IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.2 of 2010 SHRIMATI SHAKUNTALA DEVI LOHIA, WIFE OF SHRI SHYAM LOHIA, DIRECTOR, M/S PALLAVI MARKETING PRIVATE LIMITED, 6TH & 7TH , GROUND FLOOR, ASHOKA PALACE, EXHIBITION ROAD, P.S. GANDHI MAIDAN, DISTRICT PATNA, RESIDENT OF 2A, E BLOCK, PUSHPA VIHAR, EXHIBITION ROAD, P.S. GANDHI MAIDAN, DISTRICT PATNA……PETITIONER VERSUS 1. THE UNION OF INDIA THROUGH COMMISSIONER OF CUSTOMS (PREVENTIVE), PATNA 2. THE COMMISSIONER OF CUSTOMS (PREVENTIVE), PATNA 3. THE ADDITIONAL COMMISSIONER OF CUSTOMS (PREVENTIVE), PATNA 4. THE ASSISTANT COMMISSIONER OF CUSTOMS (PREVENTIVE), MOTIHARI DIVISION, MOTIHARI 5. THE SUPERINTENDENT OF CUSTOMS (PREVENTIVE), BETTIAH CIRCLE, BETTIAH 6. THE INSPECTOR OF CUSTOMS (PREVENTIVE), BETTIAH CIRCLE, BETTIAH 7. THE INSPECTOR OF CUSTOMS-CUM-GODOWN INCHARGE, MOTIHARI 8. MUKESH JAISWAL, SON OF BISWANATH CHOWDHARY C/O M/S SANJAY OPTICALS, MOTIJHEEL, POLICE STATION- TOWN (MUZAFFARPUR), DISTRICT MUZAFFARPUR………RESPONDENTS *** For the Petitioner: M/s P.N. Shahi & Mritunjay Kumar, Advocates For Respondent Nos.1 to 7: Mr. Sanjay Kumar, C.G.C. For Respondent No. 8 : Mr. Sandeep Kumar, Advocate *** P R E S E N T HON’BLE MR. JUSTICE JAYANANDAN SINGH *** O R D E R Jayanandan Singh,J. Heard learned counsel for the petitioner, learned counsel for the Customs Department and learned counsel appearing for the newly added respondent no.8. 2. The case of the petitioner is that she had agreed to sell her Bolero jeep bearing registration no. BR-1P-9479 to respondent no.8 Mukesh Jaiswal and respondent no.8 had taken - 2 - Bolero jeep on trial. While the jeep was under his possession, it was stolen away. He lodged a substantive case for theft of the jeep which was registered as Muzaffarpur Town P.S. Case No. 395/2006. Later on, on information, the officials of the Customs Department chased a Bolero jeep suspected to be laden with Ganja. After some chase, the occupants of the jeep fled away abandoning it. On search, Customs officials found 156 Kgs of Ganja loaded on it. The jeep was seized along with the Ganja. It was also found that the jeep was having a fake number plate and on enquiry, it was found that the said jeep was registered in the name of the petitioner. During investigation, petitioner took the stand that she had sold the jeep to Mukesh Jaiswal, respondent no.8. Therefore, both of them were made accused in the case and case proceeded. In the trial, Mukesh Jaiswal filed a petition for release of the jeep in his favour on such terms and conditions as the court desired to fix. 3. Petitioner, on the other hand, moved this Court for quashing of the trial against her on the ground that she had handed over the jeep to Mukesh Jaiswal in the process of sale and, thereafter it was stolen and Mukesh Jaiswal had already lodged a substantive case for theft of the jeep. Therefore, she was in no way connected - 3 - with the crime of carrying narcotics drugs on the said jeep. This Court took notice of the facts and by speaking order dated 10.12.2007 passed in Cr. Misc. No.39976 of 2007, quashed the prosecution against the petitioner. However, in the order of this Court the stand of the petitioner was noticed that she had parted possession of the vehicle in favour of Mukesh Jaiswal on account of sale of the vehicle. 4. Learned counsel for the petitioner submits that since sale was not complete, the word „sale‟ was erroneously mentioned in the order. Therefore, a petition was filed before the Court for modification of the said order dated 10.12.2007, on the stand that petitioner had though parted possession of the vehicle in favour of Mukesh Jaiswal but the same had not been sold in legal terms. However, the said modification petition was dismissed by this Court. 5. On the other hand, trial court considered the application of Mukesh Jaiswal for release of the vehicle and denied the same on the ground that the sale was not complete and as the vehicle was still registered in the name of the petitioner, it could be released only in her favour. In the circumstances, petitioner also applied to the trial court for release of the vehicle in her favour, which petition was allowed - 4 - by the trial court, vide order dated 26.11.2008 passed in Trial No.31/07, and the terms and conditions were fixed therein for such release. Copy of the said order is annexed as Annexure-8 to the writ application. As per terms and conditions, petitioner filed indemnity bond of Rs.3,00,000/- with two sureties upon which the Customs officials were directed to release the vehicle in favour of the petitioner. The communication in this regard was sent to the Superintendent of Customs (P) Circle, Bettiah by the trial court, vide Anenxure-9. However, Customs officials did not release the vehicle. 6. In the meanwhile, trial proceeded against Mukesh Jaiswal only, as the trial against the petitioner had already been quashed by this Court. Finally trial concluded, and vide judgment as contained in Annexure-10 to the writ application, Mukesh Jaiswal was acquitted. In spite of the acquittal of said Mukesh Jaiswal, Customs authorities have not released the vehicle in favour of the petitioner, as directed by the trial court. 7. Learned counsel for the Customs Department submits that the Customs Department has initiated a confiscation proceeding for confiscation of the vehicle. However, on query from the court, he accepted that the said - 5 - petition for initiation of confiscation proceeding has been filed after acquittal of said Mukesh Jaiswal. The said petition filed by the Customs Department before the court below is annexed as Annexure-A to the counter affidavit, which shows that it has been filed only on 09.09.2009 i.e. almost two months after acquittal of Mukesh Jaiswal in trial. 8. The factual position as emerges now in the case is that there is no trial pending either against the petitioner or against Mukesh Jaiswal. There is already an order of the trial court to the Customs Department to release the vehicle in favour of the petitioner on the terms and conditions as laid down in the order dated 26.11.2008. 