LAKSHMANAN, CJ. - (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 Sec. 54 (ka) and sub-sections 4 to 9 in Sec. 69 of the Excise Act may be declared ultravires and be struck down. (b) By an appropriate writ, order or direction, the amendment in the Excise Act, 1950, by incorporating Sec. 9-B may be declared ultravires 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 petitioners, the same may also be quashed and set aside.
(2.) ON behalf of the petitioners, we heard S/Shri Narendra Jain, Manish Bhandari, R.S. Chauhan and R.P. Garg and counsel for the petitioners in the writ petitions mentioned in the scheduled attached, have adopted their arguments. ON behalf of 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. . 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 Art. 254 of the Constitution of India and without the assent of the President, the same are ultra-vires. (c) The amended provisions confer unguided powers on the excise authorities. (d) By Section-9B, the remedy of judicial review is taken away and the petitioners are remedyless. 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 Government 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 Sec. 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 article. It is submitted that the provisions were brought for preventing the smuggling and evasion of excise revenue. Arguing further Shri Narendra Jain submitted that as per the provisions of Sec. 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 Sec. 54A has been inserted and Sec. 69 of the Act has also been amended and as per amended sub-section 6 of Sec. 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, Sec. 54 A and Sec. 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-Sec. 6 of Sec. 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 Sec. 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 u/Sec. 482 Cr.P.C. have been curtailed. If a strict interpretation is taken, then powers of High Court under Art. 226 of the Constitution in these matters have been taken. Therefore, he would submit that the provisions of the Amended Act are ultravires of the provisions of the Constitution as well as ultravires to the provisions of Sec. 451, 452 and 457 of the Code of Criminal Procedure. Shri Manish Bhandari submitted that as per the amended Sec. 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.
(3.) 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. Elaborating his submission, Shri 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. Sec. 451 and 457 of Cr.P.C. clearly deal with the disposal of property involved in a criminal trial. Similarly, Sec. 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 repugnance between the central legislation and the State legislation. Thus, he submitted that Sec. 69(4) of the Act is void in the light of Article 254 of the Constitution of India. Thus, both the sections are unconstitutional. Learned counsel for the respective petitioners would submit that Sec. 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. Sec. 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 Sec. 54A of the Act is highly arbitrary, unreasonable law and is in violation of Articles 14 and 21 of the Constitution. ;