Sawai Madhopur Oil and Pulse Industries and ors Vs State of Rajasthan and ors - Citation 773145 - Court Judgment

Judgment:

AR. Lakshmanan, C.J.

1. A bunch of 75 writ petitions were filed challenging the vires of certain provisions of the Rajasthan Excise Act, 1950 (hereinafter to be referred to as the Act). the petitioners in the respective writ petitions have prayed as follows:

(a) By an appropriate writ, order or direction, the incorporation of Section 54(ka) and Sub-Sections (4) to (9) in Section 69 of the Excise Act may be declared ultra vires and be sruck down.

(b) By an appropriate writ, order or direction, the amendment in the Excise Act, 1950, by incorporating Section 9-B may be declared ultra vires and be struck down.

(c) By further appropriate writ, order or direction, the impugned order in the respective writ petitions passed by the respondents may be declared invalid and quashed and set aside.

(d) Pending decision, if any further order is passed or action is taken prejudicial to the interest of the petitioner, the same may also be quashed and set aside.

On behalf of the petitioners, we heard S/Shri Narendra Jain, Manish Bhandari, R.S. Chouhan and R.P. Garg and counsel for the petitioners in the writ petitions mentioned in the scheduled attached, have adopted the their arguments. On behalf the respondents we heard S/Shri S.M. Mehta, Advocate General, assisted by S/Shri Mohd. Rafiq, S.P. Sharma, R.B. mathur and L.M. Bharadwaj.

2. Briefly put, the contentions urged on behalf of the petitioners in this group of matters challenging the vires of the aforesaid provisions have been that:

(a) amended provisions are repugnant to the provisions of the Code of Criminal Procedure and the Code of Civil Procedure.

(b) the provisions in the Amendment Act are contrary to Article 254 of the Constitution of India and without the assent of the President, the same are ultra vires.

(d) By Section-9B, the remedy of judicial review is taken away and the petitioners are remedyless.

3. The respondent State, in its reply filed only in Writ Petition No. 3267/2000, contested the writ petition and has submitted that the Rajasthan Excise Act is within the legislative competence of the State Govenrment under Item No. 8 read with Items 64 and 65 of List-II of the 7th Schedule of the Constitution of India and is a special Act dealing with the right of the State to regulate production, transport, storage, possession and sale of liquor and intoxicating drugs. It is submitted that the amended Section 54A and 69 of the Act is perfectly legal and valid and is not violative of Articles 14, 19, 20, 21 and 301 of the Constitution of India and that the Act is an independent self codified statute providing alternative remedy and merely forum for release of vehicle has been changed. The petitioner is not affected by the change of forum. The amended provisions have only given more teeth to the existing laws by fastening the burden to the owner of vehicle and giving power to the Excise Authorities with regard to release of vehicles involved in the criminal act of carrying smuggled/illegally excisable articles. It is submitted that the provisions were brought for preventing the smuggling and evasion of excise revenue.

4. Arguing further Shri Narendra Jain submitted that as per the provisions of Sections 451 to 457 Cr.P.C., the Criminal Court has jurisdiction to release any property seized or recovered during any inquiry or trial. However, the State Legislature has promulgated the Rajasthan Excise (Amendment) Ordinance, 2000, whereby Section 54A has been inserted and Section 69 of the Act has also been amended and as per amended Sub-section (6) of Section 69 of the Act, it has been provided that whenever any means of conveyance is seized in connection with commission of an offence under the 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 time being in force, any Court, Tribunal or other authority shall not have, jurisdiction to make order with regard to the possession delivery, disposal, release of such conveyance. In view of the aforesaid amended provisions, the Criminal Court is not invoking its jurisdiction and the power of the court is taken away. Mr. Jain would further submit that the provisions of the Rajasthan Excise (Amendment) Ordinance, 2000, particularly, Section 54-A and Section 69(6) are unconstitutional, arbitrary, unreasonable and violative of Articles 14, 19, 20, 21 and 301 of the Constitution. According to Shri Jain, every citizen has fundamental right to approach the Judicial Courts for his grievances but a bare perusal of Sub-section (6) of Section 69 will show that in the matter of seizure of a vehicle/conveyance, the jurisdiction of any Court, Tribunal or other authority have been excluded. The powers conferred on judicial courts by virtue of Sections 451 to 457 Cr.P.C. have been curtailed or have been taken away by this amendment and indirectly the power of revision of Sessions Judge or High Court and inherent powers of High Court under Section 482 Cr.P.C. have been curtailed. If a strict interpretation is taken, then powers of High Court under Article 226 of the Constitution in these matters have been taken. Therefore, he would submit that the provisions of the Amended Act are ultra vires of the provisions of the Constitution as well as ultra vires to the provisions of Sections 451, 452 and 457 of the Code of Criminal Procedure.

5. Shri Manish Bhandari submitted that as per the amended Section 54-A, the owner of the vehicle will be deemed to be guilty, if his vehicle is used in the commission of an offence and no exception has been provided to it. There is a presumption as per the amended provisions about guilt of the owner of the vehicle. The right to trade including the trade of transportation is a fundamental right of the citizen of India and in case he is carrying his trade and without his knowledge, if his driver or agent commits any offence under the Act by way of negligence or under any compulsion then still he will be held guilty and it will indirectly infringe his fundamental right regarding trade. Mr. Bhandari would further submit that a speedy trial is a fundamental right of a citizen and as per the amended provisions, the right to release the vehicle has been given to the Excise Commissioner who is only one in the entire State and, therefore, he cannot spare time for deciding such application after hearing the parties.

6. Explaining further, Shri Garg would submit that the amendments are absolutely unreasonable. It is submitted that there may be certain instances where vehicle is misused by other persons without the knowledge of the owner, but he is still liable to be prosecuted under the amended provisions. Similarly, the vehicle is seized and ultimately can be confiscated. Therefore, the said provision is against equity and the provisions of the Constitution.

7. Elaborating his submission, Shri R.S. Chauhan, submitted that the impugned provisions are unsustainable in law and while Criminal Procedure Code is a central piece of legislation, Rajasthan Excise Act is a State piece of legislation. Sections 451 and 457 of Cr.P.C. clearly deal with the disposal of property involved in a criminal trial. Similarly, Section 69(4) of the Rajasthan Excise Act also deals with the disposal of the property involved in a criminal offence, the State legislation empowers the officers of the Excise Department to wholly deal with the disposal of the said property. There is therefore, a repugnancy between the central legislation and the State legislation. Thus, he submitted that Section 69(4) of the Act is void in the light of Article 254 of the Constitution of India. Thus, both the sections are unconstitutional.

8. learned Counsel for the respective petitioners would submit that Section 69(6) totally ousts the jurisdiction which is vested in the Courts. All the counsel would further submit that most fundamental principle of common law is that every one is presumed to be innocent till proved guilty. Therefore, no law can presume a person to be guilty of an offence. It is a burden which the prosecution must discharge. Sections 113-A, 113-B and 114-A of the Evidence Act do create a presumption against accused, but none of these sections lay down that the person shall be deemed to be guilty of the offence. Thus, it is submitted that Section 54A of the Act is highly arbitrary, unreasonable law and is in violation of Articles 14 and 21 of the Constitution.

