of such property he may pass

order of confiscation of the said property (forestproduce) together with all tools, ropes, chains, boats,vehicles and cattle used in committing the offence.The power of confiscation is independent of anyproceeding of prosecution for the forest offencecommitted. This position is manifest form the Statuteand has also been held by this Court in DivisionalForest Officer and Anr. v. G.V. Sudhakar Rao andOrs.: 1985 4 SCC 573.”

31.This Court is of view that the ratio decidendi of the aforesaiddecisions are squarely applicable in this case as well. Section 33 of theAct,interalia,providesthattheoffenceforimportingandtransporting any intoxicant in contravention to the provisions of theExcise Act would be punishable with imprisonment, which shall notbe less than six months but which may extend to three years and finewhich shall not be less than fifty thousand rupees but which mayextend to one lakh rupees. Thus, the person, who is alleged to havecommitted that offence, is required to be tried by the MetropolitanMagistrate in terms of Section 69 of the Excise Act. The saidproceedingsarecompletelyindependentoftheconfiscationproceedings as contemplated under Section 58 and 59 of the ExciseAct. The decision whether any thing is required to be confiscated interms of Section 58 and 59 of the Excise Act depends on whether theDeputy Commissioner of Excise is satisfied whether an offence underthe Excise Act has been committed.

32.Even in cases where certain minor offences are compounded interms of Section 57 of the Excise Act, it is expressly provided that theseized material shall not be released but would be disposed of in the

manner as may be prescribed. Further, Section 61 expressly providesthat no court would have the jurisdiction to make any further order inrespect of the specified property, which is used in committing anyoffence as contemplated under the Excise Act.

33.It is, however, necessary to clarify that the order of confiscationwould not, in any manner, prejudice the person accused in anycriminal case instituted for prosecuting him for committing an offenceunder the Excise Act.

34.The standard of proof required to bemet in criminalproceedings is also not the same as is required for confiscation underSection 59 of the Act. It is well settled that confiscation proceedingsare in the nature of civil proceedings and the standard of proof ispreponderance of probabilities. [See: State of West Bengal and Ors.vs. Sujit Kumar Rana (supra), Enquiry Officer -Forest RangeOfficer v. Md Saheb: (2016) 4 CHN 713, Shiv Baba Industry Lalpurvs. State of U.P. and Ors.: Civil Misc. Writ Petition (Matters UnderArticle 227) No. 3626 of 2018, The Divisional Forest Officer,Kothamangalam and Ors. vs. Biju: CRP No. 407 of 2016,Gunwantlal Godawat v. Union of India & Anr.: (2018) 12 SCC 309]

35.In view of theabove, thecontentionthattheDeputyCommissioner (Excise) was required to take prior permission of thelearned M.M. before confiscating the vehicle in question by passingthe impugned order dated 12.01.2012, is unmerited.

36.In this regard, it is also relevant to refer to the decision of the

Supreme Court in State (NCT of Delhi) v. Narender (supra). In thatcase, vehicle carrying liquor unlawfully was seized. The owner ofthe said vehicle (one Narender) filed an application before theMetropolitan Magistrate for release of the vehicle on security. Thelearned M.M. passed an order rejecting the said application and heldthat it had no power to release the vehicle seized in connection with anoffence under the Excise Act. Narender filed another applicationclaiming similar relief, which was also rejected by the learned M.M.on the ground that it would amount to reviewing the earlier orderrejecting similar application. Narender challenged the said order byfiling an application under Section 482 of the Code of CriminalProcedure before this Court. It is important to note that this Courtallowed the said application, inter alia, on the ground that the vehiclein question had been seized by police and not confiscated and,therefore, Section 58 of the Excise Act would not apply. Aggrieved bythe same, the State preferred Special Leave Petition before theSupreme Court. The Court granted leave and allowed the appeal. Therelevant extract of the said decision is set out below:-

“9. From plain reading of Section 33(1)(a) of theAct, it is evident that the transportation of anyintoxicant in contravention of the provisions of the Actor of any rule or order made or notification issued orany licence, permit or pass, is punishable and anyvehicle used for carrying the same, is liable forconfiscation under Section 58(d) of the Act.

