Pareshkumar_Jaykarbhai_Brahmbhatt_vs_State_Of_Gujarat_on_15_December_2017

Pareshkumar Jaykarbhai Brahmbhatt vs State Of Gujarat on 15 December, 2017
Pareshkumar Jaykarbhai Brahmbhatt vs State Of Gujarat on 15

December, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/8521/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL) NO.

8521 of 2017
With
SPECIAL CRIMINAL APPLICATION NO. 8538 of 2017
With
With
With
With
With
With
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to
the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the

judgment ?
4 Whether this case involves a substantial question of law
Indian Kanoon - http://indiankanoon.org/doc/50572539/ 1

as to the interpretation of the Constitution of India or NO any order made thereunder ?
CIRCULATE THIS JUDGEMENT IN THE SUBORDINATE JUDICIARY.
HC-NIC Page 1 of 58 Created On Fri Dec 15 23:20:01 IST 2017

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P A R E S H K U M A R J A Y K A R B H A I B R A H M B H A T T . . . . A p p l i c a n t ( s ) Versus STATE OF
G U J A R A T . . . . R e s p o n d e n t ( s )
========================================================== Appearance:
M AD SHAH, MR SV RAJU, SENIOR ADVOCATES AS AMICUS CURIAE MR

TANMAY B KARIA, MR ST PATEL, MR MG PANDYA, MR NASIR SAIYED, MR
HIREN M MODI, MR PARTHIV A BHATT AND MR DEVANG J JOSHI,
ADVOCATES for the respective Applicants MR MITESH AMIN, PUBLIC
PROSECUTOR ASSISTED BY MR DHARMESH DEVNANI AND MS MOXA
T H A K K A R , A P P s f o r t h e R e s p o n d e n t ( s ) N o . 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 15/12/2017 CAV
COMMON JUDGMENT 1 As the issues raised in all the captioned petitions
a r e t h e s a m e ,
those were heard analogously and are being disposed of by this common
judgment and order.
2 For the sake of convenience, the Special Criminal Application

No.8521 of 2017 is treated as the lead matter.
3 By this application under Article 227 of the Con sti tuti on of India,
the applicant calls in question the legality and validity of the order dated 12th
October 2017 passed by the Principal Sessions Judge, Kheda at
Nadiad in the Criminal Revision Application No.117 of 2017, by which the
Revisional Court rejected the revision application filed by the HC-NIC Page
2 o f 5 8 C r e a t e d O n F r i D e c 1 5 2 3 : 2 0 : 0 1I S T 2 0 1 7
applicant herein, thereby affirming the order passed by the Additional Judicial
Magistrate First Class, Kapadvanj dated 27th September 2017
below Exhibit: 1 in connection with the First Information Report bearing prohibition
C . R . N o . 1 8 6 of 2 0 1 7 r e g i s t e r e d w i t h t he K a p a d v a n j P o l i c e
Station for the offence punishable under Sections 65E, 116B and 81 of
the Gujarat Prohibition Act.
4 The facts giving rise to this application may be summarised as under:
4.1 The p e t i t i o n e r h e r e i n is the r e g i s t e r e d o w n e r of a m o t o r car

n a m e l y H Y U N D A I C R E T A b e a r i n g r e g i s t r a t i o n N o . G J − 2 3 − B D − 6 0 8 2 . On 1 7 t h
September, 2017, one First Information Report came to be registered in the Kapadvanj Police

S t a t i o n , D i s t r i c t : K h e d a . T h r e e p e r s o n s n a m e l y
P r a k a s h c h a n d r a , J i v a n s i n h R a j a v a t a n d C h e t a n l a l K a l u s i n h w e r e n a m e d as
t h e a c c u s e d in t h e F . I . R . T h e F . I . R . w a s r e g i s t e r e d in c o n n e c t i o n w i t h t h e
offence punishable under the Gujarat Prohibition Act.
5 It a p p e a r s from the materials on r e c o r d that the vehicle in

q u e s t i o n i . e . of t h e o w n e r s h i p of t h e a p p l i c a n t h e r e i n w a s u s e d f o r t h e
purpose of illegal transport of liquor exceeding 10 litres in quantity.
6 As the car came to be seized by the police, the applicant herein preferred an application under
Section 451 of the Code of Criminal Procedure, 1973 for the interim release of the
same. This application came to be rejected by the Magistrate substantially relying on
the provisions of Section 98(2) of the Gujarat Prohibition Act read with Rule 9 of the Gujarat
P r o h i b i t i o n ( L i q u o r S a m p l e s a n d D e t e r m i n a t i o n of
Quantity Seized Liquor) Rules, 2012. The M a g i s t r a t e took the view that
t h e p o w e r s u n d e r S e c t i o n 4 5 1 of t h e C r . P . C . f o r t h e p u r p o s e of i n t e r i m
release of the vehicle pending the trial or confiscation proceedings have HC-NIC Page 3 of 58
C r e a t e d O n F r i D e c 1 5 2 3 : 2 0 : 0 1 I S T 2 0 1 7
been curtailed by virtue of Section 98(2) of the Gujarat Prohibition Act.
7 The applicant, being dissatisfied with the order passed by the Magistrate concerned,
filed a revision application before the Sessions
C o u r t , K h e d a . T h e r e v i s i o n a p p l i c a t i o n f i l e d by t h e a p p l i c a n t a l s o c a m e
to be rejected by the Principal Sessions Judge observing as under:
"Issue No.1:~
7. I have considered the impugned order of the Ld. Lower Court. The
impugned order is mainly based upon Section−98(2) of the Gujarat
Prohibition Act, 1949, and Rule−9 of Gujarat Prohibition (Liquor Samples
& Determination of Quantity Seized Liquor) Rules, 2012, which are as under:~
(a). Section−98(2) of the Gujarat Prohibition Act, 1949, is as under:~
98. Things liable to confiscation :
(1). XXX (2). Any receptacle, package or covering in which any of the articles
liable to c o n f i s c a t i o n under s u b − S e c t i o n (1) is found and the other
c o n t e n t s of such r e c e p t a c l e , p a c k a g e or c o v e r i n g and the a n i m a l s ,
carts, vessels or other conveyances used in carrying any such article shall likewise
be liable to confiscation by the order of the Court [but it shall not be
released on bond or surety till the final judgment of the Court where
t h e q u a n t i t y o f t h e s e i z e d l i q u o r is
exceeding the quantity as may be prescribed by the rules].

(b). Rule−9 of Gujarat Prohibition (Liquor Samples & Determination of

Quantity Seized Liquor) Rules, 2012, is as under:~ Rule−9. Seizure of vehicles
w h e n q u a n t i t y m o r e t h a n 1 0
l i t e r s : ~ Where the q u a n t i t y of l i q u o r s e i z e d is more than 10 l i t e r s
in respect of any offence punishable under the Act, the vehicle or conveyance
carrying such liquor shall be l i a b l e to c o n f i s c a t e d in
accordance with the provisions of sub−section (2) of Section 98 of the Act.
8. The above mentioned vehicle is involved in the offence punishable under the prohibition
Act, as mentioned above for the quantity more than 10 liters.
9. I have considered the citation of Hon'ble High Court of Gujarat in the HC-NIC Page 4 of
58 Created On Fri Dec 15 23:20:01 IST 2017 'Special Criminal Application No.68/2013' in the
case of 'Dilip Babu Mahida v/s. State of Gujarat', in which, the vehicle was involved in the
offen ce p u n i s h a b l e under the Guj a r a t P r o h i b i t i o n Act, 1949 and H on 'ble
High Court has ordered to hand over the possession of the vehicle to the applicant.
In this regard, I have considered the above mentioned citation of Hon'ble High Court of Gujarat.
The citation is under Section−482 of the Criminal Procedure Code, 1973. Section−482 of the
Criminal Procedure Code, is as under:~
482. Saving of inherent power of High Court. − Nothing in this

C o d e s h a l l be d e e m e d to l i m i t or a f f e c t t h e i n h e r e n t p o w e r s of t h e
H i g h C o u r t to m a k e s u c h o r d e r s as m a y be n e c e s s a r y to g i v e e f f e c t
to a n y o r d e r u n d e r t h i s C o d e , or to p r e v e n t a b u s e of t h e p r o c e s s of
any Court or otherwise to secure the ends of justice.
In view of the above mentioned provisions of Law, the above mentioned inherent
power lies with the Hon'ble High Court only. This
Court is subordinate Court to the Hon'ble High Court.
In view of the above mentioned facts and c i r c u m s t a n c e s , this

citation is not helpful to the applicant.
10. I have considered the citation of Hon'ble High Court of Gujarat in the
' S p e c i a l C r i m i n a l A p p l i c a t i o n ( Q u a s h i n g ) N o . 2 1 7 4 of 2 0 1 5 ' in t h e c a s e of
'Akil Shabir Kakar v/s. State of Gujarat', in which, Hon'ble High Court has ordered
to hand over the possession of the vehicle to the applicant,
which is involved in the offence of prohibition Act.
L o o k i n g to t h e a b o v e m e n t i o n e d c i t a t i o n of H o n ' b l e H i g h C o u r t of
Gujarat, the above mentioned application filed by the petitioner is under Article−227 of the
Constitution of India. The Article−227 of the Constitution of India is as under:~

227. Power of s u p e r i n t e n d e n c e over all courts by the High Court. −

[1]. Every High Court shall have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
[2].Without prejudice to the generality of the foregoing provisions, the High Court may −
(a). call for returns from such courts;
(b). make and issue general rules and prescribe forms for
regulating the practice and proceedings of such courts; and
(c). prescribe forms in w h i c h books, entries and accounts

shall be kept by the officers of any such courts.

[3]. The High Court may also settle tables of fess to be allowed to the sheriff and all clerks and
officers of such courts and to attorneys, advocates and pleaders practicing therein:
Provided that any rules made, forms prescribed or tables settled under clause
[2] or clause [3] shall not be inconsistent with the
p r o v i s i o n of any law for the time bei n g in f o r c e , and sha ll r e q u i r e
the previous approval of the Governor.
[4]. Nothing in this article shall be deemed to confer on a High Court powers of
superintendence over any Court or tribunal
constituted by or under any law relating to the Armed Forces.
In view of the above mentioned fact, the constitutional power is

lying with the Hon'ble High Court and not with this Court. This Court is
subordinate to the Hon'ble High Court.
Therefore, this citation is not helpful to the applicant.
11. Moreover, I have also considered the citation in case of 'Sundarbhai

Ambalal Desai v/s. State of Gujarat', reported in 'A.I.R. 2003 SC 638' of
Hon'ble Apex Court, which is under Section−451 & 457 of the Criminal Procedure
Code. The citation has been pronounced in the year 2003, whereas, the
new amendment in the Section−98(2) of the Gujarat
Prohibition Act, is come into existence on 13−12−2011, in which, there is
prohibition to release the vehicle on bond or security, where the vehicle is
involved in the offence for the liquor exceeding the quantity prescribed by the rules.
M o r e o v e r , w h e n t h e r e is a s i t u a t i o n r e g a r d i n g w h i c h o n e p r e v a i l ,
whether procedural law or the Act itself, then the provisions of Act will prevail. In view of the
above mentioned particular provisions of Law, Section−98(2) of Gujarat Prohibition Act,

it will prevail over the procedural law I.e. Criminal Procedure Code, Section−451.
Therefore, this citation is not helpful to the applicant.
In v i e w of t he a b o v e m e n t i o n e d f a c t s a n d c i r c u m s t a n c e s , p r o v i s i o n s
of L a w a n d c i t a t i o n s , it a p p e a r s t h a t , t h e L d . L o w e r C o u r t h a s c o n s i d e r e d
the f a c t s and c i r c u m s t a n c e s an d p r o v i s i o n s of L a w in the r i g h t p e r s p e c t i v e
and, therefore, I come to the conclusion that the Ld. Lower Court has not made any error in
dismissing the above mentioned application of the
a p p l i c a n t a n d , t h e r e f o r e , I c o m e to the c o n c l u s i o n t h a t it is not r e q u i r e d to
i n t e r f e r e w i t h t h e a b o v e m e n t i o n e d o r d e r of t h e L d . L o w e r C o u r t , h e n c e I
answer Issue No.1 in the negative.
Issue No.2:~
13. The present Criminal Revision Application deserve to be dismissed, hence I HC-NIC Page 6 of
58 Created On Fri Dec 15 23:20:01 IST 2017 pass the following order is in the interest of justice.
ORDER
1. The Criminal Revision Application No.117/2017 is hereby dismissed.
2. The o r d e r d a t e d 2 7 − 0 9 − 2 0 1 7 , p a s s e d by the C o u r t of the Ld. A d d i t i o n a l

J u d i c i a l M a g i s t r a t e F i r s t C l a s s , K a p a d w a n j , d i s m i s s i n g t h e a p p l i c a t i o n of
the a p p l i c a n t to h a n d o v e r the p o s s e s s i o n of the v e h i c l e u n d e r S e c t i o n − 4 5 1
of Criminal Procedure Code, seized in connection with the offence under 65(e), 116(b), 81,98(2)
of the Gujarat Prohibition Act, registered at Kapadwanj Town Police Station vide
Prohibition C.R.No. 186/2017, is hereby upheld and confirmed."
8 B e i n g d i s s a t i s f i e d w i t h t h e o r d e r p a s s e d by t h e R e v i s i o n a l C o u r t ,
t h e a p p l i c a n t is h e r e b e f o r e t h i s C o u r t w i t h t h i s a p p l i c a t i o n u n d e r A r t i c l e
227 of the Constitution of India invoking the supervisory jurisdiction of this Court.
● SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL

APPEARING IN THE RESPECTIVE PETITIONS:
9 The learned counsel appearing for the respective applicant
v e h e m e n t l y s u b m i t t e d that the Courts below have c o m m i t t e d a seri ous

e r r o r in r e j e c t i n g t h e a p p l i c a t i o n s f i l e d u n d e r S e c t i o n 4 5 1 of t h e C r . P . C .
on t h e g r o u n d t h a t t h e j u r i s d i c t i o n of a M a g i s t r a t e or C o u r t to p a s s an
a p p r o p r i a t e o r d e r u n d e r S e c t i o n 4 5 1 of t h e C r . P . C . to r e l e a s e t h e v e h i c l e
by w a y of an i n t e r i m c u s t o d y p e n d i n g t h e i n v e s t i g a t i o n , t r i a l or i n q u i r y
h a v e b e e n b a r r e d or r e s t r i c t e d , as p r o v i d e d u n d e r S e c t i o n 9 8 ( 2 ) of t h e

