Bombay High Court

Mr. Vijay S/O. Kashinath Wankar vs Additional Superintendent Of ... on 9 January, 2018

Bench: S.B. Shukre

Cri.W.P. No.987/2017                           1

    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH, NAGPUR

               CRIMINAL WRIT PETITION NO.987 OF 2017

Petitioner               :         Mr. Vijay s/o Kashinath Wankar,
                                   Aged 45 years, Occupation : Agriculturist,
                                   R/o. Subhash Ward, Adpalli, Gadchiroli.

                                   -- Versus --

Respondents              : 1] Additional Superintendent of Police/
                              Competent Authority, Gadchiroli.

                                2] Police Station Officer,
                                   Police Station, Gadchiroli.

                 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                  Shri R.R. Vyas, Advocate for the Petitioner.
                 Shri H.D. Dubey, A.P.P. for the Respondents.
                 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                         CORAM : S.B. SHUKRE, J.

                         DATE          : 9th JANUARY, 2018.


ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally by

consent.

02] There is an objection taken to the maintainability of this

writ petition. The ground of objection is that remedy of appeal

under Section 137 of the Maharashtra Prohibition Act is available.

The learned Additional Public Prosecutor submits that as this

remedy has not been availed of, the writ petition invoking

jurisdiction of this Court under Article 227 of the Constitution of

India is not maintainable. This is, however, disputed by the learned

Counsel for the petitioner submitting that this writ petition is based

upon an extraordinary ground, which would make it tenable before

this Court. He submits that the impugned order has been passed

without jurisdiction and that there is a manifest illegality committed

by the authorized officer. He further submits that when the

impugned order has been passed, without having any jurisdiction to

pass such an order, no relief in the nature of grant of permanent or

interim custody of the vehicle to the petitioner could have been

granted or refused by the authorized officer. He also submits that

this petition not only involves the issue about confiscation of the

seized vehicle, but also about it being released to the custody of

the petitioner following his acquittal in criminal case being S.C.C.

No.287/2017 arising out of Crime No.165/2017, in which this

vehicle came to be seized on the allegation that the vehicle was

used for transportation of contraband liquor.

03] On perusal of the paper-book of this writ petition, I find

that a criminal prosecution was launched against the petitioner for

offences punishable under Sections 65(a), 98(1)(c) and 83 of the

Maharashtra Prohibition Act, arising from Crime No.165/2017. It is

further seen that the prosecution so launched vide S.C.C.

No.287/2017 resulted in acquittal of the petitioner. However, the

operative portion of the acquittal order dated 07/11/2017 passed

by the 2nd Judicial Magistrate First Class, Gadchiroli indicates that

the learned Magistrate refrained from giving any direction as

regards releasing of the seized vehicle bearing Registration No. MH-

33/A/4634 or otherwise on the ground that confiscation

proceedings initiated against the petitioner were pending before

the authorized officer. It is also seen that the learned Magistrate in

paragraph 19 of his judgment expressed his opinion that as this

was not a case of clean acquittal handed over to the petitioner and

was a case of acquittal by giving benefit of doubt, and the offences

being serious, the seized vehicle was required to be confiscated. It

is also seen that after having expressed such an opinion, which

tended to categorize acquittals into clean and doubtful acquittals,

the learned Magistrate instead of passing any specific order,

observed that he would not pass any order of release of the vehicle

because confiscation proceedings were pending.

04] If the learned Magistrate was of the opinion that

confiscation proceedings were pending before the authorized

officer and the authorized officer was required to be given freedom

to exercise his power regarding confiscation or non-confiscation,

the learned Magistrate ought not to have expressed any opinion

like the one, he has expressed in the acquittal order. Then, in

criminal jurisprudence, there is no categorization or types of

acquittals in the sense that there is a clean acquittal or an

honorable acquittal or a doubtful acquittal or not so an honorable

acquittal. In effect, any acquittal is an acquittal and so must result

in restoration of the valuable property to it's rightful owner,

whosoever he may be. After all, the law of confiscation is pivoted

on the finding of guilt of the accused in commission of the offence

using a valuable article like a vehicle, as in this case. If the finding

of not guilty is returned, there would not be any further question to

be considered regarding possibility of the seized vehicle being used

in future for commission of the offence. The learned Magistrate,

therefore, should have exercised more caution in this case. Be that

as it may. This should not divert our attention from the main point

involved in this case, which is, whether or not the authorized officer

possessed requisite jurisdiction to initiate confiscation proceedings

and pass an order therein.

