TMI Blog2019 (8) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... e liable under this Act. Thus, the punishment consequent to the prosecution is distinct from the order of confiscation passed by the Collector. 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. Subsection (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. There is no error in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ₹ 4,50,000/- as market value of the truck. Nisar was given an option to pay ₹ 1,20,000/- to seek release of the car. 7) The appellant filed an appeal before the learned District Judge, a 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, 1973 for short, Code , 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. Narender (2014) 13 SCC 100. 9) Ms. Preetika Dwivedi, learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (4) be disposed of in accordance with the order of the Court . (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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 Bai (2017) 14 SCC 502 and Divisional Forest Officer and Another v. G. V. Sudhakar Rao and Others (1985) 4 SCC 573 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 Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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