Gujarat Prohibition Act. According to the learned counsel, Section 98(2) of the Gujarat
Prohibition Act offends Articles 14, 19, 31 and Article
300A of the Constitution of India. It was further submitted that Section 98(2) overrides the
provisions in the Code of Criminal Procedure, in respect of disposal of property
pending disposal of cases as also the HC-NIC Page 7 of 58 Created On Fri Dec 15 23:20:01
IST 2017 inherent powers vested in the High Court under Section 482 of the
C r . P . C . It w a s a l s o c o n t e n d e d t h a t S e c t i o n 9 8 ( 2 ) o f f e n d s t h e r i g h t s of a
p e r s o n to p o s s e s s t h e p r o p e r t y , a n d as s u c h t h e G o v e r n m e n t s h o u l d be
c a l l e d u p o n to s a t i s f y t h a t s u c h r e s t r i c t i o n is r e a s o n a b l e c o m i n g w i t h i n
the reasonable limit envisaged in Clauses (5) and (6) of Article 19 of the Constitution of India. It
was further pointed out that the Gujarat Prohibition Act comes under the State
Seventh Schedule to the Constitution. The Gujarat List, i.e., entry 8 of List II of the
Seventh Schedule to the Constitution. It was submitted that it overrides the
provisions of Sections 451 and 482 of the Code of Criminal Procedure dealing with the disposal of
p r o p e r t y a n d t h e i n h e r e n t p o w e r s o f t h e
H i g h C o u r t . It w a s a l s o s u b m i t t e d r e l y i n g on o n e d e c i s i o n of t h e M a d r a s
High Court in the case of Sakthidevi vs. State [2012 Cri.L.J. 461] that the confiscation
proceeding is no bar in granting the relief of interim custody of vehicle. This decision of the
M a d r a s H i g h C o u r t i s i n
c o n n e c t i o n w i t h S e c t i o n 1 4 ( 4 ) of t h e T a m i l N a d u P r o h i b i t i o n A c t . It w a s
f u r t h e r s u b m i t t e d t h a t t h e p o w e r of t h e M a g i s t r a t e to r e l e a s e t h e v e h i c l e
u n d e r S e c t i o n 4 5 1 of t h e C r . P . C . s h o u l d be r e a d i n t o S e c t i o n 9 8 ( 2 ) of t h e
G u j a r a t P r o h i b i t i o n A c t . It w a s a l s o s o u g h t to be c o n t e n d e d t h a t w h a t is
p r o h i b i t e d is t h e r e l e a s e of t h e v e h i c l e on a b o n d or s e c u r i t y . T h e v e h i c l e
c a n be r e l e a s e d on a n y o t h e r s t r i n g e n t t e r m s a n d c o n d i t i o n s . In t h e l a s t ,
it was submitted that the provision is arbitrary and unreasonable. The vehicle is detained only
f o r t h e i d e n t i t y at t h e t i m e of t h e t r i a
l . T h e c u r t a i l m e n t of t h e p o w e r of t h e C o u r t f r o m p a s s i n g a n y
i n t e r i m o r d e r will result in a total loss of the property. It was submitted that in almost all
the cases, c h a r g e s h e e t has yet to be filed, and if the
vehicles a r e a l l o w e d to be k e p t in t h e o p e n y a r d , t h e y w i l l d e t e r i o r a t e
n o t o n l y f o r value, but will be open to pilferage of its parts by the miscreants. The disposal of
cases will take a long time and until then as per Section 98(2), an interim order
regarding disposal of such property shall be HC-NIC Page 8 of 58 Created On Fri Dec 15
23:20:01 IST 2017 passed
by any Court. One another limb of submission canvassed on
b e h a l f of t h e a p p l i c a n t s is t h a t t h e p r o v i s o to S e c t i o n 99 of t h e A c t c o m e s
i n t o p l a y in the c o u r s e of the c o n f i s c a t i o n p r o c e e d i n g s . It is n ot n e c e s s a r y
for the owner of the vehicle at the stage of claiming interim custody of the vehicle to satisfy the
Court that he had exercised due care in preventing the commission of the offence.
10 T h e l e a r n e d c o u n s e l a p p e a r i n g f o r t h e r e s p e c t i v e a p p l i c a n t s h a v e
p l a c e d s t r o n g r e l i a n c e on a d e c i s i o n of t h e S u p r e m e C o u r t in t h e c a s e of
State of Madhya Pradesh vs. Madhukar Rao [(2008) 14 SCC 624]. In the case before the
S u p r e m e C o u r t , t h e i s s u e w a s w h e t h e r t h e
a m e n d m e n t of S e c t i o n 3 9 ( 1 ) ( d ) of t h e W i l d L i f e ( P r o t e c t i o n ) A c t , 1 9 7 2
c u r t a i l e d t h e p o w e r of t h e C o u r t to o r d e r i n t e r i m r e l e a s e of t h e v e h i c l e
seized in connection with the offence under the Wild Life (Protection) Act, 1972. The Supreme
Court, while rejecting the submission that Section 50 and the other provisions in
Chapter VI of the Wild Life (Protection) Act excluded the application of any provisions
of the Criminal Procedure Code, observed in para 15 as under:
"We are unable to accept the submissions. To contend that the use of a
vehicle in the commission of an offence under the Act, without anything
else would bar its interim release appears to us to be quite unreasonable.
There may be a case where a vehicle was undeniably used for commission
of an offence under the Act but the vehicles owner is in a position to show
that it was used for committing the offence only after it was stolen from his
possession. In that situation, we are unable to see why the vehicle
should not be released in the owners favour during the pendency of the trial."
11 H a v i n g r e g a r d to t h e i m p o r t a n c e of t h e i s s u e , I r e q u e s t e d M r . A . D .
Shah and Mr. S.V. Raju, the learned senior counsel to assist the Court as Amicus Curiae. Mr.
Shah submitted that the power of the Magistrate
under Sections 451 or 457 of the Cr.P.C., as the case may be, should be HC-NIC Page 9 of 58
Created On Fri Dec 15 23:20:01 IST 2017 read into Section 98(2) of the Act, 1949.
According to Mr. shah, although the legislature has used the word "shall", the same may be read
as "may". The argument of Mr. Shah is that if the word "shall" is not read as "may", then
Section 99 of the Act, 1949 would become redundant. According to Mr. shah, Section
99 provides for return of things liable to confiscation to the bona fide owners. Mr.
Shah, laid much emphasis on the words "when during the trial of a case", as
contained in Section 99 of the Act, 1949. According to Mr. Shah, the words "during
t h e t r i a l "m e a n s t h a t a t a n y t i m e d u r i n gt h e c o u r s eo f
t r i a l , an a p p l i c a t i o n can be f i l e d for r e l e a s e of the v e h i c l e . Mr . S h a h t a k e s
s u p p o r t of t h e p r o v i s o to S e c t i o n 99 of t h e A c t to f o r t i f y h i s s u b m i s s i o n .
Mr. Shah, in support of his submissions, placed reliance on one decision of the Supreme Court
in the case of Superintendent and Remembrancer of Legal Affairs to Government of West
Bengal vs. Abani Maity reported in AIR 1979 SC 1029. Mr. Shah placed reliance on
paras 17, 18, 19, 20 and 25.
12 Mr. S.V. Raju, the learned senior counsel submitted that there is no scope for the Court to
read the word "shall" as "may" in Section 98(2) of the Act, 1949. According to Mr.
R a j u , t h e i n t e n t i o n o f t h e
legislature appears to be very clear. The intention is to create deterrence by curtailing the power
of the Court to release the vehicle seized in
c o n n e c t i o n w i t h t h e p r o h i b i t i o n o f f e n c e s p e n d i n g t h e t r i a l or c o n f i s c a t i o n
p r o c e e d i n g s . Mr. Raju fur ther s u b m i t t e d that the words "dur i n g the trial
of a c a s e " in S e c t i o n 99 of t h e A c t w o u l d n o t m e a n t h a t at a n y s t a g e of
the trial. According to Mr. Raju, Section 99 of the Act would come into play when the

Court decides to pass an appropriate order as regards disposal of the muddamal

property under Section 452 of the Code of Criminal Procedure. If the power of the
Magistrate to order interim release of the vehicle under Sections 451 or 457 of the Code is to be
HC-NIC Page 10 of 58 Created On Fri Dec 15 23:20:01 IST 2017 read also in Section 99 of the
A c t , 1 9 4 9 , t h e n t h e o b j e c t w i t h w h i c h
S e c t i o n 9 8 ( 2 ) h a s b e e n a m e n d e d , w o u l d be f r u s t r a t e d . A c c o r d i n g to M r .
R a j u , t h e p l e a of r e p u g n a n c y c a n be u r g e d o n l y if b o t h t h e l e g i s l a t i o n s
fall under the Concurrent List. Under Article 254 of the Constitution, a State law passed in
respect of a subject−matter comprised in List III
w o u l d be i n v a l i d if i t s p r o v i s i o n s a r e r e p u g n a n t to a l a w p a s s e d on t h e
s a m e s u b j e c t by t h e P a r l i a m e n t a n d t h a t t o o o n l y if b o t h t h e l a w s c a n n o t
e x i s t t o g e t h e r . M r . R a j u p l a c e d r e l i a n c e on t h e f o l l o w i n g o b s e r v a t i o n s of
t h e S u p r e m e C o u r t in t h e c a s e of K.T. P l a n t a t i o n Private Limited vs.
State of Karnataka [(2011) 9 SCC 1 as contained in para 109:
"When the repugnancy between the Central and State Legislations is

pleaded we have to first examine whether the two legislations cover or
relate to the same subject−matter. The test for determining the same is to find out
the dominant intention of the two legislations and if the
dominant intention of the two legislations is different, they cover different subject−
matter then merely because the two legi sla ti on s refer to some allied
or cognate subjects, they do not cover the same field."
13 Mr. Raju also relied upon one another decision of the Supreme Court in the case of
S e c u r i t y A s s o c i a t i o n o f I n d i a n a n d a n o t h e r v s .
Union of India and others [(2014) 12 SCC 65], more particularly para
51. H o w e v e r , M r . R a j u s u b m i t t e d t h a t t h e e x t r a o r d i n a r y j u r i s d i c t i o n of
t h i s C o u r t u n d e r A r t i c l e 2 2 6 of t h e C o n s t i t u t i o n w o u l d n o t be a f f e c t e d in
a n y m a n n e r . T h e a r g u m e n t is t h a t if t h e o w n e r of t h e v e h i c l e or t h e
p e r s o n c l a i m i n g p o s s e s s i o n of t h e v e h i c l e is a b l e to s h o w t h a t t h e s e i z u r e
w a s n o t in a c c o r d a n c e w i t h l a w or c o n t r a r y to t h e p r o v i s i o n s of t h e A c t ,
in s u c h c i r c u m s t a n c e s , t h e H i g h C o u r t w o u l d be j u s t i f i e d in e x e r c i s i n g i t s
e x t r a o r d i n a r y j u r i s d i c t i o n u n d e r A r t i c l e 2 2 6 of t h e C o n s t i t u t i o n f o r t h e
purpose of releasing the vehicle subject to certain terms and conditions.
HC-NIC Page 11 of 58 Created On Fri Dec 15

● SUBMISSIONS ON BEHALF OF THE STATE RESPONDENTS :

14 On the other hand, all these applications have been vehemently
o p p o s e d by M r . M i t e s h A m i n , t h e l e a r n e d P u b l i c P r o s e c u t o r a s s i s t e d by
Mr. D h a r m e s h Devn an i and Ms. Moxa T h a k k a r , the learn ed A d d i t i o n a l
Public Prosecutors appearing for the State. Mr. Amin, the learned Public Prosecutor submitted
that the language of the statute is very clear.
A c c o r d i n g to M r . A m i n , t h e j u r i s d i c t i o n of a M a g i s t r a t e or C o u r t to p a s s
an o r d e r u n d e r S e c t i o n 4 5 1 of t h e C r . P . C . to r e l e a s e t h e v e h i c l e by w a y
of interim custody pending the investigation, trial or inquiry can be said to have been restricted
or barred under the Act. It is submitted that
A r t i c l e 47 of t h e C o n s t i t u t i o n e n j o i n s t h a t t h e S t a t e s h a l l e n d e a v o u r to
b r i n g a b o u t p r o h i b i t i o n of t h e c o n s u m p t i o n of a l l t h e i n t o x i c a t i n g d r i n k s
w h i c h a r e i n j u r i o u s to h e a l t h . M r . A m i n s u b m i t t e d t h a t o v e r a p e r i o d of
t i m e , it h a s b e e n n o t i c e d by t h e G o v e r n m e n t t h a t t h e c o n s u m p t i o n of
a l c o h o l h a s g r o w n a l a r m i n g a n d h a s d e v e l o p e d i n t o a s o c i a l e v i l . In s u c h
c i r c u m s t a n c e s , t h e G o v e r n m e n t t h o u g h t f i t to a m e n d t h e P r o h i b i t i o n A c t
by i n c o r p o r a t i n g c e r t a i n s t r i n g e n t p r o v i s i o n s . T he i n t e n t i o n is to c u r b the
c o n s u m p t i o n of a l c o h o l a n d i m p l e m e n t t h e p r o h i b i t i o n p o l i c y p r e v a i l i n g
in the State of Gujarat strictly. Mr. Amin, the learned Public Prosecutor, submitted that having
regard to the intention of the legislature, the
v e h i c l e c a n n o t be r e l e a s e d e v e n on t h e s t r i n g e n t of t h e c o n d i t i o n s . To
e l a b o r a t e , a c c o r d i n g to M r . A m i n , t h e v e h i c l e c a n n o t be r e l e a s e d e v e n
u p o n a s k i n g t h e o w n e r to f u r n i s h a b a n k g u a r a n t e e . A c c o r d i n g to M r .
A m i n , w h e n t h e l e g i s l a t u r e h a s t h o u g h t f i t to u s e t h e w o r d s " b o n d or
security", a bank guarantee would be covered in the term security.
15 Mr. Amin, the P u b l i c P r o s e c u t o r further submitted that by no

s t r e t c h of i m a g i n a t i o n , t h e w o r d " s h a l l " in s e c t i o n 9 8 ( 2 ) of t h e A c t , 1 9 4 9
c a n be r e a d as " m a y " . M r . A m i n s u b m i t t e d t h a t S e c t i o n 9 9 of t h e A c t ,
1949 is independent of Section 98 of the Act. Mr. Amin tried to develop HC-NIC Page 12 of 58
Created On Fri Dec 15 23:20:01 IST 2017 an argument that the issue of confiscation of the vehicle
would arise only on conclusion of the trial. To put it in other words, whether the
v e h i c l e s e i z e d in c o n n e c t i o n w i t h t h e o f f e n c e u n d e r t h e A c t is l i a b l e to be
c o n f i s c a t e d or n o t , c a n be d e c i d e d on t h e b a s i s of a f o r m a l i n q u i r y t h a t
t h e M a g i s t r a t e m a y u n d e r t a k e u n d e r S e c t i o n 4 5 2 of t h e C r . P . C . It is o n l y
on conclusion of the trial that if the Magistrate decides to confiscate the vehicle, a notice
w i l l h a v e t o b e i s s u e dt o t h e p e r s o nc o n c e r n e d ,a n d
a f t e r h e a r i n g h i m , t h e C o u r t m a y p a s s an a p p r o p r i a t e o r d e r . A c c o r d i n g
to M r . A m i n , t h e p r o v i s o to S e c t i o n 99 w o u l d c o m e i n t o p l a y at t h a t
stage and not at the stage of Section 98 of the Act or while considering an application under
Sections 451 or 457 of the Cr.P.C. Mr. Amin submitted that if it is the case of the
a p p l i c a n t s t h a t S e c t i o n 9 8 ( 2 )
imposes unreasonable restriction or is constitutionally invalid, then the Court will have to

c h a l l e n g e t h e v a l i d i t y i n a c c o r d a n c e w i t h l a w .
H o w e v e r , as on d a t e , t h e p l a i n r e a d i n g of t h e s e c t i o n w o u l d s u g g e s t t h a t
the powers of the Court for release of the vehicle at an interim stage are curtailed.
16 H a v i n g h e a r d t h e l e a r n e d c o u n s e l a p p e a r i n g f o r t h e p a r t i e s a n d
h a v i n g c o n s i d e r e d t h e m a t e r i a l s on r e c o r d , t h e o n l y q u e s t i o n t h a t f a l l s
f o r my c o n s i d e r a t i o n is w h e t h e r S e c t i o n 9 8 ( 2 ) of t h e G u j a r a t P r o h i b i t i o n
A c t r e s t r i c t s or b a r s t h e j u r i s d i c t i o n of a M a g i s t r a t e or C o u r t to p a s s an
o r d e r u n d e r S e c t i o n 4 5 1 of t h e C r . P . C . to r e l e a s e t h e v e h i c l e by w a y of
interim custody pending the investigation, trial or inquiry.
17 B e f o r e adverting to the r i v a l s u b m i s s i o n s canvassed on e i t h e r

s i d e s , it is n e c e s s a r y f o r me to l o o k i n t o f e w p r o v i s i o n s of t h e A c t . I m u s t
start first with the objects and reasons.
"STATEMENT OF OBJECTS AND REASONS HC-NIC Page 13 of 58 Created On Fri

Dec 15 23:20:01 IST 2017 The anti−social elements adulterate liquor by mixing
t h e m e t h y l
alcohol or other poisonous substances and make the spurious liquor which is
commonly known as Laththa. The consumption thereof may cause
harmful effect to human body or cause death of a person.
Recently, due to such type of illegal activities, some people have lost their lives.
With a view to prohibiting the misuse of such illicit and
spurious liquor and in view of the situation, it is considered necessary to
amend the existing provisions of the Bombay Prohibition Act, 1949 and make
stringent provisions for offences relating to m a n ufa ctur i n g,
constructing, selling, buying, keeping, transporting, etc. of such spurious liquor.
With a view to preventing the sad incidents of Laththa consumption

causing death of persons, it is considered necessary to insert new section
65A which inter alia provides that any person who manufactures Laththa,
constructs any distillery or brewery, sells or buys, uses, keeps, transports
or has in his possession such Laththa shall be punished for a term which
may extend to ten years but not less than seven years. It is also provided that when
there has been death of person by consumption of the said Laththa, the
person who has m a n u f a c t u r e d , kept, sold etc. shall be
punished with death or imprisonment for life and also fine.
It is also provided that conveying vehicles used in transport of

liquor (including Laththa) shall not be released on bond or surety, in cases where
the q u a n t i t y of the s e i z e d l i q u o r e x c e e d s the q u a n t i t y as may be
prescribed by rules, till the final order of the Court. Such vehicle would be
liable to be confiscated as per the existing provisions of section 98.

18 C h a p t e r VII of the Act p r o v i d e s for the o f f e n c e s and p e n a l t i e s .

S e c t i o n 65 p r o v i d e s f o r t h e p e n a l t y f o r i l l e g a l i m p o r t , e t c of i n t o x i c a n t or
hemp. Section 65 of the Act reads as under:
"65. Penalty for illegal import, etc. of intoxicant or hemp − Whoever,

in contravention of the provisions of this Act, or of any rule, regulation or order
made or of any licence, pass, permit or authorisation granted thereunder−
□
(a) imports or exports any intoxicant [(other than opium)] or hemp,
(b) manufactures any intoxicant [c] [(other than opium)],
(c) constructs or works any distillery or brewery, HC-NIC Page 14 of 58 Created On

Fri Dec 15 23:20:01 IST 2017
(d) bottles liquor,
(e) possesses, transports, sells or buys] any intoxicant] [(other than

opium)] or hemp, or
(f) uses, keeps or has in his possession any materials, still utensils,
implements or apparatus for the purpose of manufacturing any intoxicant
[(other than opium)].
[ ( g ) c u l t i v a t e s o r c o l l e c t s h e m p . ]
[ s h a l l , on c o n v i c t i o n , be p u n i s h e d for e a c h s u c h o f f e n c e w i t h i m p r i s o n m e n t
for a term which may extend to ten years and with fine which may extend to five lakh rupees:
Provided that, in absence of special and adequate reasons to the

contrary to be mentioned in the judgment of the court.−
(i) for a first offence, such i m pr i son m en t shall not be less than two
years and fine shall not be less than one lakh rupees;
(ii) for a second offence, such i m p r i s o n m e n t shall not be less than

three years and fine shall not be less than two lakh rupees;
(iii) for a third or subsequent offences, such imprisonment shall not

be less than seven years and fine shall not be less than five lakh rupees];
[***]"

19 Chapter IX is with regard to the powers and duties of officers and procedure. Section
1 1 7 o f t h e A c t i s w i t h r e g a r dt o t h e i n v e s t i g a t i o n ,
arrest, searches, etc. Section 117 of the Act reads as under:
"117. Investigations arrests, searches, etc., how to be made.− all

investigations, arrests, detentions in custody and searches shall be made in
accordance with the provisions of the Code of Criminal Procedure, 1973 [2 of 1974] .
Provided that [***] no search shall be deemed to be illegal by

reason only of the fact that witnesses for the search were not inhabitants
of the locality in which the place searched is situated."
H C - N I C P a g e 15 of 58 C r e a t e d On F r i D e c 15 2 3 : 2 0 : 0 1 I S T 2 0 1 7 20
Section 119 of the Act provides that the offences under Sections 65, 65A, 67, 67−
1A and 68 shall be non−bailable.
21 S e c t i o n 1 2 1 of t h e A c t c o n f e r s p o w e r s u p o n t h e p r o h i b i t i o n o f f i c e r
d u l y e m p o w e r e d by t h e S t a t e G o v e r n m e n t or a n y p o l i c e o f f i c e r to o p e n
packages, etc. Section 121 of the Act reads as under:
"121. Power to open packages etc.− (1) Any Prohibition Officer duly
empowered in this behalf by the [State] Government or any Police Officer
may open any package and examine any goods and may [stop and search]
for any intoxicant, hemp, mhowra flowers, or molasses any vessel, vehicle or other
means of conveyance [and may seize any intoxicant, hemp, mhowra
flowers, molasses or any other thing liable to confiscation or forfeiture
under this Act or any other law for the time being in force
r e l a t i n g to e x c i s e r e v e n u e f o u n d w h i l e m a k i n g s u c h s e a r c h . ]
(2) The unloading and carrying of goods, the bringing of them to the place
appointed under sub−section (3) for examination, the opening and
repacking of them, where such operations [are necessary for searches
made] under this section and the removing of goods to and placing of them
in the place appointed under sub−section (3) [for examination or deposit], shall
be performed by or at the expense of the owner of such goods.
(3) The owner of goods or the persons in−charge of the goods shall, if so
required by any officer conducting the search, take the goods [to a place
appointed in Greater Bombay by the Commissioner of Police, Bombay and
elsewhere, by the District Magistrate] for the purpose of examination or deposit.
[(4) The expenses incurred by the State Government for any of the
p u r p o s e s m e n t i o n e d in s u b − s e c t i o n (2) m a y be r e c o v e r e d f r o m the o w n e r ,
or as the case may be, the person−in−charge, of the goods as arrears of land revenue.]"