05] Sections 98(2), 100 and 101 of the Maharashtra

Prohibition Act are relevant for the purpose of this writ petition and,

therefore, they are reproduced as under :

98. (2) Any receptacle, package or covering in which any of the articles liable to confiscation under sub- section (1) is found and the other contents of such receptacle, package or covering and the animals, carts,, vessels or other conveyances used in carrying any such article shall like-wise be liable to confiscation by the order of the Court.

100. Procedure in confiscation -

When an offence under this Act has been committed and the offender is not known or cannot be found or when anything liable to confiscation under this Act is found or seized, the [Commissioner], Collector or any other officer authorized by the [State], Government in this behalf may make an inquiry and if after such inquiry is satisfied that an offence has been committed, may order the thing found to be confiscated.

Provided that no such order shall be made before the expiry of one month from the date of seizure, or without hearing [the person, if any, claiming any right thereto] and the evidence, if any, which he produces in support of his claim.

101. Power of Collector etc. to order sale or destruction of articles liable to confiscation -

If the thing in question is liable to speedy and natural decay, or if the [Commissioner], [Court] or other officer authorized by the [State] Government in this behalf is of opinion that the sale would be for the benefit of the owner, the [Commissioner], Collector, [Court] or the officer may at any time direct it to be sold and the provisions of section 99 or 100 shall apply as far as may be to the net proceeds of the sale:

Provided that, where anything is liable to speedy and natural decay, or is of trifling value, the Court, or the officer concerned may order such thing to be destroyed, if in its or his opinion such order is expedient in the circumstances of the case.

06] In the present case, the seized article was a motorcycle

and as such was not subject to speedy and natural decay. It was

also not an article, the sale of which could be considered to be

enuring to the benefit of the owner of the vehicle. Therefore,

Section 101 would have no application to the facts of the present

case.

07] The facts of the present case disclose that the offender

was known, rather the offender was prosecuted and acquitted by a

criminal court. The seized article was not something which was

found in an unclaimed state. It was also not of the nature wherein

the offender was not known or could not be found. Section 100

speaks of a situation where the offender is not seen or cannot be

found or the seized articles have been found in an unclaimed state

and such articles have been seized by the police. Such not being

the facts of the present case, Section 100 would have no

application to the facts of the present case. Section 98(2) is the

section, which can be said to be squarely applicable to the facts of

the present case.

08] Reading of this section i.e. Section 98(2) would show

that whenever any vehicle or cart or vessel or animal or any other

conveyance has been used in carrying any prohibited article, it

shall also be liable to confiscation not by the order of an authorized

officer, but the order of the Court. So, the jurisdiction to consider

confiscation of the seized vehicle in this case under Section 98(2)

vested in the competent court of Judicial Magistrate First Class and

not in the authorized officer. So, the impugned order passed in the

present case by the authorized officer confiscating the seized

vehicle is manifestly illegal, it being without jurisdiction.

09] Whenever, a manifestly illegal order is passed and some

relief which cannot be ordinarily granted by an authority before

whom the statutory appeal lies, the writ jurisdiction of this Court

under Article 227 of the Constitution of India can always be

invoked. This is what happened in the present case. The impugned

order as stated earlier is manifestly illegal and has been passed

without any jurisdiction having been vested in the authorized

officer. The authorized officer also did not have any jurisdiction to

remit the case back to the learned Magistrate for hearing afresh on

the question of release of the vehicle to the petitioner or otherwise.

In this situation, had the petitioner been relegated to the appeal

remedy available under Section 137 of the Maharashtra Prohibition

Act, he would have been in no position to get any solace from the

appellate authority appointed under Section 137 of the

Maharashtra Prohibition Act . These are the reasons, why I find that

there is no merit in the objection taken to the maintainability of the

present writ petition and it is rejected accordingly.

10] While rejecting the objection as to the maintainability of

this writ petition, I have also found as to how the impugned order is

manifestly illegal, it having been passed without jurisdiction. Such

an order, therefore, cannot sustain the scrutiny of law and it is

liable to be quashed and set aside. At the same time, the issue

would have to be referred back to the learned Magistrate for its

consideration afresh in accordance with law.

11] In the result, the following order is passed :

i. The writ petition is allowed.

ii. The impugned order is quashed and set aside.

iii. The point relating to release of the vehicle permanently

to the petitioner is remitted back to the learned

Magistrate for its consideration afresh, who shall decide

the same in accordance with law, by keeping in view the

observations made hereinabove.

iv. Meanwhile, interim custody of the vehicle shall be given

to the petitioner on his furnishing an undertaking that

he shall abide by the final order of the Court that may

be passed eventually with regard to the custody and/or

confiscation of the vehicle.