Mustafa Vs The State of Uttar Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6438 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 11110 OF 2018)

MUSTAFA .....APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) Leave granted.

2) The owner of seized truck is in appeal aggrieved against an order passed by the High Court of Judicature at Allahabad on October 30,

2017, whereby the order passed by the Collector on 12.11.2016

and by the District Judge on 3.8.2017 confiscating the Vehicle for

violation of Sections 60 and 72 of the United Provinces Excise Act,

19101, remained unsuccessful.

3) An FIR was lodged on November 17, 2015 for the offences under Sections 60 and 72 of the Act and Sections 420, 467, 468 and 471

of the Indian Penal Code, 18602 in respect of seizure of 154 cartons

of illicit liquor, one .315 bore country made pistol with two .315

bore live cartridges, by a team of Excise Department and the Police 1 for short, ‘Act’ 2 for short, ‘IPC’

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Officials. The investigation was taken up by Mr. Satyaveer Singh,

Sub-Inspector.

4) On December 17, 2015, a notice was served upon the appellant by the District Magistrate, who is also the Collector of the District to

show cause as to why the seized truck be not confiscated. The

show cause notice in respect of the Santro Car meant for Nisar

Ahmed son of Nazir was issued as to why the car be not

confiscated.

5) On an application filed by Nisar Ahmed, the Chief Judicial Magistrate, Muzaffarnagar on March 15, 2016 passed an order of

release of Santro Car.

6) The appellant filed objections before the District Magistrate on September 23, 2016 in response to the show cause notice served

on him wherein the appellant sought release of the Vehicle as it is

sole means of his livelihood and that he will suffer financial loss. In

pursuance of such show cause notice, the District Magistrate

passed an order of confiscation and 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 to pay

Rs.4,50,000/- as market value of the truck. Nisar was given an

option to pay Rs.1,20,000/- to seek release of the car.

7) The appellant filed an appeal before the learned District Judge, a

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judicial authority appointed by the State Government, which was

dismissed on August 3, 2017. Further, challenge to the said order

remained unsuccessful before the High Court vide the order

impugned in the present appeal.

8) The High Court held that in terms of Section 5 of the Criminal Procedure Code, 19733, the Act is special and local Act to deal with

the properties seized under the Act, therefore, the provisions

contained in the Code with regard to disposal of property can be

used only to the extent they are not inconsistent with Section 72 of

the Act. The High Court relied upon an order passed by this Court

in State (NCT of Delhi) v. Narender4.

9) Ms. Preetika Dwivedi, learned counsel for the appellant has vehemently argued that since FIR has been registered in respect of

transportation of illicit liquor, therefore, the Magistrate who is

competent to 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 of confiscation of the vehicle. Thus, it is argued

that the Collector has no jurisdiction to pass an order of

confiscation of the vehicle. Reliance is placed upon judgment in

State of Madhya Pradesh & Ors. v. Madhukar Rao5. It is also

argued that judgment in Narender is not applicable to the facts of

the present case, as in the aforesaid case, the jurisdiction of all

courts was specifically excluded but that is not the situation in the 3 for short, ‘Code’ 4 (2014) 13 SCC 100 5 (2008) 14 SCC 624

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present case.

10) On the other hand, Mr. Tanmaya Agarwal, learned counsel for the respondents argued that confiscation of a vehicle is an

independent proceeding, independent of prosecution of the

offences under the IPC. The confiscation of the vehicle engaged in

transportation of illicit liquor exclusively falls within the jurisdiction

of the Collector in terms of the various provisions of the Act.

Learned counsel relied upon judgment in Yogendra Kumar

Jaiswal & Ors. v. State of Bihar & Ors.6 as also in The State of

Madhya Pradesh v. Uday Singh7.

11) Before we consider respective arguments of the learned counsel for the parties, some of the provisions from the Act would be

necessary to reproduce to appreciate the arguments. Chapter IX of

the Act confers power on the authorised officers of the Excise

Department and the competent Police Officers to investigate into

the offences punishable under the Act. Section 50 of the Act

confers power of arrest, seizure and detention on the specified

Excise and Police Officers whereas Chapter X deals with offences

and penalties which can be imposed for the violation of the

provisions of the Act. Section 72 of the Act deals with the things

which are liable for confiscation. The relevant provisions read as

under: -

“49. Powers of certain officers to investigate into offences punishable under this Act. - (1) A police

6 (2016) 3 SCC 183 7 AIR 2019 SC 1597

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officer not below the rank of Sub-Inspector and an officer of the Excise Department not below such rank as the State Government may prescribe, may investigate into any offence punishable under this Act committed within the limits of the area in which such officer exercises jurisdiction.