22 S e c t i o n 1 2 3 of t h e A c t p r o v i d e s f o r t h e a r r e s t of t h e o f f e n d e r s a n d
seizure of contraband articles. Section 123 of the Act reads as under:
"123. Arrest of offenders and seizure of contraband articles.− (1) Any

Prohibition Officer authorised by the [State] Government in this behalf or HC-NIC
Page 16 of 58 Created On Fri Dec 15 23:20:01 IST 2017 any Police Officer may−
(a) arrest without warrant any person whom he has reason to

believe to be guilty of an offence under this Act;
(b) seize and detain any intoxicant hemp, mhowra flowers or

molasses or other articles which he has reason to believe to be liable
to confiscation or forfeiture under this Act [and seize any document
or other article which he has reason to believe may furnish evidence
of the commission of any offence under this Act.
(2) Any Prohibition Officer authorised by the [State] Government under

this section who arrests any person under clause (a), or seizes and detains
any article under clause (b), of sub−section (1) shall forward such person
or article, as the case may be, without unnecessary delay to the officer−in−
charge of the nearest Police Station."
23 S e c t i o n 1 2 5 of t h e A c t is w i t h r e g a r d to p o w e r to s e i z e i n t o x i c a n t s ,
etc. The Section 125 of the Act reads as under:
"125. Power to seize intoxicants, etc− The [Director], Collector or any Prohibition
Officer duly empowered in this behalf or any Police Officer may−
(a) seize in any open place, or in transit any intoxicant, hemp, mohwra
flowers or m o l a s s e s or any other thi n g whi ch he has
reason to believe to be liable to confiscation or forfeiture under this
Act or any o t h e r law for the time b e i n g in f o r c e r e l a t i n g to e x c i s e
r e v e n u e and any d o c u m e n t or o t h e r a r t i c l e w h i c h he has r e a s o n to
believe may furnish evidence of the commission of an offence under this Act;
(b) detain and search any per son whom he has r ea son to b e l i e v e to
be g u i l t y of any o f f e n c e a g a i n s t t h i s Act or any o t h e r law for the
time being in force relating to excise revenue, and if such person has any
intoxicant, hemp, mhowra flowers, molasses or [ o t h e r
thing] in his possession, arrest him."
24 S e c t i o n 1 2 9 o f t h e A c t h a s e m p o w e r e d t h e p r o h i b i t i o n o f f i c e r t o
investigate the offences. Section 129 of the Act reads as under:

H C - N I C P a g e 17 of 58 C r e a t e d On F r i D e c 15 2 3 : 2 0 : 0 1 I S T 2 0 1 7
"129. Prohibition officers may be empowered to investigate offences.− (1) The
[State] Government may empower any Prohibition Officer to
investigate offences under this Act.
(2) An o f f i c e r e m p o w e r e d u n d e r s u b − s e c t i o n (1 ) s h a l l in the c o n d u c t of
s u c h i n v e s t i g a t i o n e x e r c i s e t h e p o w e r s c o n f e r r e d by t h e C o d e of C r i m i n a l
P r o c e d u r e , 1 9 7 3 , [2 of 1 9 7 4 ] , u p o n an o f f i c e r − i n − c h a r g e of a p o l i c e s t a t i o n
for the investigation of cognizable offences.
(3) Any Prohibition Officer; to whom such officer is subordinate may,

during the course of the investigation, take over the investigation himself or direct any other
Prohibition Officer duly empowered to conduct the same. The officer in conducting the
investigation shall have the same powers under sub−
sections (1) and (2) as if he were the Prohibition Officer
appointed for the area or for the purpose of investigating the said offence.
(4) If the P r o h i b i t i o n O f f i c e r c o n d u c t i n g the i n v e s t i g a t i o n is of o p i n i o n

t h a t t h e r e is no s u f f i c i e n t e v i d e n c e or r e a s o n a b l e g r o u n d of s u s p i c i o n to
j u s t i f y t h e f o r w a r d i n g of t h e a c c u s e d to a M a g i s t r a t e , or t h a t t h e p e r s o n
a r r e s t e d m a y be d i s c h a r g e d w i t h a w a r n i n g , s u c h o f f i c e r s h a l l r e l e a s e h i m
on his executing a bond with or without sureties, to appear, if and when so required, before a
M a g i s t r a t e e m p o w e r e d to t a k e c o g n i z a n c e of t h e
o f f e n c e and s h a l l m a k e a f u l l r e p o r t of the c a s e to his o f f i c i a l s u p e r i o r and
be guided by the order which he shall receive on such report.
(5) The powers of any officer empowered under this section shall be subject to such
other modifications or restrictions as the [c] [State] Government may deem fit."
25 S e c t i o n 130 of the Act p r o v i d e s that the a r r e s t e d p e r s o n s and

t h i n g s s e i z e d a r e to be s e n t to t h e o f f i c e r i n − c h a r g e of t h e p o l i c e s t a t i o n .
Section 130 of the Act reads as under:
"130. Arrested persons and things seized to be sent to officer−in−

charge of police station.− Every person arrested and thing seized by a
Prohibition Officer under this Act, shall be sent to the officer−in−charge of
the nearest Police Station [or to any other officer duly empowered under
Section 129 if the Director in any particular case has directed such officer
to conduct the investigation of the offence]."
26 Section 132 of the Act deals with the articles seized. It reads as under:
HC-NIC Page 18 of 58 Created On Fri Dec 15 23:20:01 IST 2017 "132. Articles
seized.− [When anything has been seized under the provisions of this Act

by a Prohibition Officer exercising powers under Section 129 or by an officer−

in−charge of a police station], or has been sent to him in accordance
with the provisions of this Act, such officer, after
such inquiry as may be, deemed necessary,−
(a) if it appears that such thing is required as evidence in the case of any
person arrested, shall forward it to the Magistrate to whom such person is
forwarded or for his appearance before whom bail has been taken;
(b) if it a p p e a r s t h a t s u c h t h i n g is l i a b l e to c o n f i s c a t i o n but is not r e q u i r e d

as evidence as aforesaid, shall send it with a full report of the particulars of seizure to the Collector;
(c) if no o f f e n c e a p p e a r s to h a v e been committed shall return it to the

person from whose possession it was taken."
27 L e t me n o w l o o k i n t o t h e m a i n p r o v i s i o n i . e . S e c t i o n 98 of t h e A c t .
It is with regard to confiscation. It reads as under:
"98. Things liable to confiscation.− (1) whenever any offence punishable

under this Act has been committed,
(a) any intoxicant, hemp, mhowra flowers, molasses, materials, still,

utensil, implement or apparatus in respect of which the offence has been committed,
(b) where in the case of an offence involving illegal possession, the offender has in
his lawful possession any intoxicant, hemp, mhowra flowers or
molasses other than those in respect of which an offence under this Act has
been committed, the entire stock of such intoxicant, hemp, mhowra flowers
or molasses,
(c) where, in the case of an offence of illegal import, export or transport,

the offender has attempted to import, export or transport any intoxicant,
hemp, mhowra flowers or molasses, in contravention of the provisions of
this Act, rule, regulation or order or in breach of a condition of licence, permit, pass
or authorisation, the whole quantity of such intoxicant, hemp, mhowra
flowers or molasses which he has attempted to import, export, or transport,
(d) where in the case of an offence of illegal sale, the offender has in his
lawful possession any intoxicant, hemp, mhowra flowers or molasses other HC-NIC
Page 19 of 58 Created On Fri Dec 15 23:20:01 IST 2017
than that in respect of which an offence has been committed, the whole of
s u c h o t h e r i n t o x i c a n t , h e m p , m h o w r a f l o w e r s or m o l a s s e s ,
shall be confiscated by the order of the court.

(2) Any receptacle, package or covering in which any of the articles

liable to c o n f i s c a t i o n under s u b − s e c t i o n (1) is found and the other
c o n t e n t s of such r e c e p t a c l e , p a c k a g e or c o v e r i n g and the a n i m a l s ,
carts, vessels or other conveyances used in carrying any such article
shall likewise be liable to confiscation by the order of the Court [but
it shall not be released on bond or surety till the final judgement of the Court
where the quality of the seized liquor is ex ceedi n g the
quantity as may be prescribed by the rules]."
28 S e c t i o n 9 9 o f t h e A c t i s w i t h r e g a r d t o r e t u r n o f t h i n g s l i a b l e t o
confiscation to the bona fide owners. It reads under:
"99. Return of things liable to confiscation to bonafide owners.−

When during the trial of a case for an offence under this Act the Court
decides that anything is liable to confiscation under the foregoing section,
the Court may, after hearing the person, if any, claiming any right thereto
and the evidence, if any, which he produces in support of his claim, order
confiscation, or in the case of any article other than an intoxicant, hemp,
mhowra flowers or molasses give the owner an option to pay fine as the
Court deems fit in lieu of confiscation:
Provided that no animals, cart, vessel, vehi cle or other c o n v e y a n c e

shall be confiscated if the owner thereof satisfies the Court that he had
exercised due care in preventing the commission of the offence."
29 Section 100 of the Act of the Act pr ovi des for a p r o c e d u r e in

c o n f i s c a t i o n . S e c t i o n 1 0 0 s p e c i f i c a l l y d e a l s w i t h a s i t u a t i o n in w h i c h t h e
o f f e n c e is c o m m i t t e d , b u t t h e o f f e n d e r is n o t k n o w n or c a n n o t be f o u n d .
Section 100 of the Act reads as under:
"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 [Director],
Director or any other officer authorised by the [State] HC-NIC Page 20 of
5 8 C r e a t e dO n F r i D e c 1 5 2 3 : 2 0 : 0 1I S T 2 0 1 7
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."

30 At this stage, let me now look into Rule 9 of the Gujarat Prohibition (Liquor
S a m p l e s a n d D e t e r m i n a t i o n o f Q u a n t i t y S e i z e d
L i q u o r ) R u l e s , 2 0 1 2 . I m a y q u o t e t h e e n t i r e N o t i f i c a t i o n i s s u e d by t h e
Home Department dated 20th August 2012 as under:
"HOME DEPARTMENT Notification Sachivalaya, Gandhinagar, 8th August, 2012.
GUJARAT PROHIBITION ACT, 1949 :
No. GG/20/2012/VDR/ 10200912061/E1:−−−WHEREAS certain draft

rules were published as required by sub section (3) of section 143 of the
Gujarat Prohibition Act, 1949 (Bom. XXV of 1949) at pages No.46−1 to 46−
4 of the Gujarat Government Gazette, Extra Ordinary, Part lV−B, dated the 9"1
February, 2012 min the Government Notification, Home Department
No.GG/07/2012/VDR/102009/206l/b−1 dated the 6th
February, 2012, inviting objections or suggestions from all persons likely to be
affected thereby within a period of thirty days from the date of
publication of the said notification in the Official Gazette.
AND WHEREAS, no objection or suggestion has been received by the

Government from any person 111 respect to the aforesaid draft
notification;
NOW THEREFORE, in exercise of the powers conferred by sub section (1)

of Section 143 of the Gujarat Prohibition Act, 1949 (Bom. XXV of 1949),
the Government of Gujarat hereby makes the following it, namely :
1. Short title and extent(1) These rules may be called the Gujarat
Prohibition (Liquor Samples and Determination of Quantity Seized
Liquor) Rules, 2012'.
(2) They shall extend to the whole of the State of Gujarat.
2. Definitions. (1) In these rules, unless the context otherwise, requires:

(a) 'Act' means the Gujarat Prohibition Act, 1949 (Born. XXV of 1949);
(b) 'Container' means a drum, cask, vat, jar or vessel or any other article which may
contain liquor therein, other than branded bottles;
(C) 'Form' means the form appended to these rules;
(d) 'Sample' means a specimen of intoxicant taken for scientific Testing;
(e) 'Testing Officer" means the Chemical Examiner or Assistant Chemical

Examiner or any other officer appointed under section 116C of the Act for
testing of samples of alcohol.
(2) Words and expressions used in these rules but not defined shall have
the same meaning respectively assigned to them in the Act.
3. C o l l e c t i o n o f L i q u o r S a m p l e . − ( 1 ) T h e s a m p l e s o f l i q u o r s h a l l
be collected in the following manner, namely;
(a) The P r o h i b i t i o n O f f i c e r or the P o l i c e O f f i c e r s h a l l t a k e two s a m p l e s of

200 ml. from a container 01' in Case of more than one container, from each such container
containing liquor, in the presence of two witnesses (panchas);
(b) in the case of liquor contained in branded bottles, two bottles of each brand shall be taken
b a t c h − w i s e , f r o m t h e b o x e s w h i c h c o n t a i n s u c h
b o t t l e s , in t h e p r e s e n c e of t w o w i t n e s s e s ( p a n c h a s ) In c a s e of c h a n g e s in
the brand or batch, two bottles of liquor of each such brand shall be taken separately, as sample
(2) Out of two samples referred to in sub−rule (1), one sample shall be sent to the Testing Officer
a n d t h e a n o t h e r s a m p l e s h a l l b e k e p t ' i n t h e
c u s t o d y of t h e o f f i c e r w h o h a s s e i z e d t h e l i q u o r , t i l l t h e m a t t e r ' is f i n a l l y
d e c i d e d by the C o u r t and t h e r e a f t e r the s a m p l e k e p t in the c u s t o d y of the
officer shall be destroyed in accordance with the procedure prescribed in this behalf.
4. Signature, slips and writing of CRN on Sample of Liquor. The Prohibition Officer
or the Police Officer shall take signature of the
w i t n e s s e s ( p a n c h a s ) on l a b e l s of ea ch such s a m p l e or b o t t l e of s e i z e d l i q u o r
a n d on t h e s l i p s to be a f f i x e d on t h e s e a l s of e a c h b o t t l e a n d s h a l l a l s o
write the Crime Register Number (CRN) of the case on labels of each such sample or bottle.

