TMI Blog2003 (3) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (3) provides that when an offence covered by Clause (a) or Clause (b) of Sub-section (1) is committed and the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk litres, all intoxicants, articles implements, utensils, materials, conveyance etc., in respect of or by means of which the offence is committed, shall be liable to be seized and confiscated. Section 46 (1) of the Act has been recast to provide for confiscation of certain articles and conveyance etc. Section 47 (1) further provides that where in any case tried by him the Magistrate, decides that anything is liable to confiscation under Section 46, he shall order confiscation of the same: Provided that where any intimation under Clause (a) of Sub-section (3) of Section 47-A has been received by the Magistrate, he shall not pass any order in regard to confiscation as aforesaid until the proceedings pending before the Collector under Section 47-A in respect of thing as aforesaid have been disposed of, and if the Collector has ordered confiscation of the same under Sub-section (2) of Section 47-A, the Magistrate shall not pass any order in this regard. 3. Sections 47-A t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appeal aggrieved by the final order by the appellate authority under Sub-section (3) of Section 47-B, may, within 30 days of such order submit a petition or revision solely on the ground of illegality of such order to the Court of Session within the sessions division. (2) The Court of Session may, if it finds any illegality in the order of appellate authority, confirm, reverse or modify the order passed by the appellate authority: Provided that the Court of Session shall have no power to stay the order of confiscation of the order passed by the appellate authority during pendency of the petition for revision before it. 47-D. Bar of jurisdiction of the Court under certain circumstances.--Notwithstanding anything to the contrary contained in the Act, or any other law for the time in force, the Court having jurisdiction to try offences covered by Clause (a) or (b) of Sub-section (1) of Section 34 on account which such seizure has been made, shall not make any order about the disposal, custody etc. of the intoxicants, articles, implements, utensils, materials, conveyance etc. seized after it has received from the Collector an intimation under Clause (a) of Sub-section (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articles and the vehicle etc. as may appear to him to be necessary in the circumstances of the case . It has been emphasised that the Collector would pass the order on the question of confiscation or interim release within a reasonable time . However, the proviso to Sub-section (2) of Section 47-C of the Act which deprives the Court of Session the power to stay the order of confiscation during the pendency of the revision has been sought to be held as wholly arbitrary and unreasonable and therefore offending Article 14 of the Constitution and is bad in law and it has been proposed to be struck down. 7. Dipak Mishra, J., in his separate order concurred with the view that the provisions in Sections 47-A and 47-D are intra vires and do not offend Articles 14 and 19(1) (g) of the Constitution of India. But he disagreed with the conclusion that the proviso to Sub-section (2) of Section 47-C of the Act is ultra vires being arbitrary and unreasonable thereby inviting the wrath of Article 14 of the Constitution. It has been observed in Para 31 of his opinion: the Court of Session can pass any interim order which the appellate authority can pass. It is only deprived of the power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt. It cannot be said that there is no safeguard for the persons subjected to confiscation procedure. The Magistrate is informed about the confiscation proceeding. Show-cause notice is given inviting representation. Hearing is given. The expression hearing is one of broad import. It includes opportunity to adduce evidence also. Appeal lies to a Superior Officer, namely, Conservator of Forests. Revision lies to the Sessions Court whose decision is final. The existence of these substantial safeguards negatives any possibility of denial of justice. The provision in Section 52 (3) cannot therefore be said to be arbitrary. It has been further observed that the authorised officer while discharging his statutory function in regard to confiscation cannot be regarded as a Judge in his own cause. The doctrine of bias can have no application in relation to the procedure. There cannot be any apprehension or real likelihood of bias or whittling down of purity of administration of justice. The decision of the Authorised Officer is subject to appeal before the Conservator of Forests and to revision before the Court of Session. The appellate and revisional authorities have ample power to correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding it difficult to curb the forest offences effectively and quickly in spite of the fact that large scale smuggling of forest produce was on the increase. Hence; it was thought necessary to empower officials of the Forest Deptt. seizing any property under Sub-section (1) of Section 44, instead of merely making a report of seizure to the Magistrate also to order confiscation of timber of forest produce seized with all the tools, boats, vehicles, etc. used