TMI Blog2008 (4) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... civil) 905 of 2002 With (CIVIL APPEAL NO.291 OF 2004, CIVIL APPEAL NO.3575 OF 2002, CIVIL APPEAL NO.4562 of 2002 and CIVIL APPEAL NO.906 of 2002) - - - Dated:- 21-4-2008 - Dr. ARIJIT PASAYAT P. SATHASIVAM, JJ. JUDGMENT Dr. ARIJTI PASAYAT, J. 1. In all these appeals challenge is to the judgment of the Rajasthan High Court at Jodhpur dismissing the writ petitions filed under Articles 226 and 227 of the Constitution of India, 1950 (in short the Constitution ). Challenge in the writ petitions was to the vires of certain provision of the Rajasthan Excise Act, 1950 (in short the Act ). Essentially the prayers were as follows: "(a) appropriate writ, order or direction, incorporation of Sec. 54(ka) and Sub-Sections (4) to (9) in Section 69 of the Excise Act may be declared ultra-vires and be struck down; (b) by an appropriate writ, order or direction, amendment in the Excise Act, 1950 by incorporation of Section 9B may be declared ultravires and be struck down; (c) by a further appropriate, writ, order or direction impugned order dated 16.5.2000, passed by respondent No. 2 may be declared invalid and may be quashed and set aside; (d) Pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was that in view of the aforesaid provisions the criminal courts were not invoking jurisdiction and the power of the court has been taken away. Challenge to Section 54A and Section 69(6) were made on the ground that they are unconstitutional, arbitrary, unreasonable and violative of Articles 14, 19, 20, 21 and 301 of the Constitution. It was submitted that the powers conferred on judicial courts by virtue of Sections 451 to 457 Cr.P.C. has been curtailed or have been taken away and indirectly the power of revision of Sessions judge or the High Court and inherent power of the High Court under Section 482 Cr.P.C. has been curtailed. 7. In response, learned counsel for the State made the reference to Sections 4,5, 9 Cr.P.C. and Section 41 of the Indian Penal Code, 1860 (in short the IPC ). 8. The objects and reasons of the Rajasthan Excise Amendment Act, 2000 need to be noted. The same is as follows: "Statement of Objects and Reasons: The incidence of unauthorized transportation of excisable articles had increased in recent past and it was noticed that owners of such vehicles were indulging in these activities with impunity. It was also noticed that the vehicl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government or any of the undertakings, shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded and be- punished accordingly unless he satisfies the court that he had no reason to believe that such offence was being or likely to be committed and he had exercised due care in the prevention of the commission of such an offence. 69. What things are liable to confiscation- (1) Whenever an offence punishable under this Act has been committed (a) every excisable article 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 excisable article lawfully imported transported, manufactured held in possession or sold alongwith or in addition to any excisable article liable to confiscation under clause (a), (d), every receptacle, package or covering in which any article 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, and (e) every animal, cart, vessel, raft or other conveyance used in carrying such receptacle o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said means of conveyance and if such owner satisfies the Excise Commissioner or the officer authorised by the State Government in this behalf that he had no reason to believe that such offence was being or likely to be committed and he had exercised due care in the prevention of the commission of such an offence, the Excise Commissioner or the officer authorised by the State Government in this behalf, may not confiscate the said means of conveyance. Provided further that where such means of conveyance is owned by the Central Government or any State Government or any of their undertaking, no order of confiscation of-such means of conveyance shall be passed by the Excise Commissioner or the officer authorised by the State Government in this behalf and the matter shall be referred to the State Government by the Excise Commissioner or the officer authorised by the State Government -in this behalf, for making such orders regarding means of conveyance as the State Government may deem fit. Provided also that before ordering confiscation under this, sub-section the owner of the means of conveyance, referred to in clause (e) of sub-sec. (1), may be given an option to pay in lieu o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the infliction of any punishment to which the person affected thereby is liable under this Act." Section 9B of the Act which was introduced in the Gazette Notification dated 31.7.1998 reads as follows: "Bar of jurisdiction of civil courts; No Civil Court shall have jurisdiction to entertain any suit or proceeding to set aside or modify; (a) any original order passed by any of the officer competent to do so under the provisions of this Act; (b) any order passed under or referred to in Section 9A." Article 254 of the Constitution reads as follows: "(1) If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any,; provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the Provisions of clause (2),the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void. (2) Where a law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral provisions falling in the Concurrent List, which empower both Parliament and the State legislatures to enact the law, the assent given by the President made Sections 57-A and 57-B valid. The Gazette Notification of the Amendment Act has been placed before us which shows that the President has given his assent to the Amendment Act on 1-12-1984. Therefore, by operation of proviso to clause (2) of Article 254, the Amendment Act prevails over the relevant provisions in the Indian Evidence Act, IPC and the Code in relation to the State of Kerala." 11. This is a complete answer to most of the submissions made by the appellants. 12. In State of Karnataka v. K. Krishnan (2000(7) SCC 80) this court while considering a case of forest offence under the Karnataka Forest Act, 1963, observed that the provisions of the Act should be strictly complied with and generally the seized forest produce and the vehicle, boat, tools etc. used in commission of forest offence should not be released and even if the Court is allowed to release the same, the authorized officer must specify reasons therefor and must insist on furnishing of bank guarantee as the minimum condition. In that case the fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object and purpose of the statute and the mischief it seeks to guard, this Court held that the word "release" in Section 6E is used in the limited sense of release for sale etc., so that the same becomes available to the consumer public. It was further held: "No unqualified and unrestricted power has been conferred on the Collector of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood completed and before the termination of the prosecution in acquittal of the offender. Such a view would render clause (b) of Section 7(1) totally nugatory and would completely defeat the purpose and object of the Act. The view that the Act itself contemplates a situation which would render Section 7(1)(b) otiose where the essential commodity is disposed of by the Collector under Section 6A(2) is misconceived. Section 6A does not empower the Collector to give an option to pay, in lieu of confiscation of essential commodity a fine not exceeding the market value of the commodity on the date of seizure, as in the case of any animal, vehicle, vessel or other conveyance seized along with the essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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