5. Sample be sent for Analysis. The Prohibition Officer or the Police Officer who has seized
the l i q u o r s h a l l send the s a m p l e a l o n g w i t h the a d v i c e in F o r m −
A , i m m e d i a t e l yw i t h o u t a n y l o s s o f t i m e t o t h e F o r e n s i c
Science Laboratory of the State for detailed analysis report.
6. T e s t i n g of L i q u o r . The T e s t i n g O f f i c e r s h a l l c a r r y out d e t a i l e d a n a l y s i s
of the s a m p l e s of the l i q u o r s e n t u n d e r r u l e 5 w i t h o u t a n y d e l a y . He s h a l l
t a k e a d e q u a t e s t e p s a n d c a r e a n d s e e t h a t no t a m p e r i n g w i t h t h e a r t i c l e s
or the contents of the articles takes place.
7. I d e n t i t y of L i q u o r S a m p l e in t h e C o u r t . T h e P r o h i b i t i o n O f f i c e r or
the P o l i c e O f f i c e r who has s e i z e d the l i q u o r s h a l l p r o v e the i d e n t i t y of the
s a m p l e of l i q u o r p r o d u c e d b e f o r e t h e C o n n , to be t h e s a m e as w a s s e i z e d
and also that the same sample was sent with seals intact to the Testing Officer with Form A.
8. T e s t i n g R e p o r t a n d C e r t i f i c a t e of L i q u o r S a m p l e . T h e T e s t i n g O f f i c e r
s h a l l , a f t e r c a r r y i n g out the d e t a i l e d a n a l y s i s of the s a m p l e s of the l i q u o r
s e n t u n d e r r u l e 5, p r e p a r e t h e d e t a i l e d a n a l y s i s r e p o r t of t h e s a m p l e s of
the liquor carried out by him in Form B and shall issue the certificate to this effect in Form B.
He shall send the certificate in original to the Prohibition Officer or the Police Officer
concerned and retain a copy thereof for his record.
9. S e i z u r e of v e h i c l e s w h e n q u a n t i t y m o r e t h a n t e n l i t e r s . W h e r e t h e
q u a n t i t y of l i q u o r s e i z e d is m o m t h a n t e n l i t e r s in r e s p e c t of a n y o f f e n c e
punishable under the Act, the vehicle or conveyance carrying such liquor shall be liable to be
confiscated in accordance with the provisions of subsection (2) of section 98 of the Act.
Explanation. For the purpose of these rules, vehicle or conveyance includes bicycle,
motorcycle, scooter, auto rickshaw, loading rickshaw,
chhakdo rickshaw, camel cart, bullock cart, horse cart, hand cart, tempo, HC-NIC Page 23 of 58
Created On Fri Dec 15 23:20:01 IST 2017 tractor, tanker, car, jeep, bus, truck, ship, boat
motorized or non motorized, raft, wherry, steamer, camel, bullock, horse, donkey and such
other carriers which are not mentioned here."
31 Before adverting to the power of the Magistrate or the Court under the provisions
of the Prohibition Act to pass an order for the interim custody of the Properties, like
the vehicle seized for the commission of the offence, it is necessary to examine the
true implications of the law in regard to such a question. Only in that background,

the powers of any authority under a special law can be

e x a m i n e d to d e a l w i t h s u c h a s i t u a t i o n . It is r u d i m e n t a l t h a t t h e C o u r t s
or t h e f i n a l a u t h o r i t i e s , in t h e a d j u d i c a t o r y p r o c e s s of a d m i n i s t r a t i o n of
C r i m i n a l j u s t i c e p a r t i c u l a r l y in t h e l i g h t of A r t i c l e 21 of t h e C o n s t i t u t i o n
of I n d i a a n d g e n e r a l l y t h e C r i m i n a l C o u r t s by v i r t u e of S e c t i o n 4 of t h e
C r i m i n a l P r o c e d u r e C o d e , s h o u l d t r y t h e o f f e n c e . S e c t i o n 4 of t h e C o d e
of Criminal Procedure reads as follows:
"Section 4: Trial of offences under the Indian Penal Code and other laws:−
(1) All offences under the Indian Penal Code (45 of 1860) shall be
investigated, inquired into, tried, and otherwise dealt with according to
the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and
otherwise dealt with according to the same provisions, but
subject to any enactment for the time being in force regulating the manner
or place of investigating, inquiring into, trying or otherwise dealing with
s u c h o f f e n c e s . " ( e m p h a s i s a d d e d )
The simple m e a n i n g of this p r o v i s i o n is that all the o f f e n c e s are to
be investigated, enquired into or tried in accordance with the provisions
of the Code of Criminal Procedure particularly the offences under the
Indian Penal Code and specially by virtue of Sub−clause (2) applicable to the
offences in other enactments also. However, Sub−clause (2) is so HC-NIC
emphatic that this is subject to the provisions having been made in any
other special law. The doctrine of exclusion of jurisdiction of the regular Courts to
deal with a matter and to pass appropriate orders in such
criminal proceedings is founded in the maxim 'Generalia Specialibus Non Derogant'
(special law overrides general law). In other words,
jurisdiction over the Courts to deal with the matter and pass orders in
accordance with the provisions of the Code of Criminal Procedure should
be presumed and to hold the contrary, there must be a specific bar in any special
law in regard to certain matters under the Criminal Procedure Code and by
necessary implication by making such similar
provisions to deal with a matter in the special enactments. Such a view
has been concluded by the Supreme Court in Bhim Sen vs. State of U.P.
[AIR 1955 SC 435].
32 Section 5, Cr.P.C. deals with the saving clause and runs as follows:
"Nothing contained in this Code shall, in the absence of a specific

provision to the contrary, affect any special or local law for the time
being in force, or any special jurisdiction or power conferred, or any
special form of procedure prescribed, by any other law for the time being in force.

33 S e c t i o n 5 C r . P . C . c o r r e s p o n d s to s e c t i o n 1 ( 2 ) of t h e O l d C o d e , i . e , .
1 8 9 8 . A D i v i s i o n B e n c h of t h e C a l c u t t a H i g h C o u r t , in t h e c a s e of N a r e s h
Chandra Das & Anr. Vs. E m p e r o r , AIR 1942 C a l c u t t t a 593 has e x p l a i n e d
t h e w o r d s in t h e a b s e n c e of a n y s p e c i f i c p r o v i s i o n to t h e c o n t r a r y . I m a y
quote the observations of the Division Bench;
"In our opinion the words "in the absence of any specific provision to the contrary"
in Section 1(2), C r i m i n a l P.C., mean and c o n t e m p l a t e a
provision specific in affecting the special or local law. The section when
analysed would stand thus: 1. Nothing herein contained shall affect any HC-NIC
special or local law.... 2. The above prohibition applies in the absence of a
specific provision to the contrary−−contrary to this prohibition; or in other
words, 2. The special or local law shall be affected if there is any provision
specifically providing for such affecting.
It seems clear that this specific provision to the contrary need not be in the
Criminal Procedure Code itself. It may be in the special or local law also.
We cannot read the words "in the absence of a specific provision to the contrary" in
Section 1(2), Criminal P.C., as referring to any possible contrariety
between a specific provision in the present statute and a
provision is a special statute."
34 T h e a b o v e s e c t i o n e n a c t s t h a t n o t h i n g c o n t a i n e d in t h e C o d e s h a l l ,
in t h e a b s e n c e of a s p e c i a l p r o v i s i o n to t h e c o n t r a r y , a f f e c t a n y s p e c i a l or
l o c a l l a w f o r t h e t i m e b e i n g in f o r c e , or a n y s p e c i a l j u r i s d i c t i o n or p o w e r
c o n f e r r e d , or a n y s p e c i a l f o r m of p r o c e d u r e p r e s c r i b e d , by a n y o t h e r l a w
f o r t h e t i m e b e i n g in f o r c e . T h e a n a t o m y of t h i s s e c t i o n is s i m p l e , y e t
s u b t l e . B r o a d l y s p e a k i n g , t h e r e a r e t h r e e c o m p o n e n t s to be s e p a r a t e d .
F i r s t , t h e C o d e g e n e r a l l y g o v e r n s t h e m a t t e r s c o v e r e d by i t . S e c o n d l y , if a
special or local law exists, covering the same area, this latter law will be saved and will prevail.
T h e s h o r t − s e n t e n c i n g m e a s u r e s a n d r e m i s s i o n
schemes promulgated by the various States are the special and local laws and must override.
Now comes the third component, which may be
c l i n c h i n g . If t h e r e is a s p e c i f i c p r o v i s i o n to t h e c o n t r a r y in t h e C r . P . C . ,
t h e n it w i l l o v e r r i d e t h e s p e c i a l or l o c a l l a w . R e a d i n g s e c t i o n 5 C r . P . C . ,
t h e c o n c l u s i o n is i r r e s i s t i b l e t h a t if t h e r e e x i s t s a n y s p e c i a l l a w or if a n y
s p e c i a l j u r i s d i c t i o n or p o w e r is c o n f e r r e d u p o n the c o u r t or if a n y f o r m of
procedure is prescribed in the special law, then, the provisions of the special law would override
t h e p r o v i s i o n s o f t h e g e n e r a l l a w o f
procedure. This section in my view, vehemently provides that nothing contained in the Cr.P.C.,
i n t h e a b s e n c e o f s p e c i f i c p r o v i s i o n t o t h e
contrary, affect any special or local law for the time being in force.

H C - N I C P a g e 26 of 58 C r e a t e d On F r i D e c 15 2 3 : 2 0 : 0 1 I S T 2 0 1 7 35
Section 4 of the Code of Civil Procedure, reads as follows:− "Section 4 Savings,−(1) In the
a b s e n c e o f a n y s p e c i f i c p r o v i s i o n t o t h e
c o n t r a r y n o t h i n g in t h i s C o d e s h a l l be d e e m e d to l i m i t or o t h e r w i s e a f f e c t
any special or local law now in force of any special jurisdiction or power conferred,
or any special form of procedure prescribed by or under any other law for the time being
in force." (2) In particular and without prejudice to the generality of the proposition
contained in sub−sec. (1), nothing in this Code shall be deemed to limit or otherwise
affect any remedy which a land holder or landlord may have under any law for the
time being in force for the recovery of rent of agricultural land form the produce of such land."
36 The meaning of the saving clause is that if anything in the Code is in conflict with anything
in a special or local law, the Code shall not prevail to override the inconsistent provisions.
37 S e c t i o n 4 1 o f t h e I n d i a n P e n a l C o d e d e a l s w i t h t h e s p e c i a l l a w .
T h e s p e c i a l l a w is d e f i n e d as a l a w a p p l i c a b l e to a p a r t i c u l a r s u b j e c t . In
o t h e r w o r d s , t h e w o r d " s p e c i a l l a w " r e f e r to a l a w w h i c h is n o t a p p l i c a b l e
g e n e r a l l y b u t w h i c h o n l y a p p l i e s to a p a r t i c u l a r or s p e c i f i e d s u b j e c t or
class of subjects. The Gujarat Municipalities Act, 1963 is a special law, as well as a local law within
t h e d e f i n i t i o n o f s e c t i o n s 4 1 a n d 4 2 , P e n a l
C o d e a n d as s u c h t h e a p p l i c a t i o n of s e c t i o n 6 4 , I P C , c a n n o t o r d i n a r i l y be
r u l e d o u t to t h e o f f e n c e s u n d e r t h e G u j a r a t M u n i c i p a l i t i e s A c t , b u t in
v i e w of t h e s p e c i a l p r o v i s i o n in s e c t i o n 2 4 6 ( 2 ) of t h a t A c t w h i c h p r o v i d e s
a s p e c i a l m o d e f o r t h e r e c o v e r y of f i n e i m p o s e d u n d e r s e c t i o n s 7 2 , s u b −
section (4) of section 149, sub−section (4) of section 150, section 206, and sub−section (4) of
section 219 of the Act, which deals with the
p o w e r of t h e C r i m i n a l C o u r t , f o r a w a r d i n g s e n t e n c e of i m p r i s o n m e n t in
l i e u of t h e f i n e , c a n n o t a p p l y to t h e c a s e s w h e r e f i n e is i m p o s e d u n d e r
the Gujarat Municipalities Act, 1963.
38 Section 42 of the Indian Penal Code deals with local law as a law, HC-NIC Page 27 of 58 Created
On Fri Dec 15 23:20:01 IST 2017 applicable only to a particular part of India. As already
noticed, the Gujarat Municipalities Act, 1963 is a special law as well as a local law,
within the definitions of Sec. 41 and 42 of the Penal Code.
39 S e c t i o n 4 5 1 o f t h e C o d e o f C r i m i n a l P r o c e d u r e d e a l s w i t h o r d e r
for custody and disposal of property pending trial in certain cases. The said section reads as follows:
"451. Order for custody and disposal of property pending trial in certain cases,−
W h e n a n y p r o p e r t y is p r o d u c e d b e f o r e a n y C r i m i n a l C o u r t
during any inquiry or trial, the Court may make such order as it thinks fit for the
proper custody of such property pending the conclusion of the
inquiry or trial, and, if the property is subject to speedy and natural decay,
or if it is otherwise expedient so to do, the Court may, after recording such

evidence as it thinks necessary, or it to be sold or otherwise disposed of."
40 The power of the Court under Section 451, as regards custody of movable property, is not
arbitrary. Even though, such power is discretionary, it has to be exercised in a judicial
manner. Under this section, the Magistrate has no jurisdiction to investigate and decide the
q u e s t i o n of t i t l e or o w n e r s h i p of t h e r i v a l c l a i m a n t s to t h e p r o p e r t y . O n l y
t h e q u e s t i o n of p o s s e s s i o n of t h e p r o p e r t y at t h e t i m e t h e c a s e s t a r t e d ,
h a s to be g o n e i n t o a n d d e c i d e d b e f o r e p a s s i n g an o r d e r f o r t h e c u s t o d y
u n d e r t h i s s e c t i o n . S e c t i o n 4 5 2 d e a l s w i t h o r d e r f o r d i s p o s a l of p r o p e r t y
at c o n c l u s i o n of t r i a l . S e c t i o n 4 5 7 d e a l s w i t h p r o c e d u r e by p o l i c e , u p o n
seizure of property. This section reads as follows:
"457. Procedure by police upon seizure of property,−(1) Whenever the seizure

of property by any officer is reported to a Magistrate under the provisions of
this Code, and such pr oper ty is not pr oduced before a
Criminal Court during an inquiry or trial, the Magistrate may make such order as
he thinks fit respecting the disposal of such property or the
delivery of such property to the person entitled to the possession thereof, or if such
person cannot be ascertained, respecting the custody and HC-NIC Page 28
of 58 Created On Fri Dec 15 23:20:01 IST 2017 production of such property.
(2) If the person so entitled is known, the Magistrate may order the property
to be delivered to him on such conditions (if any) as the Magistrate
thinks fit and if such person is unknown,
the Magistrate may detain it and shall, in such case, issue a proclamation
s p e c i f y i n g t h e a r t i c l e s of w h i c h s u c h p r o p e r t y c o n s i s t s and
requiring any person who may have a claim thereto to appear before him and
establish his claim within six months from the date of such
proclamation."
41 T h e s e c t i o n 4 5 7 C r . P . C . is g e n e r a l in i t s a p p l i c a t i o n a n d a p p l i e s to
all cases of seizures of property by any police officer and such seizure is reported to a Magistrate
u n d e r t h e p r o v i s i o n s o f t h e C o d e b u t n o t
p r o d u c e d b e f o r e h i m a n d p r o v i d e s f o r t h e p r o c e d u r e to be f o l l o w e d by
the Magistrate for the disposal of property.
42 I n t h e c a s e o f V i n a y a k G u r u r a o I n a m d a r a n d O t h e r s v s . B h a s k a r
Vasudeo Shirsat and Others, 1993 Cr.L.J. 3594, a Division Bench of the Bombay High Court,
h e l d t h a t a M a g i s t r a t e c a n n o t i n e x e r c i s e o f
j u r i s d i c t i o n u n d e r S e c . of C r . P . C . , r e l e a s e p r o p e r t y s e i z e d by t h e C u s t o m s
O f f i c e r s , under the Custom s Act and also that Sec. 451, Cr.P.C. would
also not apply since the p r o p e r t y was not p r o d u c e d before the Court,
during any "inquiry or trial" as envisaged under that provision. An order directing delivery of
p r o p e r t y b y a M a g i s t r a t e , w h e n n o c r i m i n a l
proceeding is pending before him, is plainly illegal. The Division Bench, in para−

5 o f t h e j u d g m e n t , h e l d t h u s : −
"The Magistrate ought to have been mindful of the legal position that the Customs Act embodies
elaborate provisions about dealing with seized articles including the confiscation and
t h e s e s p e c i a l p r o v i s i o n s a r e
i n d e p e n d e n t of t h e p r o v i s i o n s of C r . P . C . a n d p r o t e c t e d by S e c . 5, C r . P . C .
C u m u l a t i v e e f f e c t of S e c . 1 2 4 , 1 2 5 a n d 1 1 0 ( 2 ) of t h e C u s t o m s A c t is t h a t
the Magistrate has no jurisdiction to make orders with relation to goods seized and liable to
confiscate under the Act, in any case before the launching of the criminal proceedings."
HC-NIC Page 29 of 58 Created On Fri Dec 15 23:20:01 IST 2017 43 The Supreme Court, in the
c a s e o f S t a t e o f K a r n a t a k a v s . K . K r i s h n a n ,
2007 (7) SCC 80, was considering a case of a forest offence,
u n d e r t h e K a r n a t a k a F o r e s t A c t , 1 9 6 3 . In t h i s c a s e , t h e S u p r e m e C o u r t
h a s o b s e r v e d t h a t t h e p r o v i s i o n s of t h e A c t s h o u l d be s t r i c t l y c o m p l i e d
with and g e n e r a l l y , the seized forest produce and the vehi cle, boat, tools
e t c . , u s e d in c o m m i s s i o n f o r e s t o f f e n c e s h o u l d n o t be r e l e a s e d a n d t h a t
e v e n if c o u r t is i n c l i n e d to r e l e a s e t h e s a m e , t h e a u t h o r i s e d o f f i c e r m u s t
specify reasons therefor and must insist on furnishing of bank guarantee as the minimum
condition. In the said case, the forest produce was
t r a n s p o r t e d in v i o l a t i o n of t h e p r o v i s i o n s of t h e A c t . T h e v e h i c l e u s e d in
connection with the transportation, along with the forest produce, was seized. The vehicle was
released by the authorised officer, subject to
certain conditions, including furnishing of a bank guarantee. A petition under Section 482,
Cr.P.C. for quashing the order of the authorised
officer and the unconditional release of the vehicle, was made. The High Court modified the
condition regarding bank guarantee and instead,
directed to furnish two solvent sureties to the extent of Rs. 1,50,000/− each, for the purpose of
g e t t i n g i n t e r i m c u s t o d y o f t h e v e h i c l e . T h e
S u p r e m e Court held that the High Court had a d o p t e d a casual a p p r o a c h
a n d i t s o r d e r w a s c o n t r a r y to l a w a n d t h e c a s u a l a p p r o a c h in r e s p e c t of
offences relating to forests, was deprecated.
44 I shall now consider certain provisions of the Essential Commodities Act, 1955. In
this context. Section 6−A deals with the confiscation of food−grains, edible oil−
s e e d s a n d e d i b l e o i l s . S e c t i o n 6 − B
deals with issue of show cause notice before confiscation of food grains, etc. Section 6−
E deals with the bar of jurisdiction in certain cases. Section 6−
E has been substituted to provide that except the Collector or State Government, all other
a u t h o r i t i e s , j u d i c i a l o r o t h e r w i s e , w o u l d b e
debarred from making any order with regard to the possession, delivery, HC-NIC Page 30 of 58
disposal or distribution of any essential commodity, seized in pursuance of an order made
under Section 3. Thus, a Magistrate will have no jurisdiction to grant relief against
seizure under Section 457, Cr.P.C. Section 6−A makes the necessary provision for the

confiscation of essential commodities seized in pursuance of an order made under Sec.

