The State of Delhi, aggrieved by the order
dated 28th of November, 2011 passed by the Delhi JUDGMENT High Court in Criminal M.C. No. 2540 of 2011,
whereby it had directed for release of the vehicle
bearing Registration No. HR-56-7290 to the
registered owner on security, has preferred this
special leave petition.
Leave granted.
Shorn of unnecessary details, facts giving rise
to the present appeal are that while constables
Raghmender Singh and Sunil were on night patrolling
duty at Kirari Nithari turn on 17th of April, 2011,
they saw a vehicle coming from the side of the
Nithari Village. Constable Raghmender Singh
signalled the driver to stop the vehicle, but he
did not accede to his command and turned the
vehicle into the Prem Nagar Extension Lane. Both
the constables chased the vehicle on their
motorcycle and the driver of the vehicle,
apprehending that he would be caught, left the
vehicle and ran away from the place, taking advantage of the darkness. The vehicle abandoned
by the driver was “Cruiser Force” and had
registration No. HR-56-7290. After opening of the
windows of the vehicle, 27 Cartons, each containing
12 bottles of 750 ml. Mashaledar country-made
liquor and 20 Cartons, each containing 48 quarters
of Besto Whisky were found inside the vehicle. All
the 47 Cartons were embossed with ‘Sale in Haryana
only’. Constable Raghmender Singh gave a report to
the police and on that basis FIR No. 112 of 2011
dated 17.04.2011 was registered at Aman Vihar
Police Station under Section 33(a) and Section 58
of the Delhi Excise Act, 2009. During the course
of investigation, Narender, respondent herein,
claiming to be the owner of the vehicle, filed an
application for its release on security, before the
Metropolitan Magistrate, Rohini, who, by his order
dated 24th of May, 2011 rejected the same, inter
alia, holding that he has no power to release the
vehicle seized in connection with the offence under
the Delhi Excise Act. The respondent again filed
an application for the same relief i.e. for release JUDGMENT of the vehicle on security before the Metropolitan
Magistrate but the said application also met with
the same fate. By order-dated 14th of July, 2011,
the learned Metropolitan Magistrate declined to
pass the order for release, inter alia, observing
that any order directing for release of the vehicle
on security would amount to review of the order
dated 24th of May, 2011, which power the court did
not possess.
Aggrieved by the same, the respondent filed an
application before the High Court under Section 482
of the Code of Criminal Procedure (hereinafter
referred to as ‘the Code’), assailing the order
dated 24th May, 2011 passed by the learned
Metropolitan Magistrate. The High Court, by its
impugned order dated 28th of November, 2011 directed
the vehicle to be released in favour of the
registered owner on furnishing security to the
satisfaction of the Metropolitan Magistrate. While
doing so, the High Court has observed as follows:
“………The vehicle in question was
seized by the Police and not
confiscated and if that was so,
Section 58, Delhi Excise Act would
not apply with regard to the vehicle
in question and the procedure that
was to be followed regarding the
vehicle was to be found in Chapter
VI of Delhi Excise Act and also
Section 451, Cr.P.C………”
Mr. Mohan Jain, Additional Solicitor General
appears on behalf of the appellant whereas the
respondent is represented by Mr. Harish Pandey.
Mr. Jain submits that in view of the embargo put by
Section 61 of the Delhi Excise Act, the High Court
had no jurisdiction to pass an order for release of
the vehicle on security. Mr. Pandey, however,
submits that the High Court has the power under
Section 451 of the Code to direct for release of
the vehicle on security and the same is legal and
valid.
Rival submissions necessitate examination of
the scheme of the Delhi Excise Act, 2009
(hereinafter referred to as ‘the Act’). Section 33 of the Act provides for penalty for unlawful
import, export, transport, manufacture, possession,
sale etc. of intoxicant and Section 33(a), which is
relevant for the purpose reads as follows:
“33. Penalty for unlawful import,
export, transport, manufacture,
possession, sale, etc.- (1) Whoever,
in contravention of provision of
this Act or of any rule or order
made or notification issued or of
any licence, permit or pass, granted
under this Act-
(a) manufactures, imports, exports,
transports or removes any
intoxicant;
shall be punishable with
imprisonment for a term which shall
not be less than six months but
which may extend to three years and
with fine which shall not be less
than fifty thousand rupees but which
may extend to one lakh rupees.”
Section 58 of the Act provides for confiscation
of certain things and Section 58(d) thereof, with
which we are concerned in the present appeal, reads
as follows: JUDGMENT
“58. Certain things liable to
confiscation.- Whenever an offence
has been committed, which is
punishable under this Act, following
things shall be liable to
confiscation, namely-
(d) any animal, vehicle, vessel, or
other conveyance used for carrying
the same.”
From a plain reading of Section 33(a) of the
Act, it is evident that transportation of any
intoxicant in contravention of the provisions of
the Act or of any rule or order made or
notification issued or any licence, permit or pass,
is punishable and any vehicle used for carrying
the same, is liable for confiscation under Section
58(d) of the Act. Section 59 of the Act deals with
the power of confiscation of Deputy Commissioner in
certain cases. Section 59(1) thereof provides that
notwithstanding anything contained in any other law
where anything liable for confiscation under Section 58 is seized or detained, the officer
seizing and detaining such thing shall produce the
same before the Deputy Commissioner. On production
of the seized property, the Deputy Commissioner, if
satisfied that the offence under the Act has been
committed, may order confiscation of such property.
