2017 (6) TMI 1266 - HC - Indian Laws

Release of seized vehicle - burden of proof - Abkari Act - right conferred upon the owner of the vehicle to get his vehicle released, taking out of the clutches of Section 67B, in terms of Section 67C(2) of the Act - Scope of Sections 67B and 67C - whether the burden of proof is upon the prosecution or upon the owner of the vehicle, to get the vehicle released, with reference to the absence of knowledge as envisaged under Section 67C(2) of the Abkari Act, from the consequences of confiscation under Section 67B of the Act? Held that - The provision for confiscation of a vehicle carrying a contraband is stipulated under Section 67B of the Act, which is as part of the Scheme of the Statute to prevent the persons concerned in indulging such activities from committing the offences, which are detrimental more to the society and the public at large. Section 67B(2) clearly stipulates that, when the authorised officer is satisfied that an offence under the Act has been committed with involvement of the property/vehicle seized, it is liable to be confiscated under the Act. While discharging the said duty by the authorised officer, the procedure to be followed in Section 67C(1) of the Act, stipulates that no order of confiscation shall be made, unless the person from whom the vehicle/property is seized, is given a notice in writing informing him on the ground on which it was proposed to be confiscated and giving an opportunity to make a representation in writing and reasonable opportunity of being heard in the matter. Once these requirements are satisfied, then the order of confiscation may follow, but still there is an exception by which the vehicle can be spared. The only way in which the owner can escape from the liability of confiscation under Section 67B is the situation under