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

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

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70. Cognizance of offence. - (1) No Magistrate shall take cognizance-

(a) of an offence punishable under Section 60, Section 63, Section 64-A, Section 65 except on his own knowledge or suspicion or on the complaint or report of an Excise Officer; or

(b) of an offence punishable under Section 64, Section 66, Section 67 or Section 68 except on the complaint or report to the Collector or an Excise Officer

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authorised by him by a general or special order in that behalf.

(2) Except with the special sanction of the State Government no magistrate shall take cognizance of any offence punishable under this Act, unless the prosecution is instituted within a year after the date on which the offence is alleged to have been committed.

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72. What things are liable to confiscation. - (1) Whenever an offence punishable under this Act has been committed-

(a) every intoxicant 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 intoxicant lawfully imported, transported, manufactured, held in possession or sold along with or in addition to any intoxicant liable to confiscation under clause (a);

(d) every receptacle, package and covering in which any intoxicant 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;

(e) every animal, cart, vessel or other conveyance used in carrying such receptacle or package shall be liable to confiscation.

(2) Where anything or animal is seized under any provision of this Act and the Collector is satisfied for reasons to be recorded that an offence has been committed due to which such thing or animal has become liable to confiscation under sub-section (1), he may order confiscation of such thing or animal “whether or not a prosecution for such offence has been instituted”:

Provided that in the case of anything (except an intoxicant) or animal referred to in sub-section (1), the owner thereof shall be given an option to pay in lieu of

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its confiscation such fine as the Collector thinks adequate not exceeding its market value on the date of its seizure.

(3) Where the Collector on receiving report of seizure or on inspection of the seized things, including any animal, cart, vessel or other conveyance, is of the opinion that “any such things or animal is subject to speedy wear and tear or natural decay or it is otherwise expedient in the public interest so to do”, he may order such things (except an intoxicant) or animal to be sold at the market price 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 maintained by the Collector under sub-section (2) or on review under sub-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 offence in respect of which the thing or the animal is seized, “the order of the court so requires”;

the sale proceeds after deducting the expenses of the sale shall be paid to the person found entitled thereto.

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

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

(ii) an opportunity of making a representation in writing within such 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 order confiscating any animal, cart, vessel, or other conveyance shall be made if the owner thereof proves to the satisfaction of the Collector that it was used in carrying the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the

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person in charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.

(c) Where on an application in that behalf being made to the Collector within one month from any order of confiscation made under sub-section (2), or as the case may be, after issuing notice on his own motion within one month from the order under the sub-section refusing confiscation to the owner of the thing or animal seized or to the person from whose possession it was seized, to show cause why the order should not be reviewed, and after giving him a reasonable opportunity of being heard, the Collector is satisfied that the order suffers from a mistake apparent on the face of the record including any mistake of law, he may pass such order on review as he thinks fit.

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

(7) Any person aggrieved by an order of the confiscation under subsection (2) or sub-section (6) may, within one month from the date of the communication to him of such order, appeal to such judicial authority as the State Government may appoint in this behalf and the judicial authority shall, after giving an opportunity to 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 to which such confiscation was ordered the thing or animal “shall subject to the provisions of sub- section (4) be disposed of in accordance with the order of the Court”.

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

(emphasis supplied)

12) The argument of learned counsel for the appellant is based upon the expression “order of the court so requires” appearing in Section

72(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 a

prosecution is instituted for an offence in relation to which such

confiscation was ordered, the thing or animal shall be disposed of

in accordance 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 below the rank as the State Government may prescribe has been granted the

power to investigate; to arrest and detain any intoxicant or other

article which he has reason to believe to be liable to confiscation

under the Act. Therefore, the power of an Excise Officer is in

addition to power conferred on the Police Officer to investigate, to

seize articles and vehicles involved in the commission of crime. In

terms of Section 70 of the Act, no Magistrate can take cognizance

except on his own knowledge or suspicion or on the complaint or

report of the Excise Officer. The cognizance can also be taken on

the complaint or report to the Collector or an Excise Officer

authorised by him by general or special order. Sub-section (2) of

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Section 70 of the Act categorically puts an embargo that the

Magistrate cannot take cognizance without special sanction of the

State Government and unless the prosecution is instituted within a

year.