3 in relation thereto the Collector of the district of the Presidency−Town, in which such
c o m m o d i t yi s s e i z e d , m a y order confiscation, if he is
s a t i s f i e d t h a t t h e r e h a s b e e n a c o n t r a v e n t i o n of s u c h an o r d e r . B u t , no
o r d e r of c o n f i s c a t i o n s h a l l be m a d e u n d e r t h i s S e c , if t h e s e i z e d e s s e n t i a l
commodity has been produced by the producer, without prejudice to any action, which may be
taken under any other provision of this Act. Section 6−A of the Act provides the
p r o c e d u r e t o b e a d o p t e d b y t h e
C o l l e c t o r , before passing order for c o n f i s c a t i o n , which enacts that after
i s s u i n g of n o t i c e , an o p p o r t u n i t y h a s to be g i v e n to t h e a g g r i e v e d p a r t y ,
f o r c o n t e s t i n g t h e s a m e . T h e C o l l e c t o r , a f t e r g i v i n g h i m a h e a r i n g , h a s to
d e c i d e t h e o b j e c t i o n a n d p a s s an o r d e r e i t h e r c o n f i s c a t i n g t h e p r o p e r t y
or refusing to confiscate the property.
45 I n t h e c a s e o f S h a m b h u D a y a l A g a r w a l a v s . S t a t e o f W e s t B e n g a l
and an other, 1990 (3) SCC 549, the Suprem e Court held that when ever
any essential commodity is seized, pending confiscation under Section 6− A, the Collector has
no power to order release of the commodity in
favour of the owner. Having regard to the scheme of the Act, the object and purpose of the
statute and the mischief it seeks to guard, the
S u p r e m e C o u r t h e l d t h a t t h e w o r d " r e l e a s e " in S e c t i o n 6 − E , is u s e d in t h e
l i m i t e d s e n s e of r e l e a s e f o r s a l e e t c . , so t h a t t h e s a m e b e c o m e s a v a i l a b l e
to the consumer public. It was further held:
"No unqualified and unrestricted power has been conferred on the

Collector of releasing the commodity in the sense of returning it to the
owner or person from whom it was seized even before the proceeding for
confiscation stood completed and before the termination of the prosecution HC-NIC
in the acquittal of the offender. Such a view would render clause (b) of
Sec. 7(1) totally nugatory and would completely defeat the purpose and object of
the Act. The view that the Act itself contemplates a situation
which would render Sec. 7(1) (b) otiose where the essential commodity is
disposed of by the Collector under Sec. 6− A(2) is misconceived. Sec. 6−A does not
empower the Collector to give an option to pay, in lieu of
confiscation of essential commodity, a fine not exceeding the market−value
of the commodity on the date of seizure, as in the case of any animal, vehicle,
vessel or other conveyance seized along with the essential
commodity. Only a limited power of sale of the commodity in the manner
prescribed by Sec. 6−A (2) is granted. The power conferred by Sec. 6−A(2)
to sell the essential commodity has to be exercised in public interest for
maintaining the supplies and for securing the equitable distribution of the
essential commodity."

46 The sum total of the aforesaid discussion is that if a Special Act embodies elaborate provisions
a b o u t d e a l i n g w i t h t h e s e i z e d a r t i c l e s
i n c l u d i n g t h e c o n f i s c a t i o n a n d s u c h s p e c i a l p r o v i s i o n s a r e i n d e p e n d e n t of
t h e p r o v i s i o n s of t h e C r . P . C . a n d p r o t e c t e d by S e c t i o n 5 of t h e C r . P . C . ,
t h e n t h e p r o v i s i o n of s e c t i o n s 4 5 1 or 4 5 7 C r . P . C . , a s t h e c a s e m a y b e ,
would not apply in cases of seizure and confiscation.
47 In t h e a f o r e s a i d c o n t e x t , l e t me l o o k i n t o a D i v i s i o n B e n c h d e c i s i o n
of the Madras High Court in the case of David vs. Shakthivel, Inspector of Police−cum−Station
H o u s e O f f i c e r [ 2 0 1 0 ( 1 ) M a d L J ( C r i ) 9 2 9 ] .
H o n o u r a b l e J u s t i c e R. B a n u m a t h i ( a s H e r L a d y s h i p t h e n w a s ) s p e a k i n g
for the Bench, considered Section 14(4) of the Tamil Nadu Prohibition Act vis−a−vis the powers
o f t h e M a g i s t r a t e u n d e r S e c t i o n 4 5 1 o f t h e
Cr.P.C. Section 14 of the Tamil Nadu Prohibition Act reads as under:
"14.Confiscation how ordered.− (1) When the offender is convicted or

when the person charged with an offence against this Act is acquitted, but
the Court decides that anything is liable to confiscation, such confiscation
shall be ordered by the Court.
(2) Where, during the trial of a case an offence against this Act, the Court
decides that anything is liable to confiscation, the Court shall order the HC-NIC
Page 32 of 58 Created On Fri Dec 15 23:20:01 IST 2017 confiscation:
Provided that no animal, vessel, cart, or other vehicle shall be confiscated

under sub−section (1), or sub−section (2), if the Court after hearing the owner of
such animal, vessel, cart or other vehicle and any person
claiming any right thereto, is satisfied that the owner and such person had
exercised due care in the prevention of the omission of such an offence).
(3) When an offence against this Act has been committed but the
offender is not known, or cannot be found, or when anything liable to
confiscation under this Act and not in the possession of any person cannot be
satisfactorily accounted for, the case shall be inquired into and
determined by the Collector or other Prohibition Officer−in−charge of the
district or by any other officer authorised by the State Government in that
behalf who shall order such confiscation.
Provided that no such order shall be made until the expiration of fifteen days from the date of
seizing the things intended to be confiscated or without hearing the persons, if any,
c l a i m i n g a n y r i g h t t h e r e t o , a n d
evidence, if any, which they produce in support of their claims).

(4) N o t w i t h s t a n d i n g a n y t h i n g c o n t a i n e d in s u b − s e c t i o n s (1) to ( 3 ) , the

C o l l e c t o r or o t h e r P r o h i b i t i o n O f f i c e r I n − c h a r g e of the d i s t r i c t or any o t h e r
officer authorised by the State Government in that behalf is satisfied that an offence has been
committed against this Act and whether or not a
prosecution is instituted for such offence, he may, without prejudice to any other punishment to
which the offender is liable under this Act, order confiscation of any animal, vessel,
cart, or other vehicle used in the commission of such offence:"
The question which was considered by the Division Bench is as under:
"Whether wide power of the Executive under Section 14(4) of TNP Act
transgresses into the power of the Court under Sections 451 or 457 Cr.P.C. In case
of overlapping, powers of Court with Executive the extent of exercise of
discretion by the Court is yet another point failing for our consideration."

The Court proceeded to answer the question as under:
"(16) Section 451 Cr.P.C. enables the Court to pass orders for custody or disposal
of p r o p e r t y during e n q u i r y or tr i a l. S e c t i o n 452 C r . P . C . comes
into operation on conclusion of enquiry or trial. Section 457 Cr.P.C. is a
general provision applicable to all cases where seizure of vehicle is reported to a
Magistrate and vehicle is not produced before a Criminal Court.
Sections 451 and 457 Cr.P.C. somewhat overlap. Section 457 Cr.P.C. reads as under:
(17) Section 457 Cr.P.C. deals generally with all cases where seizure of
property is reported by the police−officer to the Magistrate and vehicle is not
produced before Criminal Court. The Magistrate can act under this Court only
when the seizure of the property is reported to him. He is
entitled to do one of three things; (a) he may pass an order regarding the disposal
of the property; or(b) deliver it to the person entitled to its
possession subject to conditions, if any, imposed; or (c) in his absence pass
an order for its custody and production.
(18) Section 14(1) of TNP Act deals with powers of Court to pass an order of
confiscation at the conclusion of the trial whether the case ends in
conviction or acquittal. Section 14(1) of TNP Act is akin to Section 452
Cr.P.C. Under Section 14(2) of TNP Act, Court is empowered to pass an
order of confiscation during the trial or a case for an offence under Tamil
Nadu Prohibition Act. Powers of Court under Section 14(2) of TNP Act is
akin to Section 451 Cr.P.C.

(19) Section 14(4) of TNP Act starts with non obstante clause vesting with
power of Executive / District Collector or other Prohibition incharge of the District
or any other officer authorised by the State Government, pass orders of
confiscation of vehicle involved in the commission of offence
against Tamil Nadu Prohibition Act notwithstanding whether prosecution is
instituted or not. Main question falling for consideration is when
confiscation proceedings are initiated under Section 14(4) of TNP Act,
whether it takes away jurisdiction of the Court to exercise powers under
Central enactment viz., under Sections 451 or 457 Cr.P.C.
(21) Learned Advocate General submitted that when the vehicle is seized
which is involved in a prohibition offence, power of Court and Executive to order
confiscation of vehicle involved is overlapping. Code of Criminal
Procedure is Central enactment made by virtue of entry to List III of 7th
Schedule to the Constitution. Learned Advocate General fairly submitted that since
power of Executive and power of Court in dealing with the
vehicle and passing orders of confiscation is overlapping to certain extent,
Section 14(4) of TNP Act, a State enactment cannot take away exercise of
jurisdiction of Court under Sections 451 or 457 Cr.P.C. But the learned HC-NIC Page
3 4 o f 5 8 C r e a t e d O n F r i D e c 1 5 2 3 : 2 0 : 0 1I S T 2 0 1 7
Advocate General hastened to submit that exercise of power by the Court
must be with extreme care and caution, keeping in view the object and
spirit of Section 14(4) of the Act which is both punitive and deterrent.
(22) As rightly submitted by the learned Advocate General, Section

14(4) of the Act does not take away the jurisdiction of the Court and
exercise of power under Sections 451 or 457 Cr.P.C. But discretion of Court has
to be exercised judiciously and exercised with due care and caution. Where
seizure of vehicle involved in an offence of prohibition reported to the
M a g i s t r a t e , e x e r c i s e o f d i s c r e t i o n a n d
ordering of interim custody under Sections 451 or 457 Cr.P.C. is not automatic.
Notwithstanding the i n v o l v e m e n t of the v e h i c l e in the
commission of prohibition offence, if there is a utom a ti c exercise of
power by the C o u r t , S e c t i o n 1 4 (4 ) of the Act would b e c o m e a dead
letter. In our view, order of confiscation of a vehicle involved in the
c o m m i s s i o n of o f f e n c e un der S e c t i o n 1 4 (4 ) of TNP Act is not only
punitive but also deterrent. While so, when the vehicle is involved in
the commission of a prohibition offence, exercise of discretion by the Court
with care and caution would serve various purposes. While before passing any
order in respect of the vehicle involved in the commission of prohibition
o f f e n c e , C o u r t s h o u l d k e e p i n v i e w t h e
spirit of Section 14(4) of the Act and the benevolent objects of Tamil
Nadu Prohibition Act."

48 I n t h e c a s e b e f o r e t h e D i v i s i o n B e n c h o f t h e M a d r a s H i g h C o u r t ,
the question was that if the confiscation proceedings are initiated under Section 14(4) of the
T.N.P. Act whether it would take away the jurisdiction of the Court to exercise the
powers under the Central enactment i.e. Sections 451 or 457 of the Cr.P.C. It appears
that the learned Advocate General of the State expressed his views before the
C o u r t as r e g a r d s t h e r e p u g n a n c y . It w a s a r g u e d by t h e l e a r n e d A d v o c a t e
General that the power of the Court and Executive to order confiscation of vehicle involved was
overlapping to a certain extent. The learned Advocate
General pointed out to the Court that the Code of Criminal
P r o c e d u r e is a C e n t r a l e n a c t m e n t m a d e by v i r t u e of E n t r y to L i s t I I I of
Seventh Schedule to the Constitution and as the power of executive and power of Court in
dealing with the vehicle and passing orders of confiscation was overlapping, Section
14(4) of the T.N.P. Act being a HC-NIC Page 35 of 58 Created On Fri Dec 15 23:20:01 IST 2017
State e n a c t m e n t could not be said to take away the e x e r c i s e of
j u r i s d i c t i o n of t h e C o u r t u n d e r S e c t i o n s 4 5 1 or 4 5 7 of t h e C r . P . C . Thus,
t h e D i v i s i o n B e n c h w e n t to a c e r t a i n e x t e n t i n t o t h e i s s u e of r e p u g n a n c y ,
as pointed out by the Advocate General of the State, and ultimately, took the view that the
powers of the Court to release the vehicle under Sections 451 or 457 of the Cr.P.C.
w e r e s a v e d . H o w e v e r , t h e C o u r t
s h o u l d n o t o r d e r r e l e a s e of t h e v e h i c l e on m e r e a s k i n g , b u t s h o u l d k e e p
in v i e w t h e s p i r i t of S e c t i o n 1 4 ( 4 ) of t h e T . N . P . A c t . I h a v e m a d e m y s e l f
v e r y c l e a r t h a t s i t t i n g as a S i n g l e J u d g e , I c a n n o t go i n t o s u c h i s s u e s i . e .
of r e p u g n a n c y or t h e c o n s t i t u t i o n a l v a l i d i t y of S e c t i o n 9 8 ( 2 ) of t h e A c t ,
1949. I should read the statute as it is.
49 In S t a t e of W e s t B e n g a l v s . Subodh Gopal Bose [1954 SCR

5 8 7 : ( A I R 1 9 5 4 SC 9 2 ) ] , it w a s h e l d t h a t t h e S t a t e m e n t of O b j e c t s a n d
R e a s o n s c o u l d be r e f e r r e d to f o r a s c e r t a i n i n g t h e c o n d i t i o n s p r e v a i l i n g at
t h e t i m e w h i c h a c t u a t e d to s p o n s o r t h e B i l l to i n t r o d u c e t h e s a m e a n d
t h e e x t e n t of u r g e n c y a n d t h e e v i l w h i c h w a s s o u g h t to be r e m e d i e d . T h e
P r e a m b l e of an A c t is a l s o an a i d in c o n s t r u i n g t h e p r o v i s i o n s of t h e A c t .
The House of Lords in Attorney−General vs. Prince Ernest Augustus of Hanover, 1957 AC 436,
h e l d t h a t w h e n t h e r e i s a P r e a m b l e i t i s
generally in its recitals that the mischief to be remedied and the scope of the Act are described.
50 T h e s c h e m e o f S e c t i o n 9 8 w o u l d s h o w t h a t t h e t h i n g s m e n t i o n e d
in c l a u s e s ( a ) to ( d ) a r e s t r a i g h t w a y to be c o n f i s c a t e d . B u t in r e s p e c t of
any receptacle, package or covering in which any of the articles liable to confiscation under Sub−
S e c t i o n ( 1 ) a r e f o u n d a n d t h e a n i m a l s , c a r t s ,
vessels, or other conveyances used in carrying any such articles they are not to be confiscated
straightway but they are liable to confiscation.

There is understandable distinction between the things which must be straightway confiscated as

provided by Section 98(1) and the things which are liable to confiscation.
This should be in the very nature of things. Things like intoxicant, hemp, mhowra flowers,
molasses, materials, still utensil, implement or apparatus in respect of which
o f f e n c e a p p e a r s to h a v e b e e n c o m m i t t e d u n d e r t h e B o m b a y P r o h i b i t i o n
A c t s h o u l d s t r a i g h t w a y be c o n f i s c a t e d b e c a u s e t h e i r p o s s e s s i o n p e r se is
p r o h i b i t e d . T h e y m u s t be c o n f i s c a t e d b e c a u s e t h e y c a n n o t be r e t u r n e d
o t h e r w i s e to t h e p e r s o n to w h o m it is r e t u r n e d w o u l d be c o m m i t t i n g t h e
same offence over again. They are articles, the possession of which is per se prohibited in view
of the provisions contained in the Bombay Prohibition Act. But vessels, conveyances,
carts and animals used for transport of such prohibited articles are not per se
prohibited and therefore, they cannot be straightway confiscated. They are liable to
c o n f i s c a t i o n in v i e w of t h e u s e m a d e of s u c h t h i n g s . S e c t i o n 99 p r o v i d e s
the procedure to be followed by the Court in respect of the things liable to confiscation before
they are confiscated. Section 99 provides as under :
"99. When during the trial of a case for an offence under this Act the court
decides that anything is liable to confiscation under the foregoing section,
the Court may after hearing the person, if any, claiming any right thereto
and the evidence if any, which he produces in support of his claim order
confiscation or in the case of any article other than an intoxicant, hemp,
mhowra flowers or molasses give the owner an option to pay fine as the
court deems fit in lieu of confiscation :
Provided that no animal, cart, vehicle or other con veya n ce shall be

confiscated if the owner thereof satisfies the court that he had exercised
due care in preventing the commission of the offence."
It a p p e a r s that the a r t i c l e s w h i c h are l i a b l e to c o n f i s c a t i o n can

o n l y be c o n f i s c a t e d a f t e r h e a r i n g t h e p e r s o n c l a i m i n g a n y r i g h t t h e r e t o
and the evidence if any which he produces in support of his claim. The HC-NIC Page 37 of 58
p r o v i s o to S e c t i o n 9 9 m a k e s it a b u n d a n t l y c l e a r t h a t v e s s e l or v e h i c l e or
other conveyance cannot be confiscated if the owner satisfies the Court that he had exercised
due care in preventing the commission of the offence. Therefore, when anything liable
to confiscation is to be confiscated the Court has to hear the person claiming any right thereto.
S u c h a p e r s o n h a s a r i g h t to l e a d e v i d e n c e in s u p p o r t of h i s c l a i m . He
has also an option to pay fine in lieu of confiscation. In respect of the vehicle or conveyance the
s a m e c a n n o t b e c o n f i s c a t e d i f t h e o w n e r
s h o w s t h a t he h a d t a k e n s u f f i c i e n t c a r e to p r e v e n t t h e c o m m i s s i o n of t h e
o f f e n c e . He c a n do so by l e a d i n g e v i d e n c e . T h e r e f o r e , b e f o r e t h e C o u r t
p r o c e e d s to c o n f i s c a t e a v e h i c l e , v e s s e l or a c o n v e y a n c e , it m u s t g i v e an
o p p o r t u n i t y to t h e o w n e r t h e r e o f to s h o w w h e t h e r he h a d u s e d s u f f i c i e n t
c a r e to p r e v e n t t h e c o m m i s s i o n of t h e o f f e n c e . In f a c t b e f o r e an o r d e r of
c o n f i s c a t i o n is p a s s e d an i n q u i r y as c o n t e m p l a t e d by S e c t i o n 99 w o u l d