in committing such offences. The intendment of the Legislature in enacting Act 17 of 1976 was, therefore, to provide for two separate proceedings before two independent forums in the Act, one for confiscation by a departmental authority exercising quasi-judicial powers conferred under Sub-section (2-A) of Section 44 of the goods forming the subject-matter of the offence and the other for the trial of the person accused of the offence so committed.... It would, therefore, appear that there can be no conflict of jurisdiction between the authorised officer acting under Sub-section (2-A) of Section 44 of the Act to direct confiscation of the property seized under Sub-section (1) on his being satisfied that a forest offence has been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the word may has been used instead of shall . Therefore, the Collector also while considering the question of confiscation under Section 47-A (2) of the Act would keep in mind that the confiscation is not obligatory in all cases but the judicial discretion conferred on him is to be exercised keeping in view all the facts and circumstances of the case. This legal position is being made clear as the learned Counsel for the petitioner expressed an apprehension that the Collector may pass order of confiscation in all the cases brought to him under Section 47-A of the Act. 11. Sections 47-A to 47-D have been held by both the learned Judges of the Division Bench to be infra vires not offending any provision of the Constitution. In our view also these provisions do not suffer from the vice of unconstitutionality. 12. Now coming to the question whether the proviso to Section 47-C infringes Article 14 of the Constitution, it is noticed that there is a proviso to Sub-section (3) of Section 47-B of the Act which also lays down that the appellate authority shall have no power to stay the order of confiscation appealed against during the pendency of the appeal . The petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision in the proviso to Section 47-C of the Act would supersede the general provision in Section 397 of the Code. But the Court of Session being in seisin of the matter can pass any other incidental or ancillary order including the order for custody, disposal etc. of the confiscated articles during the pendency of the revision as has been conferred on the appellate authority. It is true that the proviso to Sub-section (2) of the Section 47-C does not specifically confer on the Court of Session the power to pass the order of interim nature for custody and disposal of the confiscated articles during the pendency of revision as has been conferred specifically on the appellate authority, but, as already stated the Court of Session can pass an interim order for the purpose of preservation and custody of the property till the disposal of the revision in exercise of its general power except that it cannot stay the order of confiscation. Section 399 of the Code provides that the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. Section 401 of the Code provides that in the case of any proceeding the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. M.K. Mohammad Kunhi, AIR 1969 SC 430, that the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. In order that an appellate authority may not exercise this power in a routine way, the statute may provide that no order for stay shall be passed unless certain conditions are satisfied so that the appellate authority acts rightly and fairly towards all the parties concerned. But by prohibiting an appellate or revisional authority from passing an order staying the order of the competent authority, whose order is the subject-matter of appeal or revision, the decision of the appellate or revisional authority setting aside the order of the competent authority is likely to be rendered ineffective in so far as restoration of land distributed by the competent authority is concerned. This would therefore, virtually amount to modification of the order passed by the appellate or revisional authority and would, in a sense, constitute encroachment by the Legislature on the judicial power exercised by the appellate or revisional authority. The provisions of Section 42-A are, therefore, violative of the Rule of law and deserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of confiscation cannot be said to be arbitrary, unreasonable or against the rule of law violating Article 14 of the Constitution. It is well settled that in considering the validity of a Statute, the presumption is in favour of its constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. For sustaining the presumption of constitutionality, the Court may take into consideration mat- ters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived. It must be always be presumed that the Legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds. It is well settled that Courts will be justified in giving a liberal interpretation to the section in order to avoid constitutional invalidity. These principles have given rise to rule of reading down the section if it becomes necessary to uphold the validity of the sections. (Commissioner of Sales Tax v. Radhakrishan, AIR 1979 SC 1588). This principle of law has been reiterated in several subsequent deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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