The Deputy Commissioner of Excise and Authorized Officer and State of Karnataka vs P. Shambu Poojary

N. Ananda, J.—The learned Sessions Judge while exercising powers u/s 43-E of the Karnataka Excise Act, 1.965 (for short, ''the Act'') has set aside the order of confiscation of vehicle (Tata Indica Car bearing No. KA-20-M-5204 of which respondent is the registered owner. Therefore, State is before this court. I have heard Sri Vijaykumar Majage, learned HCGP for State and. Sri S. Vishwajith Shetty, learned counsel for respondent.

The learned counsel for respondent, relying on Full Bench Judgment of this court, reported in A. Yadava (Deceased by LR) and etc. Vs. The Authorised Officer and Deputy Conservator of Forest, would submit that order passed u/s 43-E of the Act is final and not revisable u/s 401 Cr.P.C.

The learned HCGP, relying on the judgment of this court, reported in M.J. Torgal Vs. State of Karnataka, would submit that order u/s 43-E of the Act passed by learned Sessions Judge is revisable u/s 401 r/w 397 Cr.P.C.

In the Full Bench Judgment of this court, reported in A. Yadava (Deceased by LR) and etc. Vs. The Authorised Officer and Deputy Conservator of Forest, having regard to the provision of section 71-D of the Karnataka Forest Act, 1963 (for short, ''the Forest Act'') has held that order made by learned Sessions Judge u/s 71-D of the Forest Act is final and further there is statutory mandate that such order shall not be questioned before any court of law. In view of aforestated wordings of section 71-D of the Forest Act, this court has held order u/s 71-D of the Forest Act is not revisable u/s 401 or 397 Cr.P.C. and also it cannot be challenged u/s 482 Cr.P.C., we do find similar provision under Karnataka Excise Act. Therefore, objection regarding maintainability raised by learned counsel for respondent is not tenable.

The learned Sessions Judge, without adverting to evidence recorded before the Authorised Officer by placing reliance on the judgment of acquittal made in C.C. No. 1501/2003 has held that vehicle involved in commission of offence is not liable for confiscation. The learned Sessions has held in view of non-compliance of provisions of section 54 of the Act, confiscation is illegal. The learned Sessions Judge has failed to notice the distinction between proceedings before criminal court and confiscation proceedings.

The law is fairly well settled that initiation of criminal proceedings and result of criminal proceedings will have no bearing on confiscation proceedings. Therefore, impugned judgment cannot be sustained.

In the result, I pass the following:-

ORDER

The revision petition is accepted. The impugned judgment is set aside. The matter is remanded to learned Sessions Judge for reconsideration in the light of observations made herein and in accordance with law. The learned Sessions Judge shall decide the appeal within three months from today. Office is directed to send back records along with a copy of this order.