IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 614 of 2003 Smt. Jasvinder Kaur …….Petitioner. Versus District Magistrate, Pauri Garhwal and others …..Respondents Mr. Siddharth Sah, Advocate for the petitioner. Mr. Sudhir Kumar, Brief Holder for the respondents. Hon’ble Sudhanshu Dhulia, J. The petitioner by means of the present writ petition has challenged the validity and legality of the order dated 4.3.2003 passed by the District and Sessions Judge, Pauri Garhwal in Misc. Appeal No. 9 of 1999 Jasvinder Kaur vs. State as well as the order of the confiscation of the truck and the order passed by the District Magistrate, Pauri dated 22.2.1999 in Excise Case No. 5/1996-97 State Vs. Jasvinder Kaur under Section 72(2) of U.P. Excise Act. Brief facts of the case are as follows: A case under Section 60/72 was registered at Kotdwar, Pauri Garhwal being crime case no. 157 of 1995 in which a chargesheet was filed. In the chargesheet it has been mentioned that on 6.8.1995 under the Command of Station House Officer a police party chased Maruti Van which had broken the “Satpuli” barrier. While the police parties was chasing the Maruti Van, obstructions were caused in their effort by a truck which was coming from behind from which gun shots were also fired in order to stop the police party from catching the Maruti Van. Thereafter, at a place called “Jwalpa” the truck was stopped and it was searched. On this search, 5800 “pouch” of country liquor were recovered. Consequently, a case was registered under Section 60/72 of the U.P. Excise Act, and notices under Section 72(5) of U.P. Excise Act, as it is applicable in the State of Uttarkhand was sent. Inter alia, one of the accused Smt. Jasvinder Kaur (the petitioner before this Court) was summoned before the court on 1.5.1997. She filed her reply stating that she is the registered owner of the truck no. UP 14-D- 4814 since 31.5.1991 and the truck was purchased by her by a finance 2 assistance from Motor Finance Company, Hapur and subsequently she obtained necessary permit from the Transport Department. For the purposes of running the truck for transporting goods she employed a driver, namely, Saleem. She expressed total ignorance as to what was being transported in the truck. She stated that she had no knowledge that liquor was being smuggled through her truck. The truck was under control of the driver and she had no connection with him. She further stated that she was under going a treatment and was also in a family way and for this reason as well she was not having effective control on the driver, etc. etc. She also stated that her husband is in the business of spare parts and the fact that she is running a truck is in the knowledge of her husband and there is normal relation between her and her husband. In her statement she has also stated that she has not taken any action against the driver nor she has lodged any report against the driver. The Court, therefore, came to the conclusion that since an offence has been committed under the U.P. Excise Act and in commission of this offence the truck was seized, Section 72(2) gives power to the authorities to confiscate such goods which have been used for smuggling or any other activity in violation of the U.P. Excise Act. Section 60 of the Excise Act reads as under :- “60, Penalty for unlawful import, export, transport, manufacture, possession , sale etc.- (1) Whoever, in contravention of this Act or of any rule or order made under this Act, or of any hence, permit or pass obtained under this Act – (a) imports, exports, transports, or possesses any intoxicant other than charas; or (b) cultivates any hemp plant (cannabis sativa) ;or (c) collects or sells any portion of the hemp plant (cannabis sativa ) from which any intoxicating drug can be manufactured; or (d) constructs or works any distillery, [brewery, manufactory]; or vintnery; or (e) uses, keeps, or has in his possession any materials still, utensils, implements or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than Tari ; or (f) removes any intoxicant from any distillery, [brewery, manufactory], vintnery or warehouse licensed, established or continued under this Act ; or (g) bottles any liquor for purpose of sale; or (h) sells any intoxicant ,save in the case provided for by section 16; or 3 (i) taps, or draws Tari, from any Tari-producing tree in areas notified under section 42; shall be punished with imprisonment which may extend to two years and with fine which shall, in the case of an offence under clause (i) not be less than ten times the amount of duty which would have been leviable if such intoxicant had been dealt with in accordance with this Act and the rules and orders made thereunder or in accordance with any licence, permit or pass obtained thereunder, and in any other case, not be less than ten times the amount of such duty, or five hundred rupees, whichever is greater. (2) Whoever in contravention of this Act or an rule or order made thereunder or of any licence, permit or pass obtained under this Act, manufactures any intoxicant or imports, exports, transports or possesses any charas, shall be punished with imprisonment which shall not be less than six months and which may extend to three yeas and also with fine which shall not be less than two thousand rupees and may extend to five thousand rupees. [(3) Whoever, in contravention of this Act or any rule or order made thereunder, consumes any intoxicant, shall be punished with the fine which shall not be less than five hundred rupees and which may extend to one thousand.” Section 72 of the U.P. Excise Act reads as under :- “72. What things are liable to confiscation. – (1) Whenever an offence punishable under this Act has been committed- (a) every intoxicant in respect of which such offence has been committed; (b) every still, utensil, implement or apparatus and all materials by means of which such offence has been committed; (c) every intoxicant lawfully imported, transported, manufactured, held in possession or sold along with or in addition to any intoxicant liable to confiscation under clause (a); (d) every receptacle, package and covering in which any intoxicant as aforesaid or any materials, still utensil, implement or apparatus is or are found, together with the other contents (if any) of such receptacle or package; and (e) every animal, cart, vessel or other conveyance used in carrying such receptacle or package; shall be liable to confiscation. [(2) Where anything or animal is seized under any provision of this Act and the Collector is satisfied for reasons to be recorded that an offence has been committed due to which such thing or animal has become liable to confiscation under sub-section (1), he may order confiscation of such thing or animal whether or not a prosecution for such offence has been instituted. 