be made. Such an inquiry is to be made in respect of the articles liable to confiscation and not
those which are required to be confiscated as a
necessary corollary as provided in Section 98(1).
T h e o r d e r of c o n f i s c a t i o n is n o t a c o n s e q u e n t i a l o r d e r w h i c h m u s t
f o l l o w t h e f i n d i n g s of f a c t in t h e c a s e a n d a d u t y is c a s t on t h e C o u r t to
c o n f i s c a t e a n y t h i n g in r e s p e c t of w h i c h t h e o f f e n c e a p p e a r s to h a v e b e e n
committed. One should not ignore distinction made by the Legislature between Sections 98(1)
and 98(2) of the Bombay Prohibition Act. Section 98(1) provides for confiscation of certain
things in respect of which an offence appears to have been committed. In respect of those things
such as intoxicant, hemp, mhowra flowers, molasses, materials still utensil, implement or
a p p a r a t u s i n r e s p e c t o f w h i c h a n o f f e n c e
appears to have been committed they are straightway to be confiscated. As soon as the Court
c o m e s to t h e c o n c l u s i o n t h a t in r e s p e c t of t h e
articles set out above the offence appears to have been committed, under HC-NIC Page 38 of 58
the Bombay Prohibition Act, the Court has no option but to confiscate those articles. Sub−
S e c t i o n( 2 ) m a k e s a d i s t i n c t d e p a r t u r e i n r e s p e c
t o f these things or articles which are not to be confiscated straightway but which
are liable to c o n f i s c a t i o n a n d t h e things which
are liable t o c o n f i s c a t i o n h a v e to be d e a l t w i t h as p r o v i d e d by
S e c t i o n 9 9 . T h e r e f o r e , in r e s p e c t of t h e t h i n g s w h i c h a r e n o t to be
c o n f i s c a t e d b u t w h i c h a r e l i a b l e to t h e c o n f i s c a t i o n he C o u r t h a s to
f o l l o w t h e p r o c e d u r e p r e s c r i b e d in Section99 before the order of confiscation in
respect of such things could be passed. It c a n n o t , therefore, be s
aid that the order o f c o n f i s c a t i o n is a m e r e c o n s e q u e n t i a l
o r d e r f o l l o w i n g t h e f i n d i n g s of f a c t r e c o r d e d b y t h e C o u r t . I t m a y b e
t h a t a p e r s o n m a y b e h e l d g u i l t y o f p o s s e s s i o n of l i q u o r i m p o r t e d in t h e
m o t o r t r a c k a n d y e t t h e t r u c k n e e d n o t be c o n f i s c a t e d if it is f o u n d t h a t
it b e l o n g s to s o m e o t h e r p e r s o n w h o h a d e x e r c i s e d d u e c a r e f o r
p r e v e n t i n g t h e c o m m i s s i o n of t h e o f f e n c e . To t a k e a s i m p l e i l l u s t r a t i o n , a
p e r s o n in t r a n s p o r t b u s i n e s s w a s a p p r o a c h e d w i t h a r e q u e s t t h a t t h e
t r u c k is to be h i r e d f o r t r a n s p o r t i n g v e g e t a b l e s a n d w h i l e l o a d i n g
v e g e t a b l e s a f e w b o t t l e s of l i q u o r w e r e a l s o l o a d e d . If a s e a r c h of t h e
t r u c k is t a k e n a n d b o t t l e s a r e r e c o v e r e d t h e p e r s o n w h o hired the truck and
transported vegetables would be in possession of the bottles and would be liable for possession
of liquor. But in such circumstances, it is unconceivable that the motor truck could also
be straightway confiscated. Therefore, before the motor truck could be confiscated
the Court must make an inquiry as envisaged by Section 99 a n d g i v e an
o p p o r t u n i t y to t h e o w n e r of t h e m o t o r t r u c k to s h o w t h a t he h a d
e x e r c i s e d d u e c a r e f o r p r e v e n t i n g t h e c o m m i s s i o n of t h e o f f e n c e a n d if
t h e C o u r t is s a t i s f i e d t h a t he h a d e x e r c i s e d d u e c a r e , t h e t r u c k c a n n o t be
c o n f i s c a t e d . T h e r e f o r e , it c a n n o t be s a i d t h a t in a l l c a s e s t h e o r d e r of
confiscation is a consequential order or that there is a duty cast on the Court to confiscate every
article coming before the Court trying the offences under the Bombay Prohibition Act.
HC-NIC Page 39 of 58 Created On Fri Dec 15 23:20:01 IST 2017 51

I am unable to agree with the submission of Mr. A.D. Shah, the
learned Amicus Curiae that the Court should read into Section 98(2) of the Act, 1949, the
power of the Magistrate to release the vehicle in
exercise of power under Sections 451 or 457 of the Cr.P.C., as the case may be, otherwise Section
99 of the Cr.P.C. would be rendered redundant.
In my view, the entire purpose of the legislation would be defeated if any other literal
c o n s t r u c t i o n w a s t o b e a d o p t e d . I a m i n
agreement with the submission of Mr. Raju, the learned Amicus Curiae that the words "during
the trial of a case" in Section 99 of the Act,
s h o u l d n o t be c o n s t r u e d as at a n y s t a g e of t h e t r i a l . In my v i e w , M r .
R a j u , t h e l e a r n e d A m i c u s C u r i a e , is r i g h t in s u b m i t t i n g t h a t S e c t i o n 99 of
t h e A c t c o m e s i n t o p l a y w h e n t h e C o u r t d e c i d e s to p a s s an a p p r o p r i a t e
order as regards the disposal of the muddamal property under Section 452 of the Code of
C r i m i n a l P r o c e d u r e . S e c t i o n 4 5 2 c o n t e m p l a t e s
d i s p o s a l of p r o p e r t y at t h e c o n c l u s i o n of t h e t r i a l a n d s a y s t h a t w h e n an
i n q u i r y or t r i a l f o r a n y C r i m i n a l C o u r t is c o n c l u d e d , t h e C o u r t m a y m a k e
such order as it thinks fit for its disposal. This Section 452 refers to a stage when the
t r i a l i s c o n c l u d e d .T h e w o r d " i n q u i r y "i n S e c t i o n 4 5 2
s h o u l d be c o n s t r u e d as o n e n e c e s s a r y f o r t h e d i s p o s a l of t h e p r o p e r t y i . e .
confiscation, etc. The word "concluded" in Section 452 means, in my opinion, "concluded after
a full hearing with a final judgment for determination of the case against the
accused". For, clearly an order under Section 452 can be made only on the basis of
the evidence recorded in the inquiry or trial, and in accordance with the findings, the
M a g i s t r a t e m a y a r r i v e at w i t h m a t e r i a l . T h e r e f o r e , S e c t i o n 99 c o m e s i n t o
p l a y on c o n c l u s i o n of t h e t r i a l i . e . w h e n t h e C o u r t d e c i d e s to c o n f i s c a t e
the vehicle. At that stage, the Court may conduct a formal inquiry and in HC-NIC Page 40 of 58
s u c h an i n q u i r y , an o p p o r t u n i t y h a s to be g i v e n to t h e p e r s o n c l a i m i n g
t h e p o s s e s s i o n of t h e v e h i c l e . At t h a t s t a g e , t h e p r o v i s o to S e c t i o n 99
c o m e s i n t o p l a y . In a c c o r d a n c e w i t h t h e p r o v i s o , t h e o w n e r m a y a d d u c e
necessary evidence to satisfy the Court that he had exercised due care in preventing the
commission of the offence and although the accused
p e r s o n s m a y be h e l d g u i l t y a n d c o n v i c t e d , y e t t h e v e h i c l e i n v o l v e d in t h e
c o m m i s s i o n of t h e o f f e n c e m a y n o t be c o n f i s c a t e d . T h e r e i s o n e m o r e
r e a s o n to t a k e t h i s v i e w . In S e c t i o n 9 9 , t h e w o r d s a r e " g i v e t h e o w n e r an
o p t i o n to p a y f i n e as t h e C o u r t d e e m s f i t in l i e u of c o n f i s c a t i o n " . T h e
question of payment of fine would come only on conclusion of the trial and not at an earlier stage.
52 T h e q u e s t i o n w h e t h e r a p r o v i s i o n is d i r e c t o r y or m a n d a t o r y " a r i s e s
out of a phenomenon, judicially noticed, but otherwise disputed, that sometimes the legislature
d o e s n o t s a y w h a t i t m e a n s . " W h e n t h e
l e g i s l a t u r e e m p l o y s t h e e x p r e s s i o n ' s h a l l ' it m u s t n o r m a l l y be c o n s t r u e d
to mean 'shall' and not 'may'. Indeed as Cotton L. J, once observed the word 'may' never can

mean 'must', so long as the English retains its meaning Re: Baker (1890) 44 Ch D
2 6 2 , a t p . 2 4 0 . " T h e q u e s t i o n
w h e t h e r a s t a t u t e is m a n d a t o r y or d i r e c t o r y d e p e n d s u p o n t h e i n t e n t of
t h e l e g i s l a t u r e a n d n o t u p o n t h e l a n g u a g e in w h i c h t h e i n t e n t is c l o t h e d .
M e a n i n g a n d i n t e n t i o n of t h e l e g i s l a t u r e m u s t a l o n e g o v e r n a n d t h e s e
are to be ascertained, not only from the phraseology of the provision but also by considering its
n a t u r e , i t s d e s i g n a n d t h e c o n s e q u e n c e w h i c h
w o u l d f o l l o w f r o m c o n s t r u i n g it o n e w a y or t h e o t h e r " . [ S e e : C r a w f o r d
on Construction of Statutes, 1940 Edn. Art. 261].
53 T h e S u p r e m e C o u r t i n t h e c a s e o f P r a t a p S i n g v s . K r i s h n a G u p t a
reported in AIR 1956 SC 140 observed as under:
"we deprecate this tendency towards technicality; it is the substance that
counts and must take precedence over mere form. Some rules are vital and go to
the root of the matter; they cannot be broken; others are only directory
and a breach of them can be overlooked provided there is substantial
compliance with the rules read as whole and provided no prejudice
ensues; and when the legislature does not itself state which
Judges must determine the matter and exercising a nice discrimination,
sort out one class from the other along broad based, commonsense lines".
(Underlining supplied)
54 In a task such as this viz., the Courts cannot safely go further than that in each case, it must
l o o k t o t h e s u b j e c t − m a t t e r ,c o n s i d e r t h e
i m p o r t a n c e of t h e p r o v i s i o n t h a t h a s b e e n d i s r e g a r d e d a n d t h e r e l e v a n c e
of that provision to the general objective intended to be secured by the Act. The language is not
always a sure index. The provision may be directory in form, but mandatory in
s u b s t a n c e . S o m e p r o v i s i o n s i n a
s t a t u t e m a y be m a n d a t o r y s o m e o t h e r s m e r e l y d i r e c t o r y . T h e d i f f e r e n c e
a r i s e s w h e r e t h e l e g i s l a t u r e h a s u s e d a l a n g u a g e of a p p a r e n t c o m p u l s i v e
f o r c e , b u t h a s n o t p r e s c r i b e d t h e c o n s e q u e n c e of i t s d i s r e g a r d . No r u l e of
general application is possible to be enunciated either. But some tests which the Courts have
evolved have worked effectively and with reasonable assurance of success.
55 F u r t h e r m o r e in the P r e s i d e n t i a l Election Case reported in AIR

1974 SC 1682, the Hon'ble Chief Justice of the Apex Court speaking on behalf of a seven−Judge
Bench had specifically held as follows (Para
13) :

"In determining the question whether a provision is mandatory or

directory, the subject−matter, the importance of the provision, the relation
of that provision to the general object intended to be secured by the Act
will decide whether the provision is directory or mandatory. It is the duty
of the courts to get at the real intention of the Legislature by carefully
attending to the whole scope of the provision to be construed. 'The key to the
opening of every law is the reason and spirit of the law, it is the
animus imponentis, the intention of the law maker expressed in the law HC-NIC
Page 42 of 58 Created On Fri Dec 15 23:20:01 IST 2017 itself, taken as a whole'."
56 From the aforesaid settled pr i n ci ples of law as well as from a

p l e t h o r a of o t h e r j u d g m e n t s of t h e S u p r e m e C o u r t , it is q u i t e a p p a r e n t
that under certain circumstances, "shall" can be considered as "may", but ordinarily, the Courts
s h o u l d c o n s i d e r i t m a n d a t o r y u n l e s s t h a t
i n t e r p r e t a t i o n l e a d s to s o m e a b s u r d i n c o n v e n i e n t c o n s e q u e n c e s or is at
v a r i a n c e w i t h t h e i n t e n t of t h e L e g i s l a t u r e to be c o l l e c t e d f r o m o t h e r p a r t
of the Act or is bound to cause failure of justice.
57 I n t h e c a s e o f M . P e n t i a h v s . M u d d a l a V e e r a m a l l a p p a [ A I R 1 9 6 1
SC 1107], the Supreme Court had held, quoting with approval a passage from Maxwell that if
the choice is between two interpretations, the narrower of which would fail to achieve
the manifest purpose of legislation I should avoid a construction which would reduce
the l e g i s l a t i o n to f u t i l i t y . To the s a m e e f f e c t is the d e c i s i o n of the S u p r e m e
C o u r t in t h e c a s e of S i r a j − u l − H a q K h a n v s . T h e S u n n i C e n t r a l B o a r d of
W a q f , U.P. [AIR 1959 SC 198] in w h i c h it has been s t r e s s e d tha t it is a w e l l −
s e t t l e d r u l e of c o n s t r u c t i o n t h a t t h e C o u r t s s h o u l d be s l o w to a d o p t
a c o n s t r u c t i o n w h i c h t e n d s to m a k e a n y p a r t of t h e s t a t u t e m e a n i n g l e s s
or i n e f f e c t i v e . No e x c e p t i o n c a n be t a k e n to t h e p r i n c i p l e l a i d d o w n by
t h e S u p r e m e C o u r t in t h e a f o r e s a i d t w o c a s e s . T h e c r u x of t h e m a t t e r in
t h e p r e s e n t c a s e is as to w h a t w a s t h e o b j e c t s o u g h t to be a c h i e v e d . T h e
o b j e c t s o u g h t to be a c h i e v e d is to c r e a t e d e t e r r e n t a n d i m p l e m e n t t h e
prohibition policy in the State effectively.
The object of all interpretations is to discover the intention of the framers of the statutes and
t h a t i n t e n t i o n m u s t b e d e d u c e d f r o m t h e
l a n g u a g e u s e d . T h e i n t e n t i o n of L e g i s l a t u r e is n o t to be s p e c u l a t e d on as
pointed out by Lord Watson in Salomon vs. A. Salomon and Co. Ltd.
HC-NIC Page 43 of 58 Created On Fri Dec 15 23:20:01 IST 2017 (1897) AC 22, 38]:
"'Intention of the Legislature' is a common but very slippery phrase, which,

popularly understood, may signify anything from intention embodied in positive
enactment to speculative opinion as to what the Legislature
probably would have meant, although there has been an omission to enact

it. In a Court of law or equity, what the Legislature intended to be done or not to
be done can only be legitimately ascertained from what it has
chosen to enact, either in express words or by reasonable and necessary
implication."
C a s u s o m i s s u s c a n n o t be c r e a t e d or s u p p l i e d . A s t a t u t e s h a l l n o t be
e x t e n d e d to m e e t a c a s e f o r w h i c h p r o v i s i o n h a s c l e a r l y n o t b e e n m a d e .
As l a i d d o w n by t h e J u d i c i a l C o m m i t t e e of t h e P r i v y C o u n c i l in C r a w f o r d
vs. Spooner [(1846) 8 Moore PC 1]:
"We cannot aid the Legislature's defective phrasing of an Act, we cannot

add and mend, and, by construction, make up deficiencies which are left there."
58 T h e a m e n d m e n t i n S e c t i o n 9 8 ( 2 ) o f t h e A c t , 1 9 4 9 , i n m y v i e w , i s
r e g u l a t o r y in n a t u r e a n d w h e t h e r it c a n be r e g a r d e d as u l t r a v i r e s a n y of
t h e A r t i c l e s of t h e C o n s t i t u t i o n of I n d i a is f o r a D i v i s i o n B e n c h to l o o k
into as and when the validity is challenged.
59 I have already made myself clear that I do not have the jurisdiction to go into
t h e i s s u e o f r e p u g n a n c y , o r o t h e r w i s e , t h e
constitutional validity of Section 98(2) of the Act, 1949.
60 I take notice of one somewhat i den ti ca l pr ovi si on in the Delhi