10. Section 59 of the Act deals with the power ofconfiscation of the Deputy Commissioner in certaincases.Section59(1)thereofprovidesthat

notwithstanding anything contained in any other lawwhere anything liable for confiscation under Section58 is seized or detained, the officer seizing anddetaining such thing shall produce the same before theDeputy Commissioner. On production of the seizedproperty, the Deputy Commissioner, if satisfied thatthe offence under the Act has been committed, mayorder confiscation of such property. Therefore, underthe scheme of the Act any vehicle used for carrying theintoxicant is liable to be confiscated and on seizure ofthe vehicle transporting the intoxicant, the same isrequiredtobeproducedbeforetheDeputyCommissioner, who in turn has been conferred withthe power of its confiscation.

11. Section 61 of the Act puts an embargo onjurisdiction of courts, the same reads as follows:

“61. Bar of jurisdiction in confiscation.—

Wheneveranyintoxicant,material,still,utensil,implement,apparatusoranyreceptacle, package, vessel, animal, cart, orother conveyance used in committing anyoffence, is seized or detained under this Act,no court shall, notwithstanding anything to thecontrary contained in any other law for thetime being in force, have jurisdiction to makeany order with regard to such property.”

According to this section, notwithstandinganything contrary contained in any other lawfor the time being in force, no court shall havejurisdiction to make any order with regard tothe property used in committing any offenceand seized under the Act.”

12. It is relevant here to state that in the present case,the High Court, while releasing the vehicle on securityhas exercised its power under Section 451 of the Code.

True it is that where any property is produced by anofficer before criminal court during an inquiry ortrial under this section, the court may make anydirection as it thinks fit for the proper custody of suchproperty pending the conclusion of the inquiry or trial,as the case may be. At the conclusion of the inquiry ortrial, the court may also, under Section 452 of theCode, make an order for the disposal of the propertyproduced before it and make such other direction as itmay think necessary. Further, where the property is notproduced before criminal court in an inquiry or trial,the Magistrate is empowered under Section 457 of theCode to make such order as it thinks fit.

13. In our opinion, the general provision of Section451 of the Code with regard to the custody anddisposal of the property or for that matter bydestruction, confiscation or delivery to any personentitled to possession thereof under Section 452 of theCode or that of Section 457 authorising Magistrate tomake an order for disposal of property, if seized by anofficer and not produced before criminal court duringan inquiry or trial, however, has to yield where astatute makes special provision with regard to itsconfiscation and disposal.

14. We have referred to the scheme of the Act andfrom that it is evident that the vehicle seized has to beproduced before the Deputy Commissioner, who inturn has been conferred with the power of itsconfiscation or release to its rightful owner. Therequirement of production of seized property beforethe Deputy Commissioner under Section 59(1) of theAct is, notwithstanding anything contained in anyother law, and, so also is the power of confiscation.Not only this, notwithstanding anything to the contrarycontained in any other law for the time being in force,no court, in terms of Section 61 of the Act, hasjurisdiction to make any order with regard to the

property used in commission of any offence under theAct.

15. In the present case, the legislature has used nonobstante clause not only in Section 59 but also inSection 61 of the Act. As is well settled, non obstanteclause is legislative device to give effect to theenacting part of the section in case of conflict over theprovisions mentioned in the non obstante clause.Hence, Sections 451, 452 and 457 of the Code mustyield to the provisions of the Act and there is noescape from the conclusion that the Magistrate or forthat matter the High Court, while dealing with the caseof seizure of vehicle under the Act, has any power topass an order dealing with the interim custody of thevehicle on security or its release thereof.”

37.In view of the law as authoritatively explained by the SupremeCourt in NCT of Delhi v. Narender (supra), the petitioner’scontention that prior permission of the learned M.M. was required bythe Deputy Commissioner (Excise) before confiscating the vehicle inquestion, is rejected.