9. Learned counsel for the Customs Department submits that since the confiscation proceeding has already started, the vehicle should not be released in favour of the petitioner or either of the parties. In support of this submission, he has relied upon the judgment of the Hon‟ble Supreme Court in the case of State of Karnataka Versus K. Krishnan, reported in AIR 2002 Supreme Court 2729. In the said judgment, which was rendered in respect of some proceeding under the Karnataka Forest Act, the Supreme Court has observed as follows :- - 6 - “Learned counsel appearing for the appellant-State has submitted and we agree that the provisions of the Act are required to be strictly complied with and followed for the purposes of achieving the object for which the Act was enacted. Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the Act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorized Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, cattles, etc., used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce which, if not protected, is surely to affect the mother- earth and the atmosphere surrounding it. The Courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the - 7 - considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a Court is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum condition. No party shall be under the impression that release of vehicles would be possible on easier terms, when such vehicle is alleged to have been involved in commission of a forest offence. Any such easy release would tempt the forest offenders to repeat commission of such offences. Its casualty will be the forests as the same cannot be replenished for years to come.” 10. The observation of the Apex Court, as quoted above, shows that the Apex Court was concerned about perpetuating the crime by the offenders, if a liberal approach is adopted in the matter. It expresses concern that if such crimes against the forest produces are encouraged by taking liberal approach in release of the seized tools, boats, vehicles, cattle etc., the same may affect the mother-earth and the atmosphere surrounding it as forests are not only natural wealth of the county but also protector of human life by providing a clean and unpolluted atmosphere. The spirit of the order of the Apex - 8 - Court is that a strict view has to be taken in the matter of release of articles seized in such crime to dissuade the offender from repeating such offence again and set an example for others. But the Apex Court has also observed that law does not debar the officer and the authorities under the Act including the appellate authority from passing the appropriate orders under the circumstances of each case by assigning valid reasons. Therefore, the Apex Court has also left it open for release of the articles/vehicles used in the crime in appropriate cases pending confiscation proceeding taking into account the peculiar facts and circumstances of the case. 11. The circumstances of the present case are such that it is not advisable to allow the vehicle to rot in the custody of the Customs Department by subjecting it to vagaries of nature. The incident is of 2006. Before the vehicle was intercepted and seized carrying Ganja, Mukesh Jaiswal had filed a substantive case of theft of the vehicle. Petitioner‟s stand that she had handed over the possession of the vehicle to Mukesh Jaiswal in the process of sale of the vehicle to him is also not denied. Neither of the two persons are facing trial at present. The occupants of the vehicle, who left it and fled away upon being chased by the Customs - 9 - officials, have not been chased, identified, apprehended and put on trial as accused. Therefore, except for confiscation of the vehicle, there is no offender before the Customs Department who can be punished for committing the crime. It is not the case of Customs Department that petitioner, in any way, had the knowledge of the vehicle being used for carrying any narcotics. Admittedly, the vehicle still belongs to her. Any loss by allowing the vehicle to rot in open air in the custody of Customs officials will be of petitioner only and none else. The Customs Department has waited for three years for initiation of the confiscation proceeding and has filed it only after the said Mukesh Jaiswal has been acquitted. 12. It is obvious that officials of the Customs Department have themselves shown much laxity in the matter and have sat over the matter for more than three years and only when their prosecution against petitioner and Mukesh Jaiswal failed, as a face saving device, they have applied for initiation of confiscation proceeding. However, now that the confiscation proceeding has been launched, the same has to proceed in accordance with law and reach to its logical conclusion and this Court refrains itself from interfering in the matter. - 10 - 13. But so far as release of the vehicle is concerned, the order passed by the trial court in 2008 itself has not been complied with by the Customs Officials. This may again be pointed out that the order of the trial court for release of the vehicle was passed on 26.11.2008 and Mukesh Jaiswal has been acquitted by the judgment dated 07.07.2009 and thereafter application for initiation of the confiscation proceeding has been filed by the authorities of the Customs Department on 09.09.2009 only. Apparently, the authorities of the Customs Department sat over the order of the learned trial court for almost one year without taking steps for initiation of the confiscation proceeding. This itself amounts to contempt of the court and now on the basis of delayed initiation of the confiscation proceeding, they are objecting to release of the vehicle. Approach of the Customs Officials in the matter is deplorable and is deprecated. 14. In the result, the writ application is allowed. Respondents- Customs authorities are directed to release the vehicle in question in favour of the petitioner on a written no- objection certificate furnished by Mukesh Jaiswal within two weeks from the date of receipt /production of a copy of this order, on terms and conditions as was fixed by the trial court by its - 11 - order dated 26.08.2009. Since petitioner is a lady, she is given liberty to authorize her husband to take possession of the vehicle from the custody of the Customs Officials. 15. However, this release will be without prejudice to the interest of the Department in the confiscation proceeding and subject to the final outcome of the same. (Jayanandan Singh, J.) Patna High Court, Patna The 22nd February, 2010 N.A.F.R. (B.T.)