TaxTMI 
TaxTMI 
2008 (4) TMI 675
X X X X Extracts X X X X
X X X X Extracts X X X X
....t in the Excise Act, 1950 by incorporation of Section 9B may be declared ultravires and be struck down; (c) by a further appropriate, writ, order or direction impugned order dated 16.5.2000, passed by respondent No. 2 may be declared invalid and may be quashed and set aside; (d) Pending decision, if any further order is made or action is taken prejudicial to the interest of the petitioner, the same may also be quashed and set aside." 2. The contentions raised on behalf of the appellant in the writ petitions challenging the vires of the provisions were founded on the following allegations: 1. The provisions of the amendment are contrary to Article 254 of the Constitution and without the assent of the President those are ultra vires; 2. the amended provisions are repugnant to the provisions of the Code of Criminal Procedure and the Code of Civil Procedure; 3. The amended provisions confer unguided powers on the Excise Authorities; &nb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e State made the reference to Sections 4,5, & 9 Cr.P.C. and Section 41 of the Indian Penal Code, 1860 (in short the 'IPC'). 8. The objects and reasons of the Rajasthan Excise Amendment Act, 2000 need to be noted. The same is as follows: "Statement of Objects and Reasons: The incidence of unauthorized transportation of excisable articles had increased in recent past and it was noticed that owners of such vehicles were indulging in these activities with impunity. It was also noticed that the vehicles indulging in such transportation even after seizure for commission of the offence were released from courts and were again used for unauthorized transportation of exciseable articles. To check this menace, it was considered necessary to provide that if any means of -conveyance is used in commission of offence under the Rajasthan Excise Act, 1950, then the same shall be liable to be confiscated by order of the Excise Commissioner or the Officer, not below the rank of District Excise Officer as may be authorized by the State Government in this behalf and the owner of such a means of conveyance shall be, deemed to be guilty ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fence has been committed. (b) every still, utensil, implement or apparatus and all materials by means of which such offence has been committed, (c) every excisable article lawfully imported transported, manufactured held in possession or sold alongwith or in addition to any excisable article liable to confiscation under clause (a), (d), every receptacle, package or covering in which any article as aforesaid or any materials, still, utensil, implement or apparatus is or are found together with the other contents --(if any) of such receptacle or package, and (e) every animal, cart, vessel, raft or other conveyance used in carrying such receptacle or package, shall be liable to confiscation. (2) When in the trial of any offence punishable under this Act the Magistrate decides that anything is liable to confiscation under clause (a) to (d) of sub-sec (1) he may order confiscation. Provided that (in case of a thing other than an excisable article he may, in lieu of ordering confiscation, give) the owner of the thing liable to be confiscated an option to pay any such fine as the Magistrate thinks fit. (3) When anything mentioned in sub-section (1) is found in circums....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Central Government or any State Government or any of their undertaking, no order of confiscation of-such means of conveyance shall be passed by the Excise Commissioner or the officer authorised by the State Government in this behalf and the matter shall be referred to the State Government by the Excise Commissioner or the officer authorised by the State Government -in this behalf, for making such orders regarding means of conveyance as the State Government may deem fit. Provided also that before ordering confiscation under this, sub-section the owner of the means of conveyance, referred to in clause (e) of sub-sec. (1), may be given an option to pay in lieu of confiscation, a fine not exceeding the market price of such means of conveyance. (5) Any person aggrieved by an order of confiscation made under sub-sec. (4) may within sixty days from the date of communication to him of such order, appeal to the Divisional Commissioner and the Divisional Commissioner after giving opportunity to the appellant to be heard, shall pass such order as it may think fit, confirming, modifying or annulling the order appealed against. (6) Whenever any means of conveyance as referred to i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder or referred to in Section 9A." Article 254 of the Constitution reads as follows: "(1) If any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any,; provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the Provisions of clause (2),the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament, or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been, .reserved for the consideration of the P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t to the Amendment Act on 1-12-1984. Therefore, by operation of proviso to clause (2) of Article 254, the Amendment Act prevails over the relevant provisions in the Indian Evidence Act, IPC and the Code in relation to the State of Kerala." 11. This is a complete answer to most of the submissions made by the appellants. 12. In State of Karnataka v. K. Krishnan (2000(7) SCC 80) this court while considering a case of forest offence under the Karnataka Forest Act, 1963, observed that the provisions of the Act should be strictly complied with and generally the seized forest produce and the vehicle, boat, tools etc. used in commission of forest offence should not be released and even if the Court is allowed to release the same, the authorized officer must specify reasons therefor and must insist on furnishing of bank guarantee as the minimum condition. In that case the forest produce was transported in violation of the provisions of the Act. The High Court had modified the conditions regarding bank guarantee stipulated by the authorized officer and instead had directed to furnish two like sureties to the extent of Rs.1,50,000/- each for the purpose of getting interim custody of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 in acquittal of the offender. Such a view would render clause (b) of Section 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 Section 7(1)(b) otiose where the essential commodity is disposed of by the Collector under Section 6A(2) is misconceived. Section 6A 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 Section 6A the essential commodity has to be exercised in public interest for maintaining the supplies and for securing the equitable distribution of the essential commodity." 15. ....