9. Shri Narendra Jain, learned Counsel, cited the following case laws for consideration in support of his argument that the amended provisions are unreasonable in nature.

10. Attabari Tea Co. Ltd. v. State of Assam, : [1961]1SCR809 ; Khyerbari Tea Co. Ltd. v. State of Assam: : [1964]5SCR975 ; State of Haryana and Ors. v. Sant Lal and Anr., AIR 1993 (4) SCC 380,

11. Shri Manish Bhandari, learned Counsel cited the following rulings in support of his contentions:

12. H.S. Srinivasa Raghavachar and Ors. v. State of Karnataka and Ors., : [1987]2SCR1189 ; O.N. Mohindroo v. Bar Council of Delhi and Ors., : [1968]2SCR709 ; M. Karunanidhi v. Union of India, : 1979CriLJ773 .

13. Mr. Garg cited the case of T. Barai v. Henry Ah. Hoe and Anr., 1983 SC 150 in support of his contentions.

14. Learned Advocate General, Mr. S.M. Mehta, assisted by S/Shri Mohd. Rafiq, Addl. Advocate General, S.P. Sharma, R.B. Mathur and L.M. Bharadwaj, made an elaborate and very impressive submissions with reference to the provisions of the Constitution of India, identical provisions in the Acts enacted by the State of Tamil Nadu, State of Karnataka, State of Andhra Pradesh and the Government of U.P., countering the submissions made by the learned Counsel for the petitioners. He also drew our attention to List-II, Entry-8 of the Seventh Schedule of the Constitution read with Entries-64 and 65. Our attention was also invited to the provisions of Section 5 Cr.P.C., Sections 4 and 9 C.P.C. and Section 41 I.P.C. The learned Advocate General relied on the following case laws in support of his various submissions:

15. Superintendent of Customs and Central Excise, Nagercoil v. R. Sunder, 1993 Cr.L.J. 956 and State of Karnataka v. K. Krishnan : 2000CriLJ3971 . To meet the arguments of the learned Counsel for the petitioners in regard the repugnancy between the State Act and the Central Act, Learned Advocate General placed strong reliance on, A.S. Krishna v. State of Madras, 1957 S.C. 297, Jilubhai Nanabhai Khachar v. State of Gujarat, 1995 (Suppl.) 1 SCC 596, Modern Syntax (I) Ltd v. Debts Recovery Tribunal, Jaipur, .

16. He also drew our attention to the provisions of Sections 6A, 6B and 6E of the Essential Commodities Act and cited the case of Shambhu Dayal Agarwala v. State of West Bengal and Anr., : [1990]2SCR987 .

17. In support of his contention that the jurisdiction of the Courts can impliedly or expressly be excluded. Mr. S.M. Mehta cited the following rulings:

18. Kanbi Manji Abji and Ors. v. Kanbi Vaghji Mavji and Ors., : AIR1993SC1163 , Shri Chandrika Singh and Ors. v. Raja Vishwanath Pratap Singh and Anr., : [1992]2SCR640 ; State of Bihar v. Dhirndra Kumar and Ors., : [1995]3SCR857 ; Sita Ram v. Chhota Bhandey and Ors., : AIR1991SC249 ; Jitendra Nath Biswas v. Empire of India & Ceylone Tea Co. and Anr., : (1989)IILLJ572SC ; Munshi Ram and Ors. v. Municipal Committee, Chheharta, : [1979]118ITR488(SC) ; Ram Singh and Ors. v. Gram Panchayat Mehal Kalan and Ors. : [1986]3SCR831 ; Naresh J. Sukhawani v. Union of India, : 1996(83)ELT258(SC) ; Bata Shoe Co. Ltd. v. Jabalpur Corporation, : [1977]3SCR182 and Collector of Customs v. Sampathu Chetty, : 1983ECR2198D(SC) , which is a case to deal with the burden of proof.

19. Before proceeding further to deal with the rival submissions made by the respective parties, it will be relevant to reproduce here the Objects and Reasons of the Rajasthan Excise Amendment Act, 2000.

Statement of Objects and Reasons:

The incidence of unauthorised 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 got released from courts and were again used for unauthorised transportation of excisable 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 authorised by the State Government in this behalf and the owner of such a means of conveyance shall be deemed to be guilty of offence for the commission of which, the said means of conveyance was used. For achieving these purposes, Section 69 of the Rajasthan Excise Act was proposed to be suitably amended and a new Section 54-A was proposed to be inserted.

20. Before proceeding further, it is useful to extract the amended provisions of Section 54, which read as follows:

54. Penalty for unlawful import, export, transport, manufacture, possession etc.

21. Whoever in contravention of this Act or of any rule or order made or of any licence, permit or pass granted, thereunder:

(a) imports, exports, transports, manufactures, collects, sells or possesses any excisable article, or,

(b) cultivates any hemp plant (Cannabis Sativa); or

(d) uses, keeps or has in his possession any materials, stills, utensils, implements, or apparatus whatsoever for the purpose of manufacturing any excisable article other than Tari; or

(e) removes any excisable article for any distillery, pot-still, (brewery) or warehouse established or licensed under this Act, or

(f) bottles any liquor for the purposes of sale; or

(g) taps or draws Tari from any Tari producing tree; shall be punishable with imprisonment for a term which may extend to (three years) (and) with fine which may extend to two thousand rupees. (xxx):

(Provided that if a person is so found in possession of a workable still for the manufacture of any excisableicle (or is found to be guilty of selling or possessing for sale any excisable article in contravention of the provisions of this Act or of any rule or order made or of any licence permit or pass granted thereunder) he shall be punished with the minimum sentence of imprisonment for six months and fine of two hundred rupees.)'51-A. Owner of animal, cart, vessel, raft, motor vehicle or any other means of conveyance deemed to be guilty in certain cases. Where any animal, cart, vessel, raft, motor vehicle or any other means of conveyance is used in the commission of an offence under this Act, and is liable to confiscation the owner thereof, except in case of a motor vehicle or other means of conveyance being owned by the Central Government or any State Government or any of the undertakings, shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded and be punished accordingly unless he satisfies the court that he had no reason to believe that such offence was being or likely to be committed and he had exercised due care in the prevention of the commission of such an offence.

69. What things are liable to confiscation--(1) Whenever an offence punishable under this Act has been committed--

(a) every excisable article in respect of which such offence has been committed;

(b) every still, utensil, implement or apparatus and all materials by means of which such offence has been committed.

(c) every 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 Clauses (a) to (d) of Sub-section (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 circumstances which afford reason to believe that an offence under this Act has been committed in respect or by means thereof, or when such an offence has been committed and the offender is not known or cannot be found, the Excise Commissioner may order confiscation of the same:

Provided that no such order shall be made until the expiration of one month from the date of seizing the thing or animal in question or without hearing the person (if any) claiming any right thereto, and the evidence (if any) which he produces in support of the claim:

Provided further that if the thing in question is liable to speedy and natural decay, of if the Excise Commissioner is of opinion that the sale of the thing or animal in question would be for the benefit of its owner, he may at any time direct it to be sold; and the provisions of this section shall so far as may be, apply to the net proceeds of such sale.

