Allahabad High Court
Jai Singh vs State Of U.P. & Another on 29 August, 2017
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 53
Case :- CRIMINAL REVISION No. - 5298 of 2011
Revisionist :- Jai Singh
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- S.P. Srivastava, Ashish Srivastava
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Harsh Kumar,J.
Case called out. No one present for opposite party no.2.
Heard Sri S.P. Srivastava, learned counsel for the revisionist, learned AGA for the State and perused the record.
The revision has been filed against the impugned order dated 28.9.2011 passed by Additional Sessions Judge, Court No.2, Bareilly in Criminal Appeal No.81 of 2011, Jai Singh Vs. State of U.P. dismissing the appeal against the order dated 25.4.2011 of confiscation of vehicle Maruti Van No. U.P. 25 AD 4303.
The brief facts of the case are that the vehicle maruti van in question of revisionist was seized for carrying illicit liquor on 24.9.2010, in case crime no.648 of 2010. Consequently, the revisionist was served with a notice for confiscation by the District Magistrate, Bareilly and rejecting his objections, the District Magistrate, Bareilly on 25.4.2011 passed the order of confiscation of the vehicle Maruti Van in question. Feeling aggrieved the revisionist preferred Criminal Appeal No.81 of 2011 before the Sessions Judge, Bareilly, which was dismissed by impugned order by the Additional Sessions Judge, Bareilly on 28.9.2011, hence the owner of the vehicle has come in the revision.
Section 72 of U.P. Excise Act, 1910 provides that whenever an offence is punishable under this Act, every animal, cart, vessel or other conveyance used in carrying such receptacle or package shall be liable to confiscation. The power of confiscation of vehicle has been given to the Collector of the District and sub-section 7 of section 72 provides that appeal against the order of confiscation under sub-section 2 or sub-section 6 of section 72 to the Judicial Authority as the Government may appoint.
Sub-section 7 of section 72 of U.P. Excise Act, 1910 is being reproduced as under:-
"(7) Any person aggrieved by an order of confiscation under sub-section(2) or sub-section (6) may, within one month from the date of the communication to him of such order, appeal to 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."
It is noteworthy that for the purpose of section 72(7) of U.P. Excise Act vide Notification No.4986 (E)/XIII-517 dated June 4th, 1978 of आबकारी अनुभाग, appellate judicial authority appointed by the State Government is "District Judge" and an appeal should be regarded as Civil Appeal (not Criminal) and is required to be decided by the District Judge himself.
In the case of Sukhraj Kaur Vs. State of U.P. 2008(1) A.Cr.R., it was held by this Court that whenever a Judicial Authority is appointed as persona designata, hearing should be done by that authority as far as possible, benefits of other Acts should not be taken.
In view of the Government Notification mentioned above, the confiscation proceedings which though arises out of criminal proceedings, upon seizure of illicit liquour etc. and the vehicle regarding the same may be confiscated by the Collector, but the appeal against such order is to be filed before the "District Judge" and has to be treated as Civil Appeal. The Code of Criminal Procedure used the word "Sessions Judge" but instead of those words, in the Government Notification issued under section 72 (7) of the U.P. Excise Act, 1910 mentioned above, the word "District Judge" has been used at the time of constituting the appellate authority and so it may not be confused with or treated to be synonymous of "Sessions Judge" as in the subordinate courts District and Sessions Judges do exercise their power of civil and criminal in deciding in the civil and criminal cases as "District Judge" and "Sessions judge", respectively.
The provisions of U.P. Excise Act, 1910 may not be confused with similar provisions of confiscation under any other Act such as Essential Commodities Act or any other Act, where the District Judge has not been constituted, as appellate authority. In the Essential Commodities Act, the Judicial Authority has been appointed under section 6 (c) as 'Sessions Judge'.
Upon hearing parties counsel and perusal of record, I find that as per provisions of section 72 (7) of U.P. Excise Act, 1910 against the order of confiscation passed by the District Magistrate, the appeal lies before the District Judge of the District, which means Civil Appeal lies and no Criminal Appeal lies against the order of confiscation. In the circumstances, the filing of criminal appeal by the revisionist was incompetent and the impugned order of entertaining the same by the Sessions Judge and dismissing it on merits by the Additional Sessions Judge is wrong, illegal and erroneous. The Sessions Judge had no jurisdiction to entertain the appeal against the order of confiscation passed by District Magistrate and ought to have returned the appeal for proper presentation before the competent court. The impugned judgment and order passed by Additional Sessions Judge, Court No.2, Bareilly in Criminal Appeal No. 81 of 2011, is without jurisdiction and is liable to be set aside, without commenting on merits. The revisionist ought to have filed civil appeal as per provisions of the Act before the competent Civil Courts, the District Judge, Bareilly. The revision is liable to be allowed and impugned judgment and order are liable to be set aside.
The revision is allowed and impugned judgment and order is set aside.
The revisionist may file civil appeal as per provisions of the Act before the competent Civil Courts, the District Judge, Bareilly subject to law of limitation.
Interim order, if any, stands vacated.
Let a copy of this order be sent to the court below for necessary action, if any.
Order Date :- 29.8.2017
Tamang