Excise Act (10 of 2010) by which the general provisions of Section 451 HC-NIC Page 44 of 58
of t h e C r . P . C . w i t h r e g a r d to t h e c u s t o d y a n d d i s p o s a l of t h e p r o p e r t y h a s
b e e n c u r t a i l e d . T h e S u p r e m e C o u r t in t h e c a s e of S t a t e ( N C T of D e l h i )
vs. Narender [AIR 2014 SC (Supp.) 1864] considered Section 61 of the Delhi Excise Act. In the
s a i d c a s e , a c a r w a s s e i z e d c o n t a i n i n g h u g e
q u a n t i t y of l i q u o r . D u r i n g t h e c o u r s e of t h e i n v e s t i g a t i o n , t h e r e s p o n d e n t
t h e r e i n c l a i m i n g to be t h e o w n e r of t h e v e h i c l e f i l e d an a p p l i c a t i o n f o r i t s
r e l e a s e on s e c u r i t y b e f o r e t h e M e t r o p o l i t a n M a g i s t r a t e . T h e M a g i s t r a t e
r e j e c t e d t h e a p p l i c a t i o n on t h e g r o u n d t h a t he h a d no p o w e r to r e l e a s e
t h e v e h i c l e s e i z e d in c o n n e c t i o n w i t h t h e o f f e n c e u n d e r t h e D e l h i E x c i s e
A c t . T h e r e s p o n d e n t t h e r e i n , t h e r e a f t e r , f i l e d an a p p l i c a t i o n b e f o r e t h e
H i g h C o u r t u n d e r S e c t i o n 4 8 2 of t h e C r . P . C . a s s a i l i n g t h e o r d e r p a s s e d
by t h e M e t r o p o l i t a n M a g i s t r a t e . T h e H i g h C o u r t o r d e r e d t h e r e l e a s e of
t h e v e h i c l e . T h e S t a t e , b e i n g d i s s a t i s f i e d w i t h t h e o r d e r p a s s e d by t h e
High Court, c h a l l e n g e d the same before the Supr em e Court. Before the
S u p r e m e C o u r t , it w a s a r g u e d by t h e S t a t e t h a t S e c t i o n 61 of t h e A c t
p u t s an e m b a r g o on t h e j u r i s d i c t i o n of C o u r t s . T h e S u p r e m e C o u r t t o o k
notice of Section 61 of the Delhi Excise Act in para 9 of the judgment. Para 9 reads as under:

"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,
i m p l e m e n t , a p p a r a t u s o r a n y
r e c e p t a c l e , p a c k a g e , v e s s e l , a n i m a l , c a r t , or o t h e r c o n v e y a n c e u s e d
in c o m m i t t i n g a n y o f f e n c e , is s e i z e d or d e t a i n e d u n d e r t h i s A c t , no
c o u r t s h a l l , n o t w i t h s t a n d i n g a n y t h i n g to t h e c o n t r a r y c o n t a i n e d in
a n y o t h e r l a w fo r t he t i m e b e i n g in f o r c e , h a v e j u r i s d i c t i o n to m a k e
any order with regard to such property."
In para 10 of the judgment, the Supreme Court observed as under:
"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."
While allowing the appeal of the State, the Supreme Court

observed in para 11 as under:
"It is relevant here to state that in the present case, the High Court, while releasing
the vehicle on s e c u r i t y has e x e r c i s e d 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 i n q u i r y or t r i a l u n d e r 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 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
d i s p o s a l of p r o p e r t y , if s e i z e d by an o f f i c e r and not p r o d u c e d
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 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, Sections 451, 452 and 457 of the Code must yield
to the provisions of the Act and there is no escape from the conclusion that HC-NIC
the Magistrate or for that matter the High Court, while dealing with the
case 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...."
In para 13, the Supreme Court considered one of its own

decisions in the case of Oma Ram vs. State of Rajasthan [(2008) 5 SCC 502] and observed as under:
"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. S t a t e of R a j a s t h a n ( 2 0 0 8 ) 5 SCC 502 : (AIR 2008 SC
(Supp) 1844 : 2008 AIR SCW 3595), which upheld a somewhat similar
provision existing in the Rajasthan Excise Act."
61 I may refer to the decision in the case of Oma Ram vs. State of Rajasthan and others [2008
A I R S C W 3 5 9 5 ] . I n t h e s a i d c a s e , t h e
c h a l l e n g e b e f o r e t h e H i g h C o u r t of R a j a s t h a n w a s to t h e v i r e s of c e r t a i n
p r o v i s i o n s of t h e R a j a s t h a n E x c i s e A c t , 1 9 5 0 . T h e p r a y e r w a s to d e c l a r e
i n c o r p o r a t i o n of S e c t i o n 5 4 ( k a ) a n d S u b − s e c t i o n s ( 4 ) to ( 9 ) in S e c t i o n 69
of the Excise Act as ultra vires. Section 69(6) of the Act reads as under:
"69. What things are liable to confiscation− ....
....
(6) Whenever any means of conveyance as referred to in clause (e) of sub−

section (1) is seized in connection with commission of an offence under
this Act, the Excise Commissioner or any officer authorised in this behalf by the
State Government shall have, and, notwithstanding anything contained
in any law for the t i m e b e i n g in f o r c e a n y c o u r t , t r i b u n a l or

other authority shall not have jurisdiction to make order with regard to
the possession, delivery, disposal, release of such means of conveyance."
It was argued before the Supreme Court that according to the HC-NIC Page 47 of 58
p r o v i s i o n s of S e c t i o n s 4 5 1 to 4 5 7 of t h e C r . P . C . , t h e C r i m i n a l C o u r t h a s
t h e j u r i s d i c t i o n to r e l e a s e a n y p r o p e r t y s e i z e d or r e c o v e r e d d u r i n g a n y
i n q u i r y or t r i a l . By t h e a m e n d m e n t , t h e p o w e r s of t h e C o u r t f o r r e l e a s e
of a n y p r o p e r t y h a s b e e n c u r t a i l e d . T h e c h a l l e n g e to S e c t i o n 5 4 A a n d
S e c t i o n 6 9 ( 6 ) w i t h r e g a r d to a b o v e w e r e m a d e on t h e g r o u n d t h a t t h e y
w e r e u n c o n s t i t u t i o n a l , a r b i t r a r y , u n r e a s o n a b l e a n d v i o l a t i v e of A r t i c l e s
1 4 , 1 9 , 2 0 , 21 a n d 3 0 1 of t he C o n s t i t u t i o n . It wa s s u b m i t t e d t h a t t he
power conferred on the judicial Courts by virtue of Sections 451 to 457 of the Cr.P.C. had been
curtailed or taken away, and indirectly, the power of revision of the Sessions Judge or
t h e H i g h C o u r t a n d t h e
i n h e r e n t p o w e r s of t h e H i g h C o u r t u n d e r S e c t i o n 4 8 2 of t h e C r . P . C . h a d
also been curtailed. I may quote para 6 of the judgment, which reads as under:
"In support of the appeals, it was submitted that as per the provisions of
Sections 451 to 457 of the Code of Criminal Procedure, 1973 (in short the
'Cr.P.C'), the criminal court has jurisdiction to release any property seized
or recovered during any enquiry or trial. By the insertion of Section 54(A)
of the Rajasthan Excise Amendment Ordinance, 2000 which was later on
substituted by the Amendment Act along with Section 54A, Section 69 has
also been amended and as per amended sub−section (6) of Section 69 it has been
provided that whenever any means of conveyance is seized in connection with
commission of offence under the Act, the Excise Commissioner or any
officer authorized in this behalf by the State Government shall have and
n o t w i t h s t a n d i n ga n y t h i n g c o n t a i n e d i n a n y
law for the time being in force, any Court, Tribunal or other Authority
shall not have jurisdiction to make order with regard to the possession, delivery,
disposal or release of such conveyance. Grievance was that in view of the
aforesaid provisions the criminal courts were not invoking
jurisdiction and the power of the court has been taken away. Challenge to
Section 54A and Section 69(6) were made on the ground that they are
unconstitutional, arbitrary, unreasonable and violative of Articles 14, 19, 20, 21 and
301 of the C o n s t i t u t i o n . It was s u b m i t t e d that the power s
conferred on judicial courts by virtue of Sections 451 to 457, Cr.P.C. has been
curtailed or have been taken away and indirectly the power of
revision of Sessions Judge or the High Court and inherent power of the
High Court under Section 482, Cr.P.C. has been curtailed."
HC-NIC Page 48 of 58 Created On Fri Dec 15 23:20:01 IST 2017 Para 6 refers to
the s u b m i s s i o n s c a n v a s s e d o nb e
h a l f o f t h e
p e t i t i o n e r . In p a r a 7 of t h e j u d g m e n t , t h e S u p r e m e C o u r t h a s n o t e d t h e
response of the learned counsel appearing for the State. Para 7 of the judgment reads as under;
"In response, learned counsel for the State made the reference to Sections
4,5, and 9, Cr.P.C. and Section 41 of the Indian Penal Code, 1860 (in
short the 'IPC')."
In para 8, the Supreme Court considered the objects and reasons of the Rajasthan Excise
Amendment Act, 2000. The Supreme Court, thereafter, considered Article 254 of the
Constitution. In para 9, the Supreme Court noticed that the Amendment Act, 2000
had received assent of the Governor by which Section 54A was inserted and
amendments were made in Section 69 of the existing provisions and Sub−
sections (4) to (9) were inserted. In para 10, the Supreme Court
q u o t e d i t s o w n d e c i s i o n in t h e c a s e of P.N. K r i shn a Lal and others vs.
G o v e r n m e n t of K e r a l a a n d a n o t h e r [ ( 1 9 9 5 ) ( s u p p l . ) 2 S C C 1 8 7 ] . T h e
Supreme Court in para 10 observed as under:
"In P. N. Krishna Lal and Ors. v. Govt. of Kerala and Anr.(1995

(Suppl.) 2 SCC 187) it was observed at para 12 as follows:
"12. The scheme of the Act and the A m e n d m e n t Act is a c o n s i s t e n t

whole, regulating production, manufacture, possession, transport,
p u r c h a s e or sale of i n t o x i c a t i n g l i q u o r s . The A m e n d m e n t Act was
enacted to prohibit mixing or permitting to mix methanol in arrack or intoxicating
drug or failure to take reasonable precautions to prevent acts or omissions, of
m i x i n g m e t h a n o l i n a r r a c k o r
i n t o x i c a t i n g drug or to be in p o s s e s s i o n t h e r e o f with k n o w l e d g e of
its adulteration or to prevent deleterious effect on the health of the
consumers to prevent grievous hurt to human beings or their death.
As a part of it, the burden of proof of the ingredients of the offence
being within the special knowledge of the accused has also been laid on the accused
person. Therefore, though incidentally it trenches
into some of the provisions of the Evidence Act, the Indian Penal Code and the
C o d e , i n i t s p i t h a n d s u b s t a n c e , i t i s an i n t e g r a l
scheme of the Act, which falls within Entry 8 read with Entries 64 HC-NIC Page 49
o f 5 8 C r e a t e dO n F r i D e c 1 5 2 3 : 2 0 : 0 1I S T 2 0 1 7
and 65 of List II of the Seventh Schedule of the Constitution. Under Article 246(3),
the State legislature was competent to enact the Amendment Act.
Therefore, the assent of the President is not
n e c e s s a r y . Even a s s u m i n g that some of the p r o v i s i o n s i n c i d e n t a l l y
trespass into the field of operation of the Central provisions falling
in the Concurrent List, which empower both P a r li a m en t and the
State legislatures to enact the law, the assent given by the President
made Sections 57−A and 57−B valid. The Gazette Notification of the Amendment

A c t h a s b e e n p l a c e d b e f o r e us w h i c h s h o w s t h a t t h e
President has given his assent to the Amendment Act on 1−12−1984.
T h e r e f o r e , by o p e r a t i o n of pr ovi so to clause (2) of A r ti cle 254, the
A m e n d m e n t Act prevails over the r eleva n t p r o v i s i o n s in the Indian
Evidence Act, IPC and the Code in relation to the State of Kerala.""
In para 11, the Supreme Court stated that the decision of P.N.
Krishna Lal (supra) referred to above was a complete answer to most of the submissions
made by the appellants. In paras 15, 16 and 17, the Supreme Court observed as under:
"15. The amendments introduced, in our view, are regulatory in nature

and cannot be regarded as violative of freedom guaranteed under Article 301 of
the Constitution. In Jiluhhai Nanbhai Khachar and Ors. v.
State of Gujarat and Anr (1995 Supp (1) SCC 596), after e x a m i n i n g
the principle of "Eminent Do main" it was held by this Court that Article 300−
A is not attracted and deprivation is in exercise of police power and
said article enjoins that such deprivation should not be without sanction of law.
16. There are similar provisions in the Excise Acts of other States, for
example the Tamil Nadu Excise Act, 1971, Karnataka Excise Act, 1965,
Uttar Pradesh Excise Act, 1910 and the Andhra Pradesh Excise Act, 1968.
The provisions are in Sections 4 and 14A of the Tamil Nadu Act, Sections
43A and 43B of the Karnataka Act, Section 72 of the Uttar Pradesh Act
and Sections 46 and 46A of the Andhra Pradesh Excise Act.
17. Reference may also be made to Deputy Commissioner, Dakshina

Kannada District v. Rudolph Fernandez [2000(3) SCC 306] and
S t a t e of W.B. and Ors. v. S u j i t K u m a r Rana [ 2 0 0 4 (4) SCC 129]
while gauzing the validity of the impugned provisions."
62 In the last, it was s u b m i t t e d that this Cour t may e x e r c i s e its

inherent powers under Section 482 of the Cr.P.C. and order release of HC-NIC Page 50 of 58
the vehicle on stringent terms and conditions. Section 482 of the Cr.P.C. reads as under:
" 4 8 2 . S a v i n g of i n h e r e n t p o w e r s of High C o u r t − N o t h i n g in this

Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be n ecessa r y to give effect to any
order under this Code, or to prevent abuse of the process of any Court
or otherwise to secure the ends of justice."
63 F r o m a bare perusal of the aforementioned provision, it is

m a n i f e s t t h a t t h e i n h e r e n t p o w e r s of t h e H i g h C o u r t is s a v e d o n l y in a
case where an order has been passed by the Criminal Court which is required to be set aside to

s e c u r e t h e e n d s o f j u s t i c e o r w h e r e t h e
p r o c e e d i n g p e n d i n g b e f o r e a C o u r t a m o u n t s to a b u s e of t h e p r o c e s s of
C o u r t . It i s , t h e r e f o r e , e v i d e n t t h a t t h e p o w e r u n d e r S e c t i o n 4 8 2 of t h e
C o d e c a n be e x e r c i s e d by t h e H i g h C o u r t in r e l a t i o n to a m a t t e r p e n d i n g
b e f o r e a C o u r t ; w h i c h in t h e c o n t e x t of t h e C o d e of C r i m i n a l P r o c e d u r e
w o u l d m e a n "a C r i m i n a l C o u r t " or w h e r e a p o w e r is e x e r c i s e d by t h e
Court under the Code of Criminal Procedure. Once it is held that the Criminal Court had no
power to order interim release of the seized vehicle in exercise of the powers under
S e c t i o n s 4 5 1 o r 4 5 7 o f t h e
C r . P . C . , t h e q u e s t i o n of t h e H i g h C o u r t e x e r c i s i n g i t s j u r i s d i c t i o n u n d e r
Section 482 of the Code would not arise.
64 T h e S u p r e m e C o u r t i n t h e c a s e o f W e s t B e n g a l a n d o t h e r s v s .
S u j i t K u m a r R a n a [ ( 2 0 0 4 ) 4 S C C 1 2 9 ] h a s t a k e n t h i s v i e w as c o n t a i n e d
in paras 32 to 46. Paras 32 to 46 read as under:
"32. The High Court cannot, thus, in such a situation exercise its
jurisdiction under Section 482 of the Code of Criminal Procedure. The said
provision reads thus :
" 4 8 2 . S a v i n g of i n h e r e n t p o w e r of H i g h C o u r t . − N o t h i n g in t h i s
Code shall be deemed to limit or affect the inherent powers of the HC-NIC Page 51
o f 5 8 C r e a t e dO n F r i D e c 1 5 2 3 : 2 0 : 0 1I S T 2 0 1 7
High Court to make such orders as may be necessary to give effect to any order
made under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice."
33. From a bare perusal of the aforementioned provision, it would be

e v i d e n t t h a t t h e i n h e r e n t p o w e r of t h e H i g h C o u r t is s a v e d o n l y in a c a s e
w h e r e an o r d e r has b e e n p a s s e d by the c r i m i n a l C o u r t w h i c h is r e q u i r e d to
be set a s i d e to s e c u r e the e n d s of j u s t i c e or w h e r e the p r o c e e d i n g p e n d i n g
b e f o r e a C o u r t a m o u n t s to a b u s e of t h e p r o c e s s of C o u r t . It i s , t h e r e f o r e ,
e v i d e n t t h a t p o w e r u n d e r S e c t i o n 4 82 of the C o d e ca n be e x e r c i s e d by the
H i g h C o u r t in r e l a t i o n to a m a t t e r p e n d i n g b e f o r e a C o u r t ; w h i c h in t h e
context of Code of Criminal Procedure would mean 'a criminal Court' or whence a power is
exercised by the Court under the Code of Criminal
P r o c e d u r e . O n c e it is h e l d t h a t t h e c r i m i n a l C o u r t h a d no p o w e r to d e a l
with the property seized under the Act, the question of the High Court's exercising its jurisdiction
under Section 482 of the Codeof Criminal Procedure would not arise.
34. The amendments carried out by the State of West Bengal by reason of Sections 59−A to 59−
G in the Indian Forest Act provide for a complete
Code. The validity or otherwise of the said provisions is not in question before us. An order of
confiscation in respect of a property must be distinguished from an order of forfeiture

t h e r e o f . A l t h o u g h t h e e f f e c t o f
both confiscation and forfeiture of a property may be the same, namely that the property would
vest in the State but the nature of such order having regard to the statutory scheme must
b e h e l d t o b e d i f f e r e n t . A
p r o c e e d i n g for c o n f i s c a t i o n can be i n i t i a t e d i r r e s p e c t i v e of the f a c t t h a t as
to w h e t h e r p r o s e c u t i o n for c o m m i s s i o n of a f o r e s t o f f e n c e has b e e n l o d g e d
or not. A confiscation proceeding, therefore, is independent of a criminal proceeding. We
may also notice that the State has been made liable to
refund the amount which has been deposited pursuant to an auction held in respect of the
confiscated property only in the event the order of
c o n f i s c a t i o n is set a s i d e or a n n u l l e d u n d e r S e c t i o n 5 9 − A ( 4 ) ( b ) t h e r e o f . No
p r o v i s i o n has b e e n m a d e in the s t a t u t e u n l i k e S e c t i o n 6−C of the E s s e n t i a l
Commodities Act, 1955 to the effect that the confiscated property or the amount deposited in
t h e t r e a s u r y p u r s u a n t t o t h e a u c t i o n o f t h e
c o n f i s c a t e d g o o d s w o u l d be r e t u r n e d to the o w n e r t h e r e o f in the e v e n t , the
criminal trial ends in an acquittal.
35. This Court, in this case, is not con cer n ed with the effect of a cq ui tta l vis−a−
v i s a c o n f i s c a t i o n p r o c e e d i n g . T h e r e m a y be a c a s e w h e r e a j u d g m e n t
of a c q u i t t a l h a s b e e n r e n d e r e d n o t on m e r i t of t h e m a t t e r b u t by w a y of
giving benefit of doubt or for certain reasons unrelated to the adjudication on merits as for example
d r o p p i n g o f t h e p r o c e e d i n g a s t h e p r o s e c u t i o n
witnesses did not turn up despite service of summons.
36. This Court in Divisional Forest Officer v. G.V. Sudhakar Rao HC-NIC Page 52 of 58 Created
O n F r i D e c 1 5 2 3 : 2 0 : 0 1 I S T 2 0 1 7
[(1985) 4 SCC 573], we may note, however, approved the decision of a Division Bench of the
A n d h r a P r a d e s h H i g h C o u r t in M o h d . Y a s e e n v.
Forest Range Officer, Flyng Squad, Rayachoti, ((1980) 1 ALT 8) stating :
"14. We find that a later Division Bench consisting of Kondaiah, C. J. and