(4) Where any means of conveyance referred to in Clause (e) of Sub-section (1) is seized in connection with the commission of any offence under this Act, a report of such seizure shall, without unreasonable delay, be made by the person seizing it to the Excise Commissioner or to the officer, not below the rank of the District Excise Officer, as may be duly authorised by the State Government in this behalf and whether or not a prosecution is instituted for commission of such an offence, the Excise Commissioner or the officer authorised in this behalf by the State Government, having jurisdiction over the area where the said means of conveyance was seized, may, if satisfied that the said means of conveyance was used for commission of offence under this Act, order confiscation of the said means of conveyance:

Provided that before ordering confiscation of the said means of conveyance a reasonable opportunity of being heard shall be afforded to the owner of the said means of conveyance and if such owner satisfies the Excise Commissioner or the officer authorised by the State Government in this behalf that he had no reason to believe that such offence was being or likely to be committed and he had exercised due care in the prevention of the commission of such an offence, the Excise Government or the officer authorised by the State Government in this behalf, may not confiscate the said means of conveyance:

Provided further that where such means of conveyance is owned by 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) Sub-section (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-section (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 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 time being in force any Court, Tribunal or other authority shall not have jurisdiction to make order with regard to the possession, delivery, disposal, release of such means of conveyance.

(7) Where the Excise Commissioner or the officer authorised by the State Government in this behalf is of the opinion that it is expedient in public interest or for the benefit of its owner that the means of conveyance as referred to in Clause (e) of Sub-section (1), seized for commission of offence under this Act be sold by public auction, he may at any time direct it to be sold.

(8) Where any means a conveyance is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of such sale or auction or other incidental expenses relating thereto and in other cases, the means of conveyance which was seized or the amount of fine paid in lieu of its confiscation, shall--

(a) where no order of confiscation is ultimately passed by the Excise Commissioner or the officer authorised by the State Government in this behalf or,

(b) where an order passed on appeal under Sub-section (5) so requires; or

(c) where in a prosecution instituted for commission of offence under this Act in respect of which an order of confiscation has been made under this section, the person concerned is acquitted,

be paid, returned or refunded, as the case may be, to its owner:

Provided that no interest shall be payable on the amount to be paid or refunded under this Sub-section.

(9) any order of confiscation made by the Excise Commissioner or any officer authorised by the State Government in this behalf, shall not prevent the infliction of any punishment to which the person affected there by is liable under this Act.

23. It is also essential to reproduce Section 9-B of the Act, which was introduced in the Gazette Notification dated 31.7.1998, which reads as under:

Bar of jurisdiction of civil courts:

No Civil Court shall have jurisdiction to entertain any suit or proceeding to set aside or modify:

(a) any original order passed by any of the officer competent to do so under the provisions of this Act;

(b) any order passed under or referred to in Section 9A.

24. It is also argued that the amendments are contrary to Article 254 of the Constitution of India and without the assent of the President, the same cannot be followed, as such, the same is ultra vires of the Constitution. Article 254 of the Constitution, for that purpose, is reproduced hereunder:

Article 254. (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 President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

So far as the Amendment Act, 2000, which received the assent of the Governor on 3.4.2000, whereby Section 54-A was inserted and amendments were made in Section 69 of the existing provisions and Sub-sections. (4) to (9) were inserted and also the earlier amendment made in Section 9-B whereby the jurisdiction of the civil court was barred in respect of proceedings to set aside or modify any order passed under, or referred to, Section 9-A of the Act, are concerned, they are in our opinion perfectly valid and within the competence of the State Legislature for the reasons stated infra.

25. learned Counsel for the petitioners raised arguments with regard to the invalidity of the Act alleging to be in contravention with the provisions of the Code of Criminal Procedure and Civil Procedure Code with respect to the confiscation of the vehicle. In our opinion, the aforesaid submission is without any basis. The scheme of the Act and the Amendment Act is consistent to regulate production, manufacture, possession, transport, purchase or sale of the intoxicating liquor. The amendment was introduced because of the incidence of unauthorised transportation of excisable articles having 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 got released from courts and were again used for unauthorised transportation of excisable 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 authorised by the State Government in this behalf and the owner of such a means of conveyance shall be deemed to be guilty of offence for the commission of which the said means of conveyance was used. For achieving these purposes, Section 69 of the Rajasthan Excise Act was proposed to be suitably amended and a new Section 54-A was proposed to be inserted.

26. Though incidentally, the impugned amendments trenches upon some of the provisions of the Evidence Act, the Indian Penal Code, the Code of Criminal Procedure and the Code of Civil Procedure, in pith and substance, it is within the integral scheme of the Act, which, in our opinion, falls within Entry-8, read with Entries 64 & 65 of List-II of the Seventh Schedule to the Constitution, and under Article 246(3), State Legislature was competent to enact the Amendment Act.

27. Article 246 of the Constitution, deals with the subject-matter of laws, made by Parliament and by the State Legislatures of the States. This Article deals with distribution of legislative powers as between the Union and State Legislatures, with reference to the different lists in the Seventh Schedule. The list of the Article, in short is that Union Parliament has full and exclusive power to legislate with respect to matters in List-I and has also power to legislate with respect to matters in List-I and also power to legislate with respect to matter in List-III. The State Legislature, on the other hand, has exclusive power to legislate with respect to matters in List-II, minus falling in Lists I and III and has concurrent power in respect to matters, included in List-III. Where a statutory enactment is made, by a competent legislature and such law does not contravene any provision of the Constitution, it cannot be struck down on the mere ground that it is vague or its provisions are mutually inconsistent. In such a case, the Court has to interpret it, on the application of relevant canons of interpretation. It is in view of this expression that the doctrine of pith and substance has been applied in the interpretation of legislative powers of the Legislatures, under the Constitution. Once it is held that it does, the legislative power conferred by that Entry, will extend to all ancillary matters, which may fairly and reasonably be said to be comprehended in that topic of legislation. Since the Legislature was competent under Article 246(3), to enact the Amendment Act, the assent of the President, is not necessary. The proposition of law is firmly established by the decisions of the Supreme Court, in cases, A.S. Krishna and Ors. v. State of Madras, reported : 1957CriLJ409 ; P.N. Krishna Lal v. Govt. of Kerala, reported in 1995 Suppl. (2) SCC 187; and Modern Syntax (I) Ltd v. Debts Recovery Tribunal, Jaipur and Ors., reported in AIR 2001 Raj. 170.

In case, A.S. Krishna & others (supra), it has been held by the Apex Court, as under:It is of the essence of a Federal Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces. The Scheme of distribution has varied with different Constitutions, but even when the Constitution enumerates elaborately the topics on which the Centre and the States could legislate, some overlapping of the fields of legislation is inevitable. For this reason, the constitutionality of the laws made by the Centre and the State come up for decision time and again and therefore to decide whether an impugned legislation is intra vires the doctrine, that regard must be had to its pith and substance, was evolved. That is to say, if a statute is found in substance to relate to a topic within the competence of the Legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence. The extent of the encorachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether the guise of making a law on a matter within its competence, the Legislature is, in truth, making a law on a subject beyond its competence. But where that is not the position, then, the fact of encroachment does not affect the vires of the law even as regards the area of encroachment.