Therefore, under the scheme of the Act any vehicle
used for carrying the intoxicant is liable to be
confiscated and on seizure of the vehicle
transporting the intoxicant, the same is required
to be produced before the Deputy Commissioner, who
in turn has been conferred with the power of its
confiscation.
Section 61 of the Act puts an embargo on
jurisdiction of courts, the same reads as follows:
“61. Bar of jurisdiction in
confiscation.- Whenever any
intoxicant, material, still,
utensil, implement, apparatus or any
receptacle, package, vessel, animal,
cart, or other conveyance used in
committing any offence, is seized or
detained under this Act, no court
shall, notwithstanding anything to
the contrary contained in any other
law for
have jurisdiction the time tobeingmake inany force,order
with regard to such property.”
According to this section, notwithstanding
anything contrary contained in any other law for
the time being in force, no court shall have
jurisdiction to make any order with regard to the
property used in committing any offence and seized
under the Act.
It is relevant here to state that in the
present case, the High Court, while releasing the
vehicle on security has exercised its power under
Section 451 of the Code. True it is that where any
property is produced by an officer before a
criminal court during an inquiry or trial under
this section, the court may make any direction as
it thinks fit for the proper custody of such
property pending the conclusion of the inquiry or
trial, as the case may be. At the conclusion of
the inquiry or trial, the court may also, under
Section 452 of the Code, make an order for the
disposal of the property produced before it and JUDGMENT make such other direction as it may think
necessary. Further, where the property is not
produced before a criminal court in an inquiry or
trial, the Magistrate is empowered under Section
457 of the Code to make such order as it thinks
fit. In our opinion, the general provision of
Section 451 of the Code with regard to the custody
and disposal of the property or for that matter by
destruction, confiscation or delivery to any person
entitled to possession thereof under Section 452 of
the Code or that of Section 457 authorising a
Magistrate to make an order for disposal of
property, if seized by an officer and not produced
before a criminal court during an inquiry or trial,
however, has to yield where a statute makes a
special provision with regard to its confiscation
and disposal. We have referred to the scheme of the
Act and from that it is evident that the vehicle
seized has to be produced before the Deputy
Commissioner, who in turn has been conferred with
the power of its confiscation or release to its JUDGMENT rightful owner. The requirement of production of
seized property before the Deputy Commissioner
under Section 59(1) of the Act is, notwithstanding
anything contained in any other law, and, so also
is the power of confiscation. Not only this,
notwithstanding anything to the contrary contained
in any other law for the time being in force, no
court, in terms of Section 61 of the Act, has
jurisdiction to make any order with regard to the
property used in commission of any offence under
the Act. In the present case, the Legislature has
used a non-obstante clause not only in Section 59
but also in Section 61 of the Act. As is well
settled, a non-obstante clause is a legislative
device to give effect to the enacting part of the
section in case of conflict over the provisions
mentioned in the non-obstante clause. Hence,
Section 451, 452 and 457 of the Code must yield to
the provisions of the Act and there is no escape
from the conclusion that the Magistrate or for that
matter the High Court, while dealing with the case JUDGMENT of seizure of vehicle under the Act, has any power
to pass an order dealing with the interim custody
of the vehicle on security or its release thereof.
The view which we have taken finds support from a
judgment of this Court in the case of State of
Karnataka v. K.A. Kunchindammed, (2002) 9 SCC 90,
which while dealing with somewhat similar
provisions under the Karnataka Forest Act held as
follows:-
“23……….The position is made clear by
the non obstante clause in the
relevant provisions giving
overriding effect to the provisions
in the Act over other statutes and
laws. The necessary corollary of
such provisions is that in a case
where the Authorized Officer is
empowered to confiscate the seized
forest produce on being satisfied
that an offence under the Act has
been committed thereof the general
power vested in the Magistrate for
dealing with interim custody/release
of the seized materials under CrPC
has to give way. The Magistrate
while dealing with a case of any
seizure of forest produce under the
Act should examine whether the power
to confiscate the seized forest
produce is vested in the Authorized JUDGMENT
Officer under the Act and if he
finds that such power is vested in
the Authorized Officer then he has
no power to pass an order dealing
with interim custody/release of the
seized material. This, in our view,
will help in proper implementation
of provisions of the special Act and
will help in advancing the purpose
and object of the statute. If in
such cases power to grant interim
custody/release of the seized forest
produce is vested in the Magistrate
then it will be defeating the very
scheme of the Act. Such a
consequence is to be avoided.
24. From the statutory provisions
and the analysis made in the
foregoing paragraphs the position
that emerges is that the learned
Magistrate and the learned Sessions
Judge were right in holding that on
facts and in the circumstances of
the case, it is the Authorized
Officer who is vested with the power
to pass order of interim custody of
the vehicle and not the Magistrate.
The High Court was in error in
taking a view to the contrary and in
setting aside the orders passed by
the Magistrate and the Sessions
Judge on that basis.”
From a conspectus of what we have observed
above, the impugned order of the High Court is
found to be vulnerable and, therefore, the same JUDGMENT cannot be allowed to stand.
To put the record straight it is relevant here
to state that the counsel for the respondent had
not, and in our opinion rightly, challenged the
vires of the provisions of the Act in view of the
decision of this Court in the case of Oma Ram v.
State of Rajasthan, (2008) 5 SCC 502, which upheld
a somewhat similar provision existing in the
Rajasthan Excise Act.
In the result, we allow this appeal, set aside
the impugned judgment and order of the High Court
and hold that the High Court exceeded in its
jurisdiction in directing for release of the
vehicle on security.