14) Section 72(1) of the Act confers power of confiscation of animal, cart, vessel or other conveyance used by means of which an

offence has been committed. Sub-section (2) of Section 72 of the

Act confers power upon the Collector to order confiscation of such

thing or animal “whether or not a prosecution for such offence has

been instituted”. Therefore, the power of the Collector to

confiscate the seized thing or animal is independent of

prosecution. This Court in Yogendra Kumar Jaiswal was dealing

with the confiscation of property under the Orissa Special Courts

Act, 2006 and the Bihar Special Courts Act, 2009. It was held that

such confiscation is independent of result of prosecution under the

Prevention of Corruption Act, 1988. The Court held as under:

“146. In the case at hand, the entire proceeding is meant to arrive at the conclusion whether on the basis of the application preferred by the Public Prosecutor and the material brought on record, the whole or any other money or some of the property in question has been acquired illegally and further any money or property or both have been acquired by the means of the offence. After arriving at the said conclusion, the order of confiscation is passed. The order of confiscation is subject to appeal under Section 17 of the Orissa Act. That apart, it is provided under Section 19 where an order of confiscation made under Section 15 is modified or annulled by the High Court in appeal or where the person affected is acquitted by the Special Court, the money or property or both shall be returned to the person affected. Thus, it is basically a confiscation

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which is interim in nature. Therefore, it is not a punishment as envisaged in law and hence, it is difficult to accept the submission that it is a pre-trial punishment and, accordingly, we repel the said submission.

xx xx xx

149. We have already held that confiscation is not a punishment and hence, Article 20(1) is not violated. The learned counsel for the State would lay stress on the decision in State of A.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 for consideration was: when the disciplinary proceeding was initiated one type of punishment was imposable and when the punishment was imposed due to amendment of rule, a different punishment, which was a greater one, was imposed. The High Court opined that the punishment imposed under the amended rule amounted to imposition of two major penalties which was not there in the old rule. Dealing with the issue the Court referred to the rule that dealt with major penalties and the rule- making power. Reference was made to the decision in Pyare Lal Sharma v. J&K Industries Ltd. [Pyare Lal Sharma v. J&K Industries Ltd., (1989) 3 SCC 448 : 1989 SCC (L&S) 484] wherein it has been stated that no one can be penalised on the ground of a conduct which was not penal on the date it was committed. Thereafter, the two-Judge Bench referred to the authority in K. Satwant Singh v. State of Punjab [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ 410] wherein it has been held thus: (Gandhi case [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 imprisonment was, in fact, imposed and the total of fines imposed, whether described as ‘ordinary’ or ‘compulsory’, was not less than the amount of money procured by the appellant by means of his offence. Under Section 420 of the Penal Code an unlimited amount of fine could be imposed. Article 20(1) of the Constitution is in two parts. The first part prohibits a conviction of any person for any offence except for violation of law in force at the time of the commission of the act charged as an offence. The latter part of the article

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prohibited the imposing of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The offence with which the appellant had been charged was cheating punishable under Section 420 of the Penal Code which was certainly a law in force at the time of the commission of the offence. The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by Section 420. The sentence of fine also was not greater than that which might have been inflicted under the law which had been in force at the time of the commission of the offence, as a fine unlimited in extent could be imposed under the section.’” (K. Satwant Singh case [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ 410] , AIR p. 275, para 28)”

15) Recently, this Court in Uday Singh referred to earlier judgments of this Court in State of Madhya Pradesh and Others v. Kallo

Bai8 and Divisional Forest Officer and Another v. G. V.

Sudhakar Rao and Others9 to approve the argument that

criminal proceedings are distinct from confiscation proceedings.

The Court held as under:

“22. In 2017, a similar view has been taken by another two judge Bench of this Court in Kallo Bai (supra) while construing the provisions of the Madhya Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam, 1969. By virtue of the amendments made to the Adhiniyam, Sections 15-A to 15-D were introduced to provide for confiscation proceedings in line with the provisions contained in the Forest Act as amended in relation to the State of Madhya Pradesh. Relying on the earlier decisions of this

8 (2017) 14 SCC 502 9 (1985) 4 SCC 573

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Court including GV Sudhakar Rao (supra), Justice NV Ramana, speaking for the two judge Bench held:

“23. Criminal prosecution is distinct from confiscation proceedings. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the prosecution is to punish the offender. The scheme of the Adhiniyam prescribes an independent procedure for confiscation. The intention of prescribing separate proceedings is to provide a deterrent mechanism and to stop further misuse of the vehicle.”