4 Provided that in the case of anything (except an 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. (3) Where the Collector on receiving report of seizure or on inspection of the seized things, including any animal, cart, vessel or other conveyance, is of the opinion that any such things or animal is subject to speedy wear and tear or natural decay or it is otherwise expedient in the public interest so to do, he may order such things (except an intoxicant) or animal to be sold at the market price by auction or otherwise. (4) Where any such things or animals is sold as aforesaid, and- (a) no order of confiscation is ultimately passed or maintained by the Collector under sub-section (2) or on review under sub-section (6); or (b) an order passed on appeal under sub-section (7) so requires; or (c) in the case of a prosecution being instituted for the offence in respect of which the thing or the animal is seized, the order of the court so requires; the sale proceeds after deducting the expenses of the sale shall be paid to the person fond entitled thereto. (5) (a) No order of confiscation under this section shall be made unless the owner thereof or the person from whom it is seized is given- (i) a notice in writing informing him of the grounds on which such confiscation is proposed; (ii) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice; and (iii) a reasonable opportunity of being heard in the matter. (b) Without prejudice to the provisions of clause (a), no order confiscating any animal, cart, vessel, or other conveyance shall made if the owner thereof proves to satisfaction of the Collector that it was used in carrying the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the person in-charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use. (6) Where on an application in that behalf being made to Collector within one month from any order of confiscation made under sub- section (2), or as the case may be, after issuing notice on his own motion within one month from the order under the sub-section refusing confiscation to the owner or the thing or animal seized or to the person from whose possession it was seized to show cause why the order should not be reviewed, and after giving him a reasonable opportunity of being heard, the Collector is satisfied that the order suffers from the mistake apparent on the face of the record including any mistake of law, he may pass such order on review as he thinks fit. 5 (7) Any person aggrieved by an order of the 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 such judicial authority as the State Government may appoint in this behalf and the judicial authority shall, after giving opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against. (8) Where a prosecution is instituted for the offence in relation to which such confiscation was ordered the thing or animal shall subject to the provisions of sub-section (4) be disposed of in accordance the order of the Court. (9) No order of confiscation made by the Collector under this section shall prevent the infliction of any punishment to which the person affected thereby may be liable under this Act.]” The court below has only found that the offence as far as the petitioner is concerned has only been committed under Section 72(2) of the U.P. Excise Act and passed an order that the petitioner should deposit an amount of Rs.2,50,000/- within a period of 30 days and if she does not do so the truck should be given in the custody of police which would then be sold by way of public auction. It is this order which has been presently challenged before this Court. Heard learned counsels for the parties at length. The main ground for challenge of the petitioner before this Court is that the petitioner was pregnant during this period and had no effective control over the driver. On this aspect the petitioner has been heard at length by the District Magistrate, Pauri. There is a clear finding on this aspect where the Court has categorically held that the petitioner had knowledge regarding the fact that liquor was being transported by the truck of the petitioner. Moreover, this Court finds no reason for interfering with the finding of the court below. In the considered opinion of this Court punishment of payment of Rs.2,50,000/- imposed upon the petitioner by the District Magistrate, Pauri Garhwal is a mild punishment under the law, on the clear finding recorded by the court below. No interference is hence required by this Court. The present writ petition is devoid of merit and is liable to be dismissed and is hereby dismissed. Interim order, if any, is also vacated. 6 No order as to costs. By order of the court below dated 22.2.1999 the petitioner was directed to deposit a sum of Rs.2,50,000/- in the court and in case this amount is not deposited within a period of 30 days the truck should be given in the custody of police which would then be sold by way of public auction. In case this order has not been complied with and the truck has not been handed over to the police, the petitioner shall deposit an amount of Rs.2,50,000/- in compliance of the order passed by the court below within a period of one month from today. Registry is directed to inform and send a copy of this order to the District Magistrate concerned for onward compliance. (Sudhanshu Dhulia, J.) 23.09.2010 Avneet