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.

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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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