P u n n a y y a , J. in M o h d . Y a s e e n v. F o r e s t R a n g e O f f i c e r ,
Flying Squad, R a y a c h o t i , (1 9 80 ) 1 Andh LT 8 a p p r o v e d of the view
expressed by Jeewan Reddy, J. in P. K. Mohammad's case. (supra), and held that
the Act contemplates two procedures, one for
c o n f i s c a t i o n of goods for m i n g the s u b j e c t − m a t t e r of the offen ce by
the A u t h o r i z e d O f f i c e r u n d e r s u b − s . (2A ) of S. 44 of the A ct, and
the other for trial of the person accused of the offence so committed
under S. 20 or S. 29 of the Act. The learned Judges held that the Act provides for
a special machinery for confiscation of illicitly
felled timber or forest produce by the Authorized Officer under sub−
s. (2A) of S. 44 e n a c t e d in the g e n e r a l p u b l i c i n t e r e s t to s u p p r e s s
the mischief of ruthless exploitation of Government forests by illicit
felling and removal of teak and other valuable forest produce. They further held

that merely because there wa s an acquittal of the

accused in the trial before the Magistrate due to paucity of evidence or otherwise
did not necessarily entail in nullifying the order of confiscation of the
seized timber or forest produce by the Authorized Officer under sub−
s . ( 2 A ) o f S . 4 4 o f t h e A c t b a s e d o n
his satisfaction that a forest offence had been committed in respect
thereof. We affirm the view expressed by Jeewan Reddy, J. in P. K. Mohammad's
case and by Kondaiah, C. J. and Punnayya, J. in Mohd. Yaseen's case."
37. In State of West Bengal v. Gopal Sarkar, ((2002) 1 SCC 495) this Court followed Sudhakar Rao
(supra) and on construction of sub− section (3) of Section 59−A held :
"On a fair reading of the provision it is clear that in a case where any timber or
other forest produce which is the property of the State Government is
produced under sub−section (1) and an Authorised Officer is satisfied that
a forest offence has been committed in respect of such property he may
pass order of confiscation of the said property (forest produce) together with all
tools, ropes, chains, boats, vehicles and cattle used in committing the offence. The
power of confiscation is independent of any proceeding of prosecution for
the forest offence committed............."(Emphasis supplied)
38. Yet again, in State of Karnataka v. K. A. Kunchindammed, ((2002) 9 SCC 90) this
Court observed that even the expression 'sandalwood' as contained in the Karnataka
Forest Act, 1963 would include 'sandalwood oil'. This Court in no uncertain terms held:
H C - NIC Page 53 of 58 Cr ea ted On Fri Dec 15 23 : 20 : 0 1 IST 2017 "23.

The Karnataka Forest Act is a special statute enacted for the purpose of preserving
the forests and the forest produce in the
State. The Scheme of the Act, as expressed in the Sections, is to vest
power in the authorised officers of the Forest Department for proper
implementation/enforcement of the statutory provisions and for
enabling them to take effecti ve steps for pr eser vi n g the forests and
forest produce. For this purpose certain powers including the power
of seizure, confiscation and forfeiture of the forest produce illegally
removed from the forests have been vested exclusively in them. The
p o s i t i o n is made c l e a r by the non o b s t a n t e c l a u s e in the r e l e v a n t
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 authorised 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 the Cr. P.C. 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
i s v e s t e d i n t h e a u t h o r i s e d
officer under the Act and if he finds that such power is vested in the
authorised 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
s t a t u t e . If in such cases power to grant i n t e r i m c u s t o d y / r e l e a s e of
the seized forest p r o d u c e is vested in the M a g i s t r a t e 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 authorised 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."
39. We m a y n o t i c e t h a t d e s p i t e t h e f a c t t h a t u n d e r t h e K a r n a t a k a A c t ,
the criminal Court is not denuded of its power to pass an order releasing the property as would
b e e v i d e n t i n S t a t e o f K a r n a t a k a v s . K . A .
K u n c h i n d a m m e d [ ( 2 0 0 2 ) 9 S C C 9 0 ] , t h i s C o u r t in S e c t i o n F o r e s t e r a n d
a n o t h e r v. M a n s u r A l i K h a n , ( J T 2 0 0 3 ( 1 0 ) SC 3 9 0 ) , f o l l o w i n g the
decision in State of Karnataka v. K. Krishnan, (JT 2000 (9) SC 356) HC-NIC Page 54 of 58 Created
On Fri Dec 15 23:20:01 IST 2017 held :
"6. While in regard to the power of the High Court to release the vehicle in a
given set of f a c t s c a n n o t be d i s p u t e d , this C o u r t as
noticed by the High Court itself has laid down that such power can
be e x e r c i s e d for good rea son s and in e x c e p t i o n a l cases only. In the
instant case, the only reason given by the High Court for the release
of the vehicle is on the ground that same was in the custody of the officers for
more than one year and there was no likelihood of immediate disposal
of the pending case. This by itself, in our
opinion would not be a ground for the release of the vehicle because this would be
the case in a l m o s t all such cases involving forest
offence. In exceptional cases the Act itself has made a provision for
interim release of the vehicle on the existence of certain conditions
mentioned therein. In the absence of such conditions being fulfilled,
we do not t h i n k t h a t the H i g h C o u r t as a m a t t e r of c o u r s e c o u l d
pass mechanical orders releasing such vehicles.

7. Taking into c o n s i d e r a t i o n the object of the Forest Act and other

relevant considerations, this Court in the abovesaid case of State of
Karnataka v. K. Krishnan (supra) while allowing the said appeal held :
"The Courts cannot shut their eyes and ignore their obligations indicated
in the Act e n a c t e d for the p u r p o s e of p r o t e c t i n g and
safeguarding both the forests and their produce. The forests are not
only the natural wealth of the coun tr y but also p r o t e c t o r of human
life by p r o v i d i n g a clean and u n p o l l u t e d a t m o s p h e r e . We are of the
c o n s i d e r e d view that when any v e h i c l e is s e i z e d on the a l l e g a t i o n
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
d u r i n g s u c h p e n d e n c y,
f u r n i s h i n g a bank g u a r a n t e e should be the m i n i m um c o n d i t i o n . No
party shall be under the impression that release of vehicle 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."
8. From the above dictum of this Court, we find when a vehicle is involved in a forest offence
t h e s a m e i s n o t t o b e r e l e a s e d t o t h e
o f f e n d e r or t he c l a i m a n t as a m a t t e r of r o u t i n e t i l l t he c u l m i n a t i o n
of the proceedings which may include confiscation of such vehicle."
40. In S h a m b h u Dayal Agarwala v. State of West Bengal and

a n o t h e r ( ( 1 9 9 0 ) 3 S C C 5 4 9 ) , t h i s C o u r t i n t e r p r e t i n g s u b − s e c t i o n ( 2 ) of
Section 6A of the Essential Commodities Act vis−a−vis Section 6E thereof, held that there could
b e n o q u e s t i o n o f r e l e a s i n g t h e c o m m o d i t y i n t h e
sense of returning it to the owner or person from whom it was seized even before the proceeding
f o r c o n f i s c a t i o n s t o o d c o m p l e t e d a n d b e f o r e t h e
t e r m i n a t i o n of the p r o s e c u t i o n in the a c q u i t t a l of the o f f e n d e r . T h i s C o u r t
observed that such a view would render clause (b) of Section 7(1) totally nugatory. It was opined :
"It seems to us that Section 6−E is intended to serve a dual purpose, namely (i) to
prevent interference by Courts, etc., and (ii) to
effectuate the sale of the essential commodity under sub−section (2)
and the return of the animal, vehicle, etc., under the second proviso to sub−section
(1) of Section 6−A. In that sense Section 6−E is complementary in
nature." (See also Deputy Commissioner, Dakshina Kannada District

v. Rudolph Fernandes, (2000) 3 SCC 306).
41. In view of the aforementioned binding precedents, we are of the opinion that the
High Court exceeded its jurisdiction in releasing the vehicles in exercise of its jurisdiction
under Section 482 of the Code of Criminal Procedure.
42. In v i e w of our f i n d i n g s a f o r e m e n t i o n e d , the c o n t e n t i o n of the l e a r n e d

c o u n s e l t h a t t h i s C o u r t may n ot e x e r c i s e i ts j u r i s d i c t i o n u n d e r A r t i c l e 1 3 6
of the Constitution of India having regard to the purported findings of the criminal Court,
will have to be judged. As indicated hereinbefore, there
exists a distinction between confiscation and conviction.
43. A confiscation envisages a civil liability whereas an order of forfeiture of the forest−produce
must be preceded by a judgment of conviction. Although indisputably having regard to
the phraseology used in sub− section (2) of Section 59−
A, there cannot be any doubt whatsoever that commission of a forest offence is one of the
r e q u i s i t e i n g r e d i e n t s f o r
p a s s i n g an o r d e r of c o n f i s c a t i o n ; but the q u e s t i o n as to w h e t h e r the o r d e r
of a c q u i t t a l h a s b e e n p a s s e d on t h a t g r o u n d a n d w h a t w e i g h t s h o u l d be
attached thereto is a matter which, in our opinion, should not be gone into at this stage.
44. So far as the submission of Mr. Ghosh in Criminal Appeal No. 453 of 1997 is concerned, it
a p p e a r s , t h e D i s t r i c t J u d g e w h i l e e x e r c i s i n g h i s
a p p e l l a t e p o w e r had set a s i d e the o r d e r of c o n f i s c a t i o n on the g r o u n d t h a t
the notice issued to the respondent herein was invalid in law, leaving at the same time and
directing also the Authorized Officer and Divisional Forest Officer, West Midnapore Division,
t o d e c i d e t h e m a t t e r a f r e s h i n
accordance with law. Consequently, the right of the Authorized Officer is HC-NIC Page 56 of 58
Created On Fri Dec 15 23:20:01 IST 2017 not foreclosed to claim for the respondent that no
action can be taken further in this regard.
45. Yet again a valid proceeding for confiscation of the vehicle can be
i n i t i a t e d o n l y u p o n i s s u a n c e of a p r o p e r n o t i c e a n d w h e r e a f t e r an o r d e r of
confiscation can be passed in accordance with law.
46. The u p s h o t of our a f o r e m e n t i o n e d d i s c u s s i o n is that once a

confiscation proceeding is initiated the jurisdiction of the criminal Court in terms of Section 59−
G of the Act being barred, the High Court also cannot exercise its jurisdiction under Section
4 8 2 o f t h e C o d e o f C r i m i n a l
P r o c e d u r e for i n t e r i m r e l e a s e of the p r o p e r t y . The H i g h C o u r t can e x e r c i s e
such a power only in exercise of its power of judicial review."
65 My f i n a l c o n c l u s i o n is t h a t S e c t i o n 9 8 ( 2 ) of t h e A c t , 1 9 4 9 c u r t a i l s
t h e p o w e r of t h e M a g i s t r a t e to o r d e r i n t e r i m r e l e a s e of t h e s e i z e d v e h i c l e

u n d e r S e c t i o n s 4 5 1 or 4 5 7 of t h e C r . P . C . , as t h e c a s e m a y b e . T h e C o u r t s
b e l o w w i l l h a v e no j u r i s d i c t i o n to o r d e r i n t e r i m r e l e a s e p e n d i n g t h e t r i a l
of t h e s e i z e d v e h i c l e in c o n n e c t i o n w i t h t h e o f f e n c e u n d e r t h e A c t , 1 9 4 9 ,
if the quantity of the liquor recovered exceeds 10 litres in quantity.
66 The Legislature in its wisdom has prescribed a methodology to deal with the
prohibition offences, seizure, confiscation, release, etc.
O n c e s u c h a p r o c e d u r e is p r e s c r i b e d , t h e C o u r t s h a v e to e x a m i n e t h e
r i g h t s of t h e p a r t i e s in a c c o r d a n c e w i t h t h e p r o c e d u r e so p r e s c r i b e d . I am
unable to hold that the Magistrate and Revisional Court have committed any error in rejecting
the applications preferred by the respective applicants under Sections 451 or 457 of the
Cr.P.C. In view of the provisions of Section 98(2) of the Act, 1949, the general provisions laid
down in S u n d e r b h a i A m b a l a l D e s a i vs. S t a t e of G u j a r a t [JT ( 2 0 0 2 ) 10 SC 80]
cannot be pressed into service for release of vehicle from the Court of Magistrate.
67 In the result, all the applications fail and are hereby rejected.
HC-NIC Page 57 of 58 Created On Fri Dec 15 23:20:01 IST 2017 68 I am grateful to Mr. A.D.
S h a h a n d M r . S . V . R a j u , t h e l e a r n e d
senior counsel for their invaluable assistance rendered to this Court as the Amicus Curiae.
I a m a l s o g r a t e f u lt o M r . M i t e s hA m i n , t h e l e a r n e d
Public Prosecutor, who took lot of pains in assisting this Court to decide the issue.
(J.B.PARDIWALA, J.) chandresh HC-NIC Page 58 of 58 Created On Fri Dec 15 23:20:01 IST 2017

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Pareshkumar Jaykarbhai Brahmbhatt vs State Of Gujarat on 15 December, 2017

Pareshkumar Jaykarbhai Brahmbhatt vs State Of Gujarat on 15

R/SCR.A/8521/2017 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL) NO.

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

3 Whether their Lordships wish to see the fair copy of the

4 Whether this case involves a substantial question of law

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 1

as to the interpretation of the Constitution of India or NO any order made thereunder ?

CIRCULATE THIS JUDGEMENT IN THE SUBORDINATE JUDICIARY.

HC-NIC Page 1 of 58 Created On Fri Dec 15 23:20:01 IST 2017

M AD SHAH, MR SV RAJU, SENIOR ADVOCATES AS AMICUS CURIAE MR

2 For the sake of convenience, the Special Criminal Application

4 The facts giving rise to this application may be summarised as under:

4.1 The p e t i t i o n e r h e r e i n is the r e g i s t e r e d o w n e r of a m o t o r car

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 2

5 It a p p e a r s from the materials on r e c o r d that the vehicle in

(a). Section−98(2) of the Gujarat Prohibition Act, 1949, is as under:~

98. Things liable to confiscation :

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 3

(b). Rule−9 of Gujarat Prohibition (Liquor Samples & Determination of

482. Saving of inherent power of High Court. − Nothing in this

In view of the above mentioned facts and c i r c u m s t a n c e s , this

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 4

227. Power of s u p e r i n t e n d e n c e over all courts by the High Court. −

(c). prescribe forms in w h i c h books, entries and accounts

HC-NIC Page 5 of 58 Created On Fri Dec 15 23:20:01 IST 2017

In view of the above mentioned fact, the constitutional power is

Therefore, this citation is not helpful to the applicant.

11. Moreover, I have also considered the citation in case of 'Sundarbhai

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 5

Therefore, this citation is not helpful to the applicant.

1. The Criminal Revision Application No.117/2017 is hereby dismissed.

2. The o r d e r d a t e d 2 7 − 0 9 − 2 0 1 7 , p a s s e d by the C o u r t of the Ld. A d d i t i o n a l

● SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL

9 The learned counsel appearing for the respective applicant

v e h e m e n t l y s u b m i t t e d that the Courts below have c o m m i t t e d a seri ous

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 6

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 8

Court decides to pass an appropriate order as regards disposal of the muddamal

"When the repugnancy between the Central and State Legislations is

HC-NIC Page 11 of 58 Created On Fri Dec 15

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 9

● SUBMISSIONS ON BEHALF OF THE STATE RESPONDENTS :

15 Mr. Amin, the P u b l i c P r o s e c u t o r further submitted that by no

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 10

17 B e f o r e adverting to the r i v a l s u b m i s s i o n s canvassed on e i t h e r

"STATEMENT OF OBJECTS AND REASONS HC-NIC Page 13 of 58 Created On Fri

With a view to preventing the sad incidents of Laththa consumption

It is also provided that conveying vehicles used in transport of

Indian Kanoon - http://indiankanoon.org/doc/50572539/ 11

18 C h a p t e r VII of the Act p r o v i d e s for the o f f e n c e s and p e n a l t i e s .

"65. Penalty for illegal import, etc. of intoxicant or hemp − Whoever,

(a) imports or exports any intoxicant [(other than opium)] or hemp,

(b) manufactures any intoxicant [c] [(other than opium)],

(c) constructs or works any distillery or brewery, HC-NIC Page 14 of 58 Created On

(d) bottles liquor,