Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 6520 of 2018 Petitioner :- Shiv Shanker Chauhan Respondent :- State Of U.P.
Counsel for Petitioner :- Sanjeev Kumar Khare Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Sanjeev Kumar Khare, learned counsel for the petitioner and Shri Apoorva Hazela, learned Standing Counsel for the State respondent.
The petitioner herein has challenged the order dated 13.12.2017 passed by the District Magistrate, Jaunpur under Section 72 of the Excise Act for confiscation of Vehicle No.UP-67T-9642 TATA PICKUP, as also the order dated 26.7.2018 passed by the District Judge, Jaunpur in Civil Appeal No.8 of 2018 (Shiv Shanker Chauhan vs. State of UP) and for direction to the respondent to release the vehicle in his favour.
An FIR under Sections 60, 62 and 72 of the Excise Act and under Sections 419, 420, 467, 468, 471 and 272 IPC was lodged as Case Crime No.1062 of 2017 at Police Station Kerakat, District Jaunpur. On receipt of an information through Mukhbir about illegal liquor being carried in the vehicle belonging to petitioner, the police party reached the spot in question where it was found that a TATA PICCUP and a White colour Bolt Car alongwith three motorcycles were coming in very high speed from the other side and stopped these vehicles and motorcycles at about 8.15 PM and arrested three persons. On reaching the vehicles they found that there was a huge quantity of liquor bottles etc. in the vehicles and the said intoxicant which was recovered by the police party was illegally being transported. A show cause notice was issued to the petitioner on 9.10.2017 to which he submitted his reply. Finally, the District Magistrate, Jaunpur passed an order on 13.12.2017 under Section 72 of the Excise Act for confiscation of the vehicle in question. The said order was assailed by the petitioner before the District Judge, Jaunpur by preferring Civil Appeal No.8 of 2018 and learned lower appellate Court has dismissed the appeal in question on 26.7.2018.
Learned counsel for the petitioner submits that the petitioner is the owner of the vehicle. He is engaged in the business of D.J. and road light and he was driving the vehicle for rent. The petitioner's vehicle has been falsely implicated in the case. The driver has been bailed out in the criminal case which is still pending, therefore, there was no justification for confiscation of the vehicle under Section 72 of the Excise Act or proceedings to put it auction as it would cause irreparable loss in the present criminal trial, if the case set up is found to be false. The contention of the petitioner is that the impugned orders have been passed mechanically without considering the aforesaid aspect of the matter. In support of his submission, he has placed reliance on a judgement of this Court in Dhirendra Singh Thapa vs. State of UP and another reported in 2016 LawSuit (All) 4011.
On the other hand, Shri Apoorva Hazela, learned Standing Counsel for the State respondent submits that at the time of checking the huge quantity of liquor bottles etc. were found in the vehicles. Consequently, the District Magistrate as per provisions contained under the Excise Act had proceeded to issue notice to the petitioner and thereafter order impugned has been passed and the same has been affirmed in the appeal. There is no infirmity or illegality in the impugned orders and the writ petition is liable to be dismissed.
Apart from factual issues involved which cannot be adjudicated under Article 227 of the Constitution, the proviso of sub section (2) of Section 72 of the Excise Act states that in case of anything (except on 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. Section 72 (1) (e) refers to every animal, cart, vessel or other conveyance used in carrying such receptacle or package, therefore, vehicle is covered under Section 72 and its proviso to sub section (2) thereof as referred to hereinabove. The notice issued to the petitioner does not indicate any such option having been given to the petitioner to pay in lieu of its confiscation such fine as referred in the proviso to sub section 2 of Section 72 of the Excise Act.
In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. The Court finds no justification warranting interference with the orders impugned in this matter.
However, considering the facts and circumstances of the case, the equities are balanced by ordering that if the petitioner deposits fine in terms of proviso to sub section (2) of Section 72 of the Excise Act before the District Magistrate within three weeks, the vehicle in question shall be released in his favour but without prejudice to the terms and conditions, on which it has been released under the criminal court under the provisions of the Code of Criminal Procedure. The deposit of fine shall be subject to the result of the criminal trial. If the petitioner does not deposit the fine the impugned orders shall remain in operation. For a period of three weeks no auction shall be taken in respect of the vehicle in question. The impugned orders are modified to this extent.
The writ petition is disposed of in the aforesaid terms.
Order Date :- 6.9.2018 RKP