PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the order dated 27.01.2015 passed by learned Sessions Judge, Dungarpur, in Criminal Revision Petition No.2/2015 whereby the learned court below has dismissed the revision petition and confirmed the order dated 23.12.2014 passed by learned Additional Chief Judicial Magistrate, Dungarpur in connection with FIR No.301/2014 registered at Police Station Bichhiwara, District Dungarpur for the offences under Section 19/54 and 57 of Rajasthan Excise Act, whereby dismissed the application under Section 451 Cr.P.C. preferred by the petitioner for releasing 350 bags of material transported through the vehicle container bearing No.HR 55 D 4377.
(2.) Learned counsel for the petitioner states that it is undisputed that the petitioner is a transport company and 350 bags were to be transported under the contract with Indian Oil Corporation Limited. The fact of package not being of excisable article is also not disputed. These facts are not disputed by the parties before the learned court below and the learned court below has agreed to these propositions but has refused to grant any indulgence on account of used the package in concealment of the use of excisable material.
(3.) Learned counsel for the petitioner has drawn attention of the Court to Section 69 of the Rajasthan Excise Act, 1950 which reads as follows: "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 along with 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 receptacles or package shall be liable to confiscation: [***deleted 3 May 2000] (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 think fit. Provided further that, if the excisable articles seized in connection with an offence under this Act are such as cannot be legally sold in Rajasthan in the form they were seized, such excisable articles may be ordered to be confiscated by the District Excise Officer concerned, whether or not prosecute on is instituted for the offence and whether or not the offence is compounded; and *"(2-A) Where the District Excise Officer, after passing an order of confiscation under sub-section (2) is of the opinion that it is expedient in the public interest to do so, he may order the confiscated excisable articles or any part thereof to be sold by public auction or to be destroyed or disposed of departmentally in accordance with the rules made by the State Government in this behalf. (2-B) Whenever any excisable articles is seized under sub-section (1), the District Excise Officer shall have, and, notwithstanding anything contained in any other 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 and release of such property.". (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 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 Govt. 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 Govt. 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 Commissioner 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 an officer authorised by the State Government in this behalf and the matter shall be referred to the State Government by the Excise Commissioner or the officer authorised by the State Government in this behalf, for making such orders regarding means of conveyance as the State Government may deem fit: Provided also that before ordering confiscation under this sub-section the owner of the means of conveyance, referred to in Clause (e) of Sub-section (I), may be given an option to pay in lieu of confiscation, a fine not exceeding the market price of such means of conveyance. (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 of conveyance is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of such sale or auction or other 35 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 in appeal 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.";