38.It is also relevant to refer to the Delhi Excise Rules, 2010. Rule132 of the Delhi Excise Rules, 2010 provides for the manner ofdisposal of confiscated goods. In terms of Sub-Rule (3) of Rule 132Vehicles and Animals are required to be put to auction and sold to thehighest bidder within period of one month for such extended periodas deemed fit by the Excise Commissioner. Rule 134 of the said Rulesalso expressly provides that if the order of confiscation is reversed onan appeal, the sale proceeds thereof after deduction of the necessaryexpenditure incurred in its maintenance would be returned along with

interest @ 6% per annum. Rule 134 of the said Rule is set out below:-

“134. Action when order of confiscation ofgoods and its sale is reversed in appeal.- If anorder of confiscation and sale of liquor, animal orvehicle be reversed on appeal, such liquor, animalor vehicle or the sale proceeds thereof, if sold andthe balance of the amount, if any, deposited forfeeding upkeep or safe custody thereof afterdeduction of the expenditure, if any, incurred in itsmaintenance shall be returned along with interestat the rate of six per cent per annum, to the ownerthereof, or his duly authorised agent, if claimedwithin two months from such order.”

39.Thus, even in cases where the order of confiscation has notattained finality on account of it being challenged, the seized vehiclecan be sold and it is not necessary to withhold the sale. In the presentcase, the proceedings for confiscation have attained finality and thepetitioner has exhausted all his remedies of appeal against theimpugned order of confiscation.

40.ThedecisionofthisCourtinVarunveerv.FinancialCommissioner, Delhi & Ors. (supra) is of little assistance to thepetitioner. The said decision turned on its own facts. The principalquestion involved in the said case was whether the involvement of avehicle in an offence under Section 33 of the Excise Act was sufficientto warrant its confiscation. This Court answered the question in thenegative and held that the mere fact that the vehicle was used totransport liquor would not be sufficient for confiscating the same, ifthe owner of the vehicle is able to establish that he/she is not involved

in the said offence. In that case, there appeared to be no dispute thatthe petitioner was not involved in commission of the offence underSection 33 of the Excise Act and had no knowledge that his vehiclewas used in transporting liquor from Haryana.

41.At this stage, it is also relevant to refer to Section 52 of theExcise Act, which reads as under:-

“52. Presumption as to commission of offence incertain cases

(1) In prosecution under section 33, it shall bepresumed, until the contrary is proved, that theaccusedpersonhascommittedtheoffencepunishable under that section in respect of anyintoxicant, still, utensil, implement or apparatus, forthe possession of which he is unable to accountsatisfactorily.

(2) Where any animal, vessel, cart or other vehicle isused in the commission of an offence under this Act,and is liable to confiscation, the owner thereof shallbe deemed to be guilty of such offence and suchowner shall be liable to be proceeded against andpunished accordingly, unless he satisfies the courtthat he had exercised due care in the prevention ofthe commission of such an offence.”

42.A plain reading of Section 52(2) of the Excise Act indicates thatit provides rebuttable presumption that the owner, of vehicle whichis used in commission of an offence under the Excise Act, is guilty ofsuch an offence. It is open for the owner of such vehicle to satisfythe concerned Court that he had exercised due care in prevention ofcommission of the offence.

43.In the facts of the present case, the petitioner has been unable tosatisfy the Deputy Commissioner (Excise) that he was not involved inthe offence. The Deputy Commissioner has not accepted thepetitioner’s explanation that he had lent the vehicle to his friend toenable him to attend the last ceremonies of his relative. It was notedthat the petitioner had not even provided the complete address anddetails of the said friend. Moreover, the FIR indicated that thepetitioner was driving the vehicle in question when it was seized.

44.In view of the above, this Court finds no reason to interfere withthe impugned orders. The petition is unmerited and is, accordingly,dismissed. The pending application is also disposed of.

JANUARY 09, 2020pkv

VIBHU BAKHRU, J