- (1.) State has come up to this Court by way of this revision application impeaching the order dated 29-9-1981 passed by the Sessions Judge, Allahabad, in Criminal Appeal No. 15 of 1981 whereby he directed for the release of Truck No. UTD 4288 in favour of the opposite Party, Mala Singh, on furnishing a personal bond to the tune of Rs. 10,000.00 together with one surety of like amount with an undertaking to produce the truck in question as and when required for the purpose of criminal trial.
(2.) At the outset, the learned counsel for the opposite party, raised a preliminery objection regarding the maintainability of the revision on a plea of it being an interlocutory order, against which in view of the provisions of Sub-S. (2) of S.397, Cr. P.C., no revision is maintainable. It is devoid of merit as the order of confiscation passed under S.72 of the U.P. Excise Act, 1910, (hereinafter referred to as'the Act') is an apealable order and any order passed disposing finally a regular appeal, which was statutorily provided, cannot be termed as an interlocutory order. The language of S.397(2), Cr. P.C. which reads as under, also do not carry to the conclusion that the impugned order is interlocutory. "397(2) The power of revision conferred by Sub-Section (1) shall not be exercised in relation to an interlocutory order passed in any appeal, inquiry or trial or other proceedings." By the impugned order, the appeal as a whole has been disposed of, for the purposes of Sub-Section (2), an order can be interlocutory only when either the appeal in which the order passed or inquiry of trial or order proceedings are pending. In the present case, neither the appeal itself is pending nor the proceedings for confiscation under the Act are pending. The impugned order, thus, cannot be termed as an interlocutory order and the provisions of Sub-S. (2) of S.397 have no application in the present case. The preliminary Objection is overruled.
(3.) Learned Additional Public Prosecutor made twofold submissions, firstly that the impeached order is illegal. The owner of the truck is vicariously liable for the acts of his servant and the court below has acted illegally in holding that at this stage it also cannot be said whether the owner of the truck residing at Lucknow knew about the fact of loading of Bhang on his truck without a valid permit as the liability of the owner was vicarious; secondly, that the court below has acted without jurisdiction in directing for the release of the truck which was found being loaded with illicit contraband material regarding which there existed no valid licence, ill the face of the mandatory requirement of confiscation. S.72(5)(b) of the Act reads as under :- "72(5)(b) Without prejudice to the provisions of clause (a), no order confiscating any animal, cart, vessel or other conveyance shall be made, if the owner thereof proves to the satisfaction of the Collector that it was used in carrying the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the person incharge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use." Accordingly, it was for the owner to establish the user of the truck for loading contraband Bhang without a valid permit by the driver was without his knowledge or connivance and he took all reasonable and necessary precautions against such use.;