16) The proviso to sub-section (2) of Section 72 of the Act gives an option to the owner to pay such fine as the Collector thinks

adequate not exceeding its market value in lieu of its confiscation.

It, thus, transpires that it is the Collector who has been conferred

exclusive jurisdiction to order confiscation of a thing or animal.

The Collector has been further empowered to impose fine not

exceeding the market value of the thing on the date of seizure.

Thus, the power of confiscation of a vehicle or a thing is absolutely

vested with the Collector except in certain circumstances, instead

of confiscation, the fine, not exceeding the market value, 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 of the

seized things, including any animal, cart, vessel or other

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conveyance, which are subject to speedy wear and tear or natural

decay or it is expedient in public interest to do so, the Collector

may order such things or animal, except an intoxicant, to be sold

by auction or otherwise. Therefore, in case any seized thing is

subject to speedy wear and tear or natural decay, the Collector is

empowered to sell the same by public auction. The power to sell

the thing or animal pending confiscation proceedings is also

contemplated if it is expedient in public interest to do so. Such

provision empowers the Collector to order the sale of the vehicle or

animal if he is satisfied that it is expedient in public interest even

before an order of confiscation is passed by him.

18) The distribution of sale proceeds after the thing or animal is sold, is contemplated by sub-section (4) of Section 72 of the Act. It deals

with a situation when no order of confiscation is ultimately passed

or maintained by the Collector or an order passed on appeal under

sub-section (7) so requires. Similar power is conferred to distribute

the sale proceeds in terms of the order of the Court in case of a

prosecution instituted 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 or Animal in terms of sub-section (3)

of Section 72 of the Act. In other words, 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 be dealt with in the

manner prescribed in sub-section (4) of Section 72 of the Act

including an order of the Court dealing with prosecution instituted

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for the offence.

19) Sub-section (5) of Section 72 of the Act deals with the procedure and the limitations on the power of the Collector to sell the seized

thing including any animal, cart, vessel or other conveyance in

terms of sub-section (3) of Section 72 of the Act. Sub-section (6) of

Section 72 of the Act confers power of review on the Collector of an

order passed under sub-section (2).

20) Sub-section (7) of Section 72 of the Act confers a right of appeal to a judicial authority, as the State Government may appoint, against

an order of confiscation under sub-section (2) or sub-section (6) of

Section 72 of the Act. In other words, an order of confiscation,

other than in respect of seized things which are subject to speedy

wear and tear or natural decay falling in sub-section (3) of Section

72 of the Act, is subject to appeal to the judicial authority. No

appeal is provided in respect of an order passed under sub-section

(3) of Section 72 of the Act in respect of seized things or animal

which are subject to speedy wear and tear or natural decay or

otherwise expedient in the public interest.

21) We find that in terms of Section 4 of the Code, trial of offences under IPC are to be investigated, inquired into, tried, and otherwise

dealt with according to the provisions contained in the Code. It

further provides that all offences under any other law shall be

investigated, inquired into, tried, and otherwise dealt with

according to the same provisions, but subject to any enactment for

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the time being in force regulating the manner or place of

investigating, inquiring into, trying or otherwise dealing with such

offences. The offences under the Act in terms of sub-section (2) of

Section 4 of the Code are to be dealt with according to the

provisions of the Code but subject to the provisions of the Act

regulating the manner or place of investigating, inquiring into,

trying or dealing with such offences. Since the procedure of

confiscation of the vehicle is prescribed under the Act, it is the

provision of the Act which will be applicable and not Chapter XXXIV

of the Code. Section 5 of the Code saves special or local laws or

any special jurisdiction or power conferred, or any special form of

procedure prescribed, by any other law for the time being in force.

22) However, where a prosecution is instituted for an offence in relation to which confiscation was ordered, the things or animals

are to be disposed of in accordance with the order of the Court

subject to provisions of sub-section (4) of Section 72 of the Act.

The order passed by the Court where a prosecution is instituted for

the offence, in terms of sub-section (8) of Section 72 of the Act, is

subject to provisions of sub-section (4) of Section 72 of the Act.

