Ved Prakash v. State Of U.P.

J.M.L Sinha, J.:— This revision arises out of the judgment and order dated 3rd July, 1981 passed by the Judicial Magistrate, Saharanpur in a case under Section 60 of the U.P Excise Act.

2. The facts giving rise to this revision can briefly be stated as under:—

“The Excise Authorities seized 40 bottles. 48 quarters and 12 cases of English Liquor together with a car No. UPS 7743, which was presumably being used for transport of the said Liquor. The present applicant moved an application under Section 457 of the Code of Criminal Procedure for the custody of the car being delivered to him. On the side of the prosecution it was represented that a report had been made about the seizure of the car and other articles to the Collector who was dealing with the same under Section 72(2) of the U.P Excise Act. On receipt of this information the Judicial Magistrate dismissed the application for delivery of the car to the applicant vide order dated 3rd July, 1981. Feeling aggrieved against it the applicant has preferred this revision.”

3. Section 72 of the Excise Act has been amended by U.P Act No. 13 of 1979 and the provisions contained in the present Section 72 are analogous to Section 6-A 6-B and 6-C of the Essential Commodities Act (as amended by the State Legislature sub-section (2) of Section 72 states that where anything or animal is seized under any provision of the Excise 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.

4. Sub-section (3) states that where the Collector is satisfied that anything seized is subject to speedy wear and tear or natural decay or it is otherwise expedient in public interest so to do, he may order it to be sold at the market price by auction or otherwise. Sub-section (5) of Section 72 states that before an order of confiscation is passed a notice in writing shall be issued to the person concerned informing him of the grounds on which such confiscation is proposed and affording him an opportunity of making a representation in writing within a reasonable time. Sub-section (6) of Section 72 contains a provision for the review of the order of confiscation order. Section 72(7) provides for an appeal against the order of confiscation. It will thus appear that Section 72 provides exhaustive procedure for dealing with the property that may be seized in connection with the commission of an offence under the U.P Excise Act.

5. Learned counsel for the applicant urged that even accepting that the Collector has complete powers to deal with the property seized in connection with the commission of an offence under the U.P Excise Act, the power of the Magistrate, before whom the prosecution is pending, is not taken away and if the magistrate exercises his jurisdiction to pass an order under Section 457 Cr. P.C it will prevail. In other words the argument is that the jurisdiction of the Magistrate under Section 457 Cr. P.C shall override the jurisdiction conferred on the Collector under Section 72 of the U.P Excise Act. The argument fails to impress me.

6. Section 5 of the Code of Criminal Procedure reads as follows:—

“Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

7. There can be no controversy about the fact that the U.P Excise Act is a ‘local law’ within the meaning of that expression as used in Section 5 of the Criminal Procedure Code. Section 72 of that Act prescribes a special form of procedure for dealing with the property seized under the Excise Act and confers power of jurisdiction on the Magistrate to deal with the same. In view of the clear provisions contained in Section 5 of the Criminal Procedure Code, the provision contained therein regarding the disposal of property, can be used only to the extent they are not inconsistent with Section 72 of the U.P Excise Act. Sub-section 4(c) of Section 72 says that if anything is sold under sub-section (3) the sale proceeds shall be disposed of in accordance with such order as the Magistrate trying the case may choose to pass at the end. Sub-section (8) provides that where the 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. It would mean that if the article in question is sold by the Collector under sub-section (3), then the court seized of the criminal case shall have jurisdiction to pass orders with respect to the sale proceeds only. If, however, the Collector has merely ordered confiscation under sub-section (1) and the sale of the property has not taken place, the Magistrate will also have jurisdiction, at the end of the trial, to pass orders regarding the disposal of the property and, despite the order of confiscation by the Collector, the property shall be handed over to such party as may be directed by the Court.

8. There can be yet another situation in which the order of the Magistrate will prevail. It will be where the criminal case is disposed of by the Court before the Collector is able to pass final orders under Sub-section (1) of Section 72. In such a case, in my opinion, the court shall have the jurisdiction to pass such orders regarding the disposal of property as it may deem fit and, thereafter, the Collector shall have no jurisdiction to further deal with the property.

9. It may be argued that since the words used in sub-section (8) are where a prosecution is instituted for the offence in relation to which such confiscation was ordered, indicate that sub-section (8) shall come into play only after the confiscation has been ordered. To my mind, however, it cannot be so. If even after the confiscation it is the order of the Court which shall be decisive regarding the custody or disposal, where is the sense in continuing proceedings for confiscation after final orders are passed by the court, including orders regarding custody and disposal of property. Sub-section (8) has been couched in the existing language only because the legislature thought that the proceedings before the Collector being of summary nature, he shall always be able to finalise the same before the court is able to decide the criminal case.

10. In the case in hand, however, the Collector is seized of the matter under Section 72 Cr. P.C and the disposal of the case is still far off. It is, therefore not open to the Magistrate at this stage to pass any orders regarding the disposal of the property. The application filed before him under Section 457 of the Criminal Procedure Code was, therefore, rightly rejected.

11. This revision accordingly fails and is hereby dismissed.