29. In case of P.N. Krishna Lal and others (supra), the Supreme Court was considering the validity of insertion of Sections 57-A and 57-B by Kerala Abkari (Amendment) Act, 1984 and the legislative competence of the State and the Supreme Court held that the provisions, covered by Entry-8, read with Entries 64 and 65 of List-II of Schedule-VII to the Constitution being in pith and substance within the legislative competence of the State Legislature, their incidental trenching upon the field of Central legislations, viz., Cr.P.C., IPC and Evidence Act would be inconsequential. In the Kerala Act, the President had accorded assent to the Amendment Act, on 01.12.1984 and, therefore, specific assent with reference to the provisions of Cr.P.C., IPC and Evidence Act, was not necessary. Considering the argument of legislative competence, the Supreme Court held that the presumption is in favour of constitutionality of the provision and that power to legislate on a subject includes power to legislate on ancillary or incidental subjects. The Supreme Court has reiterated the pith and substance rule in this case and has held that if a legislation is in pith and substance within the competence of State Legislature, its incidental encroachment in the field of Central legislation would not render the enactment void. The Supreme Court also held that if the President gave assent in general terms, it will be effective for all purposes and specific assent in respect of each case of inconsistency with the Central Legislation, is not necessary.

30. In case of Modern Syntax (I) Ltd. (supra), a Division Bench of this Court, comprising myself (Dr. AR. Lakshmanan), C.J. and Mohd. Yamin, J., was considering a case of recovery of debts to Banks and Financial Institutions Act, 1993 and Rajasthan Relief Undertakings Act. In this case, declaration of relief undertaking was issued by the State under the State Act. The Couert held that the State was competent to suspend legal proceedings, including those instituted under Recovery of Debts due to Banks etc. Act, 1993 and that there is no repugnancy in the two Acts. In that case, it was held as under:

The repugnancy referred to under Article 254 of the Constitution, is of a specific kind, i.e., a repugnancy between the Union and State Law must have reference only to the Concurrent Lists. As observed in the case of Teekaramji : [1956]1SCR393 by the Supreme Court there can be no question of repugnancy under Article 254 of the Constitution of India, where the Parliament and the State Legislatures occupy different fields or deal with different matters and where there is no direct inconsistency in actual terms of such Acts.

31. In the above case of Modern Syntax (I) Ltd., it was further held as under:

So far as the provisions of Recovery of Debts to Banks and Financial Institutions Act, 1993 and Rajasthan Relief Undertakings Act are concerned, both the legislations are valid laws made by different legislatures exercising power under different lists. The RDB Act and RRU Act deal with different subjects. The fields occupied by the two statutes in their pith and substance are separate and there is no direct inconsistency between RDB Act and RRU Act. The Central legislation occupies the field of Banking under List-I and provides for the incidental issue of adjudication of banking disputes, while the State Legislation occupies the field of social security and providing unemployment relief falling under the Concurrent List. Between two validly passed enactments pertaining to the same list, conflict is permissible, if there is no direct inconsistency between the two. Then, a duty casts on the Courts to harmoniously construe the two provisions. Thus, the principle of harmonious interpretation has been evolved. Further since List-I and List-II relate to exclusive domain of the Centre and the State respectively, no inconsistency between the two can arise. Repugnancy can arise only in respect of laws and Concurrent List, List-III. Thus, once a relief undertaking notification is issued, the State is competent to suspend legal proceedings of all kinds, including the proceedings, instituted under the Central Legislation such as recovery of debts under Central Act.

32. The law is well-settled that power to legislate on a particular topic includes the power to legislate on subjects, which are ancillary or incidental thereto or necessary for the purposes of giving full effect to the power, conferred by the entry in the Constitution. For interpretation of validity of impugned provision with respect to a given power, the pith and substance of the provision is required to be considered. If the statute relates in pith and substance to a topic assigned to a particular legislature, the provision would not be invalidated even if it incidentally trenches on topics coming within another legislative list. Incidental encroachment does not affect the vires of the law even in regard to the area of encroachment. The provisions inserted by Amendment Act are precisely within the integral scheme of the Excise Act and are intended to achieve more effectively the purpose of the principle Act. The argument, advanced by the learned Counsel for the petitioners, in our view, is fundamentally baseless, as is apparent from the law, declared and explained by the Supreme Court, in the judgments, referred to above.

33. The decision of the Supreme Court, in P.N. Krishanlal's case (supra), is a direct and complete answer to all the submission of the petitioner. The Supreme Court has held, after applying pith and substance rule that incidental trenching upon some of the provisions of the Central Act, still remaining within the integral scheme of the Principal Act, the State Legislature was competent to enact such amendment to enact such amendment, and therefore, the assent of the President was not necessary. In this context, we may usefully, extract and reproduce para-12 of the above judgment:

The scheme of the Act and the Amendment Act, is a consistent whole, regulating production, manufacture, possession, transport, purchase or sale of intoxicating liquors. The amendment 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 mixing methanol in arrack or intoxicating drug or to be in possession thereof with knowledge 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 Code, in its pith and substance, it is an integral scheme of the Act, which falls within Entry-8, read with Entries 64 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 necessary. Even assuming that some of the provisions incidentally trespass into the field of operation of the Central provisions falling in the Concurrent List, which empower both Parliament 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 Act has been placed before us, which shows that the President has given his assent 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.

It was argued by the learned Counsel for the petitioners that the impugned amendment trenches upon some of the provisions of Evidence Act, IPC and Cr.P.C. etc. We shall now advert to the certain provisions of Cr.P.C.

34. Section 5, Cr.P.C. deals with 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.

35. The above section enacts that nothing contained in the Code shall, in the absence of a special 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. The anatomy of this section is simple, yet subtle. Broadly speaking, there are three components to be separated. Firstly, the Code generally governs matters covered by it. Secondly, if a special or local law exists, covering the same area, this later law will be saved and will prevail. The short-sentencing measures and remission schemes promulgated by the various States are special and local laws and must override. Now comes the third component, which may be clinching. If there is a specific provision to the contrary in the Cr.P.C., then it will override the special or local law. Reading Sections 4 and 5 together, the conclusion is irresistible that if there exists any special law or if any special jurisdiction or power is conferred upon the court or if any form of procedure is prescribed in the special law, then, the provisions of the special law would override the provisions of the general law of procedure. This section, in our view, vehemently provides that nothing contained in the Cr.P.C., in the absence of specific provision to the contrary, affect any special or local law for the time being in force.

36. Section 4 of the Code of Civil Procedure, reads as follows:

Section 4 Savings,--(1) In the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect 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-section (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 from the produce of such land.

37. 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.

38. Section 9 of the Code of Civil Procedure deals with courts to try all civil suits unless barred. The said section is reproduced hereunder:

Section 9. Courts to try all civil suits unless barred,--The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I--A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II--For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation-I or whether or not such office is attached to a particular place.