Thus, the provision again deals with distribution of the sale

proceeds after confiscation on conclusion of prosecution.

23) The power of release of the property produced before any criminal court whether interim or final in terms of Sections 451, 452 or 457

of the Code will not be available to court except the order in

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respect of distribution of sale proceeds. Therefore, the power

under Sections 451, 452 or 457 of the Code available to criminal

court or Magistrate is inconsistent with the provisions contained in

the Act regarding disposal of the property not only in respect of

pending trial but also after the conclusion of the trial.

24) The argument raised that the judgment in Narender is not applicable to the present case cannot be accepted as the criminal

court before whom the prosecution is lodged, will not have

jurisdiction to release anything or animal whether interim or final

as the Act in question has provisions contrary to the provisions

contained in the Code. This Court in Narender relied upon the

judgment in State of Karnataka v. K. A. Kunchindammed10 and

held as under:

“13. 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.

14. 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,

10 (2002) 9 SCC 90

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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.

15. 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, Sections 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that 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.”

25) Though, Section 61 of the Delhi Excise Act, 2009 bars the jurisdiction of all Courts but, even in the absence of similar

provisions in the Act, the principle laid down is applicable in the

present case as the Act is inconsistent with the provisions of the

Code.

26) The confiscation of a vehicle found in illicit transportation of the liquor is an offence which can be investigated by an Excise Officer

as well as by a Police Officer. But the exclusive power of

confiscation is vested with the Collector in terms of sub-section (2)

of Section 72 of the Act. The sale proceeds of seized things or

Animal which are subject to speedy wear and tear or natural decay,

if sold, are required to be paid to the person found entitled thereto

in terms of sub-sections (4) and (8) of Section 72 of the Act.

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27) Sub-section (9) of Section 72 of the Act clarifies that no order of

confiscation made by the Collector shall prevent the infliction of

any punishment to which the person affected thereby may be

liable under this Act. Thus, the punishment consequent to the

prosecution is distinct from the order of confiscation passed by the

Collector.

28) In Madhukar Rao’s case, the provisions of the Code and that of the Wild Life (Protection) Act, 1972 were examined. The Court

found that the use of a vehicle in the commission of an offence

under the Act, without anything else would bar its interim release

appears to be quite unreasonable. The Court held that the

provisions of Section 50 of the Wild Life (Protection) Act, 1972 and

the amendments made thereunder do not in any way affect the

Magistrate’s power to make an order 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 that the use of a vehicle in the commission of an offence under the Act, without anything else would bar its interim release appears to us to be quite unreasonable. There may be a case where a vehicle was undeniably used for commission of an offence under the Act but the vehicle's owner is in a position to show that it was used for committing the offence only after it was stolen from his possession. In that situation, we are unable to see why the vehicle should not be released in the owner's favour during the pendency of the trial.”

29) We find that sub-section (3) of Section 72 of the Act confers power on the Collector for release of the vehicle if it is considered

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expedient in public interest apart from the fact, when anything or

animal is subject to speedy wear and tear or natural decay.

Therefore, the basis of the order in Madhukar Rao are not

applicable in the case in hand.

30) After examining the provisions of the Act, we hold that the Collector has exclusive jurisdiction to confiscate the vehicles and

in case the seized things are subject to speedy wear and tear or

natural decay, 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 of sale proceeds when the

seized thing is sold which is subject to wear and tear 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 a

prosecution of an offence is instituted in relation to which

confiscation was ordered, the thing or animal shall be disposed of

subject to the provisions of sub-section (4) of Section 72 of the Act

in accordance with the order of the Court. The order of the Court

in sub-section (8) of Section 72 of the Act is after conclusion of the

prosecution which is different from the seized things which are

subject to speedy wear and tear or natural decay as contemplated

by sub-section (3) of Section 72 of the Act.

31) In view of the above, we do not find any error in the order passed by the High Court which may warrant interference in the present

appeal. Since the High Court has decided the matter only on the

question of jurisdiction of the Collector to order confiscation, the

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matter is remitted back to the High Court to exercise power of

judicial review over the order of confiscation passed by the

Collector and as affirmed by the District Judge. The appeal is

disposed of accordingly.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; AUGUST 20, 2019.

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MUSTAFA Vs THE STATE OF UTTAR PRADESH

MUSTAFA Vs THE STATE OF UTTAR PRADESH