HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 50 Case :- CRIMINAL MISC. WRIT PETITION No. - 12919 of 2011 Petitioner :- Satya Ram Respondent :- State Of U.P. And Another Petitioner Counsel :- Satyendra Narayan Singh,S.N. Mishra Respondent Counsel :- Govt. Advocate Hon'ble S.C. Agarwal,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
Learned counsel for the petitioner is permitted to make correction in the memo of petition.
Order dated 18.6.2010 passed by District Magistrate, Basti under section 72 of Excise Act (annexure 5 to the petition) as well as order dated 18.3.2011 passed by Addl. Sessions Judge, Court No.1, Basti in criminal appeal no. 89 of 2010 are under challenge in this petition.
The facts are that on 29.4.2010 at about 9:00 P.M., the Officers of the Excise Department recovered 330 litres illicit liquor from Jeep No. UP 51B ? 2377 belonging to the petitioner. Criminal prosecution as well as confiscation proceedings were started. The District Magistrate vide order dated 18.6.2010 directed confiscation of the vehicle and ordered that the vehicle be sold by public auction and the sale proceedings be deposited in the Treasury. It was further directed that final orders regarding the sale price shall be passed subsequently. Feeling aggrieved, the petitioner filed criminal appeal, which has been dismissed.
Learned counsel for the petitioner submitted that the vehicle was not being used for carrying illicit liquor with the knowledge of the petitioner. The further submission is that in view of the Proviso of Section 72 of sub-clause (2) of the U.P. Excise Act, it was mandatory on the part of the Collector to give an option to the petitioner to pay in lieu of confiscation of the vehicle such fine, as the Collector thinks adequate not exceeding its market value on the date of its seizure, but the Collector has not given any such option to the petitioner.
Section 72 of the U.P. Excise Act provides as under :
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 its confiscation such fine as the Collector thinks adequate not exceeding its market value on the date of its seizure.
It is clear from the aforesaid proviso that at the time of confiscation of any of the items mentioned in Section 72 sub-clause (1) (except an intoxicant) the Collector is bound to give an option to the owner of the vehicle to pay such fine in lieu of confiscation as he thinks adequate not exceeding its market value on the date of its seizure.
In the instant case, the Collector has directed confiscation of the vehicle and has further directed its public auction, but has not given any option to the owner of the vehicle to pay any fine in lieu of confiscation.
In view of the aforesaid, the impugned order passed by the District Magistrate cannot be sustained. The Appellate Court has also not considered this aspect of the matter and, therefore, appellant order is also liable to be quashed.
The writ petition is allowed.
The order dated 18.6.2010 passed by District Magistrate, Basti as well as order dated 18.3.2011 passed by Addl. Sessions Judge, Court No.1, Basti are quashed.
The District Magistrate, Basti is directed to take a fresh decision in accordance with the Proviso to Section 72 sub-clause (2) of the U.P. Excise Act, 1910.
Order Date :- 12.7.2011 ss