39. Section 9 gives jurisdiction to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law. The jurisdiction of the civil court is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law. This is the purpose of Section 9. As a corollary, it follows that a court cannot entertain a suit which is not of a civil nature. If a court has no jurisdiction to try the case, it goes to the very root of jurisdiction and it is a case of inherent lack of jurisdiction. Consent or failure to object cannot give jurisdiction where there is inherent want of jurisdiction.

40. Section 41 of the Indian Penal Code deals with special law. The special law is defined as a law applicable to a particular subject. In other words, the word 'special law' refer to a law which is not applicable generally but which only applies to a particular or specified subject or class of subjects. The Rajasthan Municipalities Act (1959) is a special law, as well as local law within the definition of Sections 41 and 42, Penal Code and as such the application of Section 64, IPC, cannot ordinarily be ruled out to the offences under the Rajasthan Municipalities Act, but in view of the special provision in Section 265(2) of the Act which provides a special mode for the recovery of fine imposed under the Act Section 64, IPC, which deals with the power of the Criminal Court, for awarding sentence of imprisonment in lieu of the fine, cannot apply to the cases where fine is imposed under the Rajasthan Municipalities Act (1959).

41. Section 42 of the Indian Penal Code deals with local law as a law, applicable only to a particular part of India. As already noticed, the Rajasthan Municipalities Act (1959) is a special law as well as a local law, within the definitions of Sections 41 and 42 of the Penal Code.

42. Section 451 of the Code of Criminal Procedure deals with order 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,--When any property is produced before any Criminal Court 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.

43. 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 question of title or ownership of the rival claimants to the property. Only the question of possession of the property at the time the case started, has to be gone into and decided before passing an order for the custody under this section. Section 452 deals with order for disposal of property at conclusion of trial. Section 457 deals with procedure by police, upon 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 property is not produced 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 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 specifying the articles of which such property consists 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.

44. This section is general in its application and applies to all cases of seizures of property by any police officer and such seizure is reported to a Magistrate under the provisions of the Code but not produced before him and provides for the procedure to be followed by the Magistrate for the disposal of property.

45. In case, Vinayak Gururao Inamdar and Ors. v. Bhaskar Vasudeo Shirsat and Ors., reported in 1993 Cri. L.J. 3594, a Division Bench of the Bombay High Court, held that a Magistrate cannot in exercise of jurisdiction under Section of Cr.P.C., release property seized by the Customs Officers, under the Customs Act and also that Section 451, Cr.P.C. would also not apply since the property was not produced before Court, during any 'inquiry or trial' as envisaged under that provision. An order directing delivery of property by a Magistrate, when no criminal proceeding is pending before him, is plainly illegal. The Division Bench, in para-5 of the judgment, held thus:

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 these special provisions are independent of the provisions of Cr.P.C. and protected by Section 5, Cr.P.C. Cumulative effect of Sections 124, 125 and 110(2) of the Customs Act is that 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.

46. In case of The Superintendent of Customs and Central Excise, Nagercoil v. R.Sundar, reported in 1993 Cri. L.J. 956, a learned Single Judge of Madras High Court was dealing with a case under the Customs Act, which is a special law within the meaning of Section 41 of the Customs Act, 1962. The learned Judge in that case held as under:

In all cases where alleged contraband articles were seized by the personnel belonging top the Customs and Central Excise Departments under the provisions of the Customs Act, 1962, the disposal of the properties so seized is permissible only under the machinery provided therein and not otherwise and the Criminal Court therefore has no jurisdiction or requisite power either to order for interim custody of such seized articles pending inquiry or trial or for the return of the same after the conclusion of the trial to the person, from whom they were seized, and even in the extreme case of adjudication, penalty and confiscation proceedings, not having been completed by the time and prosecution launched coming to a successful termination, the Criminal Court is left with no other alternative except to pass an order for disposal of such seized goods only in accordance with the provisions of the Customs Act, 1962, i.e., the machinery provided therein would take the necessary course to pass an order as respects the disposal of the seized goods in accordance with the provisions contained therein.

47. The Supreme Court, in case State of Karnataka v. K. Krishnan, reported in : 2000CriLJ3971 , was considering a case of a forest offence, under the Karnataka Forest Act, 1963. In this case, the Supreme Court has 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 forest offence should not be released and that even if court is inclined to release the same, the authorised officer must specify reasons therefor and must insist on furnishing of bank guarantee as the minimum condition. In the said case, the forest produce was transported in violation of provisions of the Act. The vehicle used 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 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 getting interim custody of the vehicle. The Supreme Court held that the High Court had adopted a casual approach and its order was contrary to law and the casual approach in respect of offences relating to forests, was deprecated.

48. We shall now consider certain provisions of the Essential Commodities Act, 1955. In this context. Section-6A deals with confiscation of food-grains, edible oil-seeds and edible oils. Section 6-B deals with issue of show cause notice before confiscation of food-grains, etc. Section 6-E deals with bar of jurisdiction in certain cases. Section 6-E has been substituted to provide that except Collector or State Government, all other authorities, judicial or otherwise, would be debarred from making any order with regard to the possession, delivery, 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 necessary provision for confiscation of essential commodities seized in pursuance of an order made under Section 3 in relation thereto the Collector of the District of the Presidency-Town, in which such commodity is seized, may order confiscation, if he is satisfied that there has been a contravention of such an order. But, no order of confiscation shall be made under this Section, if the seized essential 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-B of the Act provides the procedure to be adopted by the Collector, before passing order for confiscation, which enacts that after issuing of notice, an opportunity has to be given to the aggrieved party, for contesting the same. The Collector, after giving him a hearing, has to decide the objection and pass an order either confiscating the property or refusing to confiscate the property.

49. In case Shambhu Dayal Agarwala v. State of West Bengal and Anr., reported in : [1990]2SCR987 , the Supreme Court held that whenever 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 Supreme Court held that the word 'release' in Section 6-E, is used in the limited sense of release for sale etc., so that the same becomes available 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 in the 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 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 Section 6-A(2) is granted. The power conferred by Section 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.

50. The next point, urged by Mr. Narendra Jain, Mr. Manish Bhandari, Mr. R.P. Garg and Mr. R.S. Chauhan, was that the amended provisions of Section 69, are contrary to the principles of natural justice, inasmuch as, the competent authority, which passes the order of confiscation and or appellate authority, are the departmental authorities and, therefore, the provisions are arbitrary. We do not agree. The provisions, in our view, are perfectly valid, inasmuch as, under the amended provisions of Section 69(4), confiscation order is to be passed by the Excise Commissioner or the Officer, authorised in this behalf, by the State Government, having jurisdiction over the area, where the said means of conveyance was used, for commission of offence, under this Act. It further provides that order of confiscation is to be passed, if the concerned authority is satisfied that the said means of conveyance was used for commission of offence under this Act. The aforesaid order is to be passed, after affording a reasonable opportunity of being heard, to the owner of the said means of conveyance. It is further provided that before ordering the confiscation, the owner of the means of conveyance, referred to in Clause (e) of Sub-section (1), may be given option to pay in lieu of confiscation, a fine not exceeding the market-price of such means of conveyance. Further under Sub-section (5) of Section 69, it is provided that any person, aggrieved by an order of confiscation, will have a right of appeal to the Divisional Commissioner and the Divisional Commissioner, after giving an opportunity to the appellant, to be heard, shall pass such order, as it may think fit, confirming, modifying or annulling the order, appealed against, and under Sub-section (6) of Section 69, the jurisdiction of the Court, Tribunal or authority has been excluded with regard to the possession, delivery, disposal, release of such means of conveyance. Sub-section (9) of Section 69 provides that any order of confiscation made by the Excise Commissioner or any officer, authorised by the State Government in this behalf, shall not prevent infliction of any punishment, to which, the person affected thereby, is liable under this Act. Sub-section (8) provides for dealing with the vehicle and proceeds of sale, if any, or amount of fine, if any, in cases where no order of confiscation is ultimately passed, or the consequences of an appellate order, or in case of acquittal in prosecution.

51. Thus, the power of confiscation vests in the Excise Authorities, and so far as the prosecution for the offence is concerned, the same is to be tried in regular court. Thus, there is no doubt that power of confiscation vests exclusively with the domain of the Excise Commissioner, or any person, duly authorised by the State Government, in this behalf. In view of the principles of law, enunciated in the decisions of the Apex Court, in the case of State of Karnataka v. K. Krishnan : 2000CriLJ3971 , the vehicle, used in the transportation of liquor, in contravention of the provisions of the Act, should not generally be released, except in exceptional cases, and that too, for reasons, to be recorded. The Apex Court has held than if any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party, till the culmination of all proceedings in respect of such offence, including confiscatory proceedings, if any. The amended provisions, in our considered view, thus, cannot be called arbitrary, or in violation of any constitutional provision or principles of natural justice. On the contrary, these provisions are intended to achieve the objects, for which, the Excise Act was enacted.

52. It was argued by the learned Counsel for the petitioners that the jurisdiction of the civil courts has wrongly been excluded under Section 9-B of the Act. In our opinion, the jurisdiction of the civil courts, has rightly been excluded under Section 9-B of the Act, and the same is in consonance with the provisions of Section 9 of the Code of Civil Procedure, to which, we have already referred in the preceding paragraphs. Likewise, the jurisdiction of the criminal courts, with regard to confiscation of vehicle, used for the commission of any offence under the Act, has validly been excluded. We have already extracted in this context, Section 5 of the Code of Criminal Procedure, in the paragraph above. The exclusion of jurisdiction in Special Acts, is a usual procedure, and the same has been upheld by the Apex Court, in numerous decisions. The exclusion of the jurisdiction may be express or implied. In the present case, the exclusion of the jurisdiction of the civil courts and that of criminal courts, so far as it relates to confiscation of the vehicle, used for commission of any offence, is explicit.

53. It was argued by the learned Counsel for the petitioners that there is also discrimination between Government vehicle and private vehicle and that the amended Act confers unguided powers upon the Excise Authorities, to seize a vehicle, whether there is one bottle or one pouch in it and for that, same offence is punishable. It is submitted that Section 54-A is further discriminatory, because, from the perusal of it, it becomes clear that presumption is against offence and not against vehicle, and once the presumption is against the offence, then, for the same offence, two classes of vehicle, namely, private and Government, cannot be discriminated. Hence, Section 54-A is invalid and violative of Article 14 of the Constitution. There is no procedure provided for rebuttal; there is no opportunity for leading evidence; there is no opportunity to file reply; and there is no opportunity of being heard, as such, it is violative of settled principles of the Evidence Act. By virtue of amended provisions, punishment of fine was imposed, prior to the trial was completed, and as such, it is violative of Article-21 of the Constitution and it takes away a right. We are unable to countenance the said submission. The amendments made are perfectly valid and they cannot be said to be arbitrary, or against the provisions of the Constitution. The exclusion of jurisdiction is contained in a number of Acts, passed by other States, and the same has been done in the Rajasthan Excise Act. The amended provision cannot be said to be violative of principles of natural justice. The seizure of vehicle in a particular case, is ordered, after hearing the petitioner, on his application, for release of the vehicle. It is to be noticed that under Section 9-A of the Act, appeal against an order of District Excise Officer is provided before the Excise Commissioner and the appellate authority is a quasi-judicial authority, and as such, this contention is wrong. The incorporation of Sections 9-A and 9-B, in no way, can be said to be ultra vires. The incorporation, in our opinion, has been brought to achieve the object, and its rationale with the object, sought to be achieved. Further, as already noticed, appeal is provided against an order under Section 9-A, and hence, Sections 9-A and 9-B can, in no way, be said to be ultra vires. It is pertinent to notice that the amendment made in the Act, has been made with the simple intention to check sumuggling liquor and to give more teeth to the existing law. The confiscation power, conferred on the Excise Commissioner, is in no way, in violation of the provisions of the Constitution. Under the amended provisions, Excise Commissioner, prior to confiscation, would provide due opportunity of hearing to the owner of the vehicle, and then, pass the order. Further, an appeal is also provided against the order of Excise Commissioner. A bare perusal of the different States' excise laws, shows that the Rajasthan is not the only State, where such provisions exist and they are in existence in other States also. It is also to be noticed that the amended provisions are legal, valid and in accordance with the provisions, conferred by the Constitution, under its List-II of the Seventh Schedule. It is also relevant to mention here that a similar provision does exist in other laws, like, Rajasthan Sales Tax Act; Essential Commodities Act; Arms Act; and Indian Forests Act.

54. We shall not deal with the cases cited by the learned Advocate General in regard to the jurisdiction of the civil court impliedely or expressly excluded. In Kabi Manji Abji and Ors. v. Kanbi Vaghji Mavji and Ors. : AIR1993SC1163 , the Supreme Court held as under:

Claiming a right to have the idols and portraits in the dormitory hall and also the right to read the books propounded by the followers of a Sect is in pith and substance asking for alterations in the scheme of the trust already settled. In any case, questioning right of trustees to decide the place where devotees would recite the scriptures and also the place where the idols and portraits are to be installed would be indirectly trying to interfere with the management of the temple. Thus where the main purpose of filing the suit was to establish the superiority of their sect and impose their way of thinking and worship in the management of the temple and as a consequence in the administration of the trust. The suit falls within the purview of Section 50 of the Act, and as such is not maintainable.

55. Shri Chandrika Singh and Ors. v. Raja Vishwanath Pratap Singh and Anr. : [1992]2SCR640 is the another case which has been cited by the learned Advocate General. The Supreme Court in this case has held that the question as to whether the suit land is or is not used for purposes connected with agriculture, horticulture or animal husbandry cannot be determined by civil courts and it is to be determined under provisions of Sections 143, 144 and 331-A of the U.P. Zamindari Abolition and Land Reforms Act.

56. State of Bihar v. Dhirendra Kumar and Ors. : [1995]3SCR857 : In this case, the Supreme Court has held that the Civil Court has no jurisdiction to go into the validity of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act and that the High Court only can do that in proceeding under Article 226 of the Constitution.

57. In Sita Ram v. Chota Bhondey and Ors. : AIR1991SC249 , the Supreme Court held that the jurisdiction of civil court is barred in the case of land lying in area covered by notification under Section 4(2) and the civil court has no jurisdiction to adjudicate the question as to title in respect of the said land. In Jitendra Nath Biswas v. Empire of India and Ceylone Tea Co. and Anr., the Supreme Court held that the relief of reinstatement and back wages cannot be granted by the civil court and that the said remedy is available only under the Industrial Disputes Act and that the provisions of the Industrial Disputes Act impliedly excludes jurisdiction of the civil court as regards such relief.

58. Munshi Ram and Ors. v. Municipal Committee, Chheharta : [1979]118ITR488(SC) : In this case, the matter relates to levy of profession tax. A partnership firm or six persons collectively carrying on business within municipality. In order to be authorised a tax under Clause (b) of Section 61(1) of the Punjab Municipal Act, must satisfy two conditions; First, it must be a tax on 'persons'. Second, such persons must be practicing any profession or art or carrying on any trade or calling in the municipality. The Supreme Court held that where special remedy is provided general remedy of suit is barred and the suit by partners of firm challenging validity of assessment of profession tax on individual partners, special remedy under Section 86 excludes jurisdiction of civil court.

59. Ram Singh and Ors. v. Gram Panchayat, Mehal Kalan and Ors. : [1986]3SCR831 . This is a case of suit against a Gram Panchayat for declaration of title to certain land and for injunction. Suit was filed questioning the entries made in revenue records showing suit land as belonging to Panchayat. Panchayat claimed that the suit land belonged to it. The Supreme Court held that the question has to be decided by Collector only under Section 11 of the Punjab Village Common Lands (Regulation) Act and that the jurisdiction of Civil Court, expressly taken away by Section 13 of the Act.

60. Laxmi Chand and Ors. v. Gram Panchayat Kararia and others : AIR1996SC523 . In this case again, the Supreme Court has held that in the cases arising out of the Land Acquisition Act, jurisdiction of the civil court to take cognizance thereof is barred.

61. Bata Shoe Co. Ltd. v. Jabalpur Corporation : [1977]3SCR182 . In this case, suit challenging valuation, assessment or levy of octroi is ousted by necessary implication of Section 84(3) and the suits are impliedly barred under the C.P. & Berar Municipalities Act (2 of 1922) Section 84(3).

62. It was argued by the learned Counsel for the petitioners that the amended Section 54A and Sub-sections of Section 69 are illegal, unconstitutional and violative of Articles 14, 19, 20, 21 and 301 of the Constitution of India. The object of the freedom declared by this Article is to ensure that the economic unity of India may not be broken up by internal barriers. The freedom is subject to the restrictions imposed by the State in the collective interests. The Courts have held that freedom does not mean absolute freedom but freedom for all restrictions except those which are provided in other articles. There is a violation of the freedom guaranteed by Article 301 only where a legislative or executive act operates to restrict trade, commerce or intercourse, directly and immediately, as distinct from creating some indirect or inconsequential impediment which may be regarded as remote. In our view the amendments introduced are regulatory in nature and cannot be regarded as violative of freedom. The Supreme Court in the case of Jilubhai Nanbhai Khachar and Ors. v. State of Gujarat and Anr. 1995 Supp.(1) SCC 596 after explaining the principle of eminent domain held that Article 300-A is not attracted when deprivation is in exercise of police power and that the said article enjoins that such deprivation should not be without sanction of law.

63. One of the petitioners' counsel raised an argument that an appeal could only be preferred on payment of 75% amount created by the order appealed against. In our view, the aforesaid submission is without substance or merit in as much as the High Courts and the Supreme Court in many cases have held that such a condition is not arbitrary or unreasonable.

64. The amended Sections 54-A and 69 of the Act in our opinion are perfectly legal and valid and are not violative of Articles 14, 19, 20, 21 and 301 of the Constitution of India. The Rajasthan Excise Act, 1950 is an independent self-codified statute providing alternative remedy. Merely the forum for release of vehicle has been changed, the petitioners are not at all affected by the change of forum. Fastening of burden upon the owner of the vehicle does not mean that he has automatically become guilty. The owner can discharge the burden by putting forth the excuse or may show cause that he was not involved in smuggling or the offence has been committed without his knowledge or involvement. The amended provision in our view, have not taken away or hampered or infringed the fundamental right of trade of the citizens. The owner of the vehicle should always be cautious and diligent to see that his vehicle is not misused or not engaged in any smuggling or illegal activity.

65. Our attention was drawn to the similar provisions in the Excise Acts of the other States. Similar provisions are in Tamilnadu Excise Act, Karnataka Excise Act, U.P. Excise Act and Andhra Pradesh Excise Act. The similar provisions of the aforesaid Acts are reproduced hereunder:

'Tamilnadu Excise Act: 4(1) Whoever:

(a) imports, exports, transports or possesses liquor or any intoxicating drug; or

(aa) imports, exports, transports or possesses liquor exceeding fifty litres but less than one hundred litres; or

(aaa) imports, exports, transports or possesses liquor of one hundred litres and above; or

(b)....

(C)....

(d)....

(2) it shall be presumed until the contrary is shown

(a) that a person accused of any offence under Clauses (a) to (jj) of Sub-section (1) has committed such offence in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug or any materials which have undergone any process towards the manufacture of liquor or any intoxicating drug or from which any liquor or intoxicating drug has been manufactured, for the possession of which he is unable to account satisfactorily.

(b)..........

14A. Where any animal, vessel, cart or other vehicle is used in the commision of any offence under this Act, and is liable to be confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly unless he satisfied the court that he had exercised due care in the prevention of the commission of such an offence.'

Karnataka Excise Act, 1965: 43A. Confiscation by Excise Officers in certain cases:(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any thing liable for confiscation under Section 43 is seized or detained under the provisions of this Act, the officer seizing and detaining such poroperty shall, without any reasonable delay, produce the same before an officer not below the rank of a Superintendent of Excise authorised by the Government in this behalf by notification (hereinafter referred to as the authorised officer)

(2) On production of the seized property under Sub-section (1), the authorised officer, if satisfied that an offence under this Act has been committed may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property.

(3) When making an order..............be destroyed.

43B. Issue of show cause notice before confiscation under Section 43A.(1) No order confiscating any property shall be made under Section 43-A unless the person from whom the same is seized:

(a) is given a notice in writing informing him the grounds on which it is proposed to confiscate such property;

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and

(2) Without..............such use.

U.P. Excise Act, 1910: 72. What things are liable to confiscation:--(1) Whenever an offence punishable under this Act has been committed:

(a) Every intoxicant.............

(b) Every still, utensil,...........

(d) Every receptacle.............

(e) Every animal, cart, vessel or other conveyance used in carrying shall be liable to confiscation.

(2) Where any thing or animal is seized under any provision of this Act and the Collector is satisfied for reasons to be recorded that offence has been committed due to which such thing or animal has become liable to confiscation under Sub-section (1), he may order confiscation of such thing or animal whether or not a prosecution for such offence has been instituted:

Provided that in the case of anything except an intoxicant or animal referred to in Sub-section (1), the owner thereof shall be given an option to pay in lieu of its confiscation such fine as the Collector thinks adequate not exceeding its market value on the date of its seizure.

A.P. Excise Act, 1968: 46. Confiscation by Excise Officers in certain cases:--(1) Notwithstanding anything contained in this Act or any other law for the time being in force, where anything liable for confiscation under Section 45 is seized or detained under the provisions of this Act, the Officer seizing and detaining such properly shall, without any unreasonable delay, produce the said seized property before the Deputy Commissioner of Prohibition and Excise who has jurisdiction over the area.

(2) On production of the said seized property under Sub-section (1) the Deputy Commissioner of Prohibition and Excise if satisfied that an offence under, this Act has been committed, may, whether or not a prosecution is instituted for the commission of such an offence, order confiscation of such property.

(3)................

(4)...............

(5)...............

(6)...............'

46-A. Issue of show cause notice:No order of confiscation of any property shall be made under Section 46 unless the person from whom the said property is seized;

(a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property; and

(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice.

The validity of the above provisions has already been upheld by the High Courts as well as by the Supreme Court. A Division Bench of Madras High Court in a judgment reported in ILR 1994 II Madras 1136 consisting of Hon'ble Mr. Justice Raju and Hon'ble Mr. Justice A.R. Lakshmanan (as they then were) in a identical matter have upheld the validity of the similar provision of the Tamil Nadu Prohibition (Second Amendment) Ordinance, 1982. In that case, writ petitions were filed challenging to the constitutional validity of certain sections of the Tamil Nadu Prohibition Act and Amended Act, 1983 and the Tamil Nadu Liquor Transit Rules, 1982 framed thereunder. The broad out lines of challenge were:

(a) Whether the State legislature is competent to enact such a provision?

(b) The restrictions imposed are wholly against the larger public interest envisaged under Article 310 of the Constitution, which is essential to preserve the integrity and homegenety of the country?

(c) Whether the provisions of the impugned ordinance are violative of the petitioners' fundamental rights under Article 19(1)(g) of the Constitution of India?

66. The Bench held that the provisions under challenge are regulatory in the nature and they merely impose, if at all, reasonable and just restrictions in larger public interest, there is no merit whatsoever in the challenge to the provisions as being violative of Article 301 of the Constitution. It is useful to reproduce the observations of the Bench:

If the State Legislature, as a matter of policy and legislative wisdom thought it fit and necessary to have such a legislation to effectively prevent the unauthorised smuggling of liquor into the State under the pretext of transit or movement through the territories of the State of Tamil Nadu, this Court will if at all interfere only in such matters in vary rare occasions and extraordinary circumstances with the said decision and would normally hesitate to undertake a review of the matter as if in an appeal or in an attempt to impose its views in preference to the one expressed by the legislature. This does not at any rate render the law so made immune from the scrutiny of this Court on the touch stone of constitutionality in exercise of the undoubted powers of judicial review visualised under Articles 226 and 227 of the Constitution of India. The further plea that the impugned provisions tantamounts to interference with the rights of the petitioners to carry on his trade or business inside the Union territory of Pondicherry has no basis in law or meaning. The law in question is enforced within the territorial limits of the State of Tamilnadu and if the petitioners want to do anything inside the territorial limits they must subject themselves to the laws in force in this State and merely because they are not stationed there or their activities remain static in this State they cannot claim any immunity from complying with the laws in force in this State. The alleged violation of the so called rights of the petitioners within the territorial limits of the Union territory is a myth and the impugned law does not as such purport to interfere with his rights inside the Union territory so long as they do not curb or regulate the state of the goods after they cross beyond the territorial limits of this State.

Few decisions were cited by Mr. Jain for the proposition that the amended provisions are unreasonable. In our opinion, these decisions are not applicable and also distinguishable on facts and law, therefore, these decisions are not referred by us which will only make our judgment voluminous.

67. We have given our thoughtful consideration to the entire arguments advanced by the learned Counsel appearing for the respective parties with reference to the amended provisions of the Act. In our view by the amended provisions the rights of the citizens have not been curtailed. An alternative forum has been created under the Act and there is no illegality in the same. The Rajasthan Excise Act is an independent codified statute providing remedies for violation or contravention of any provision of the Act. Thus, in view of the discussion in the above foregoing paragraphs, the claim made by the petitioners challenging the validity of the amended provision being violative of Articles 14, 19(1)(g), 21, 22 and 301 has no weight or merit of acceptance. In our view, freedom does not mean freedom from laws or from regulation itself. Even assuming for consideration purposes, without acceeding to the claim made of the rights secured to a citizen under the provisions of the Articles of Constitution of India, the grievance of the petitioners pales into insignificance in the light of the conclusion arrived at by us that the impugned provisions are merely regulatory and in public interest and are neither prohibitive nor destructive of rights impede the free flow of inter-State trade and commerce. The fear and apprehensions expressed on behalf of the petitioners of the inconvenience or impediments that may be caused if the impugned provisions are enforced, are purely hypothetical in nature and not really problems of pragmatism, which could justifiable be said to actually prejudice the lawfully protected rights of the petitioners, the regulatory safeguards envisaged under the impugned provisions cannot be considered or held to be in excess of the requirement or of such magnitude or dimensions as would result in prohibition or total annihilation of the rights. Before concluding we would like to also highlight on the jurisdictional aspect of this Court under Article 226 of the Constitution. The powers of this Court under Article 226 of the Constitution of India are not subject to any exceptions. Therefore, we are of the view that the citizens are entitled to move this Court whenever there is threat of violation of their fundamental rights or their fundamental rights have been violated. The existence of judicial power itself does not mean that the said power can be invoked at any time and in all cases. In these cases, we have upheld the constitutional validity of the amended provisions and thus, it is for the petitioners to take further course of action under the provisions of the amended Act before the authority constituted under the provisions of the Amended Act. All the writ petitions are dismissed. The contentions raised by the learned Counsel for the petitioners are devoid of any force. However, there will be no orders as to cost.

68. Since the vehicles have already been released by interim orders of the Court, therefore, the petitioners are directed to make payment of the remaining amount due under the orders passed by the excise authorities. In view of the present order, the parties are now at liberty to move the authority competent under the amended provisions of the Act by invoking their jurisdiction either by filing a fresh petition or by prosecuting their petitions which are filed earlier. If such a petition is filed or a request is made, the authority constituted under the provisions of the Act shall take up the petitions filed already or to be filed hereinafter and dispose of the same on merits and after affording an opportunity of hearing to the parties concerned without rejecting the same on the plea of limitation.

Subject	Constitution
Court	Rajasthan High Court
Decided On	Aug-08-2002
Case Number	D.B. Civil Writ Petitions Nos. 2910 and 3267 of 2000 and 433 and 3740 of 2001
Judge	AR. Lakshmanan and; Ashok Parihar, JJ.
Reported in	2001(3)WLC419; 2003(1)WLN255
Appellant	Sawai Madhopur Oil and Pulse Industries and ors.
Respondent	State of Rajasthan and ors.
Cases Referred	Jilubhai Nanbhai Khachar and Ors. v. State of Gujarat and Anr.

Sawai Madhopur Oil and Pulse Industries and ors. Vs. State of Rajasthan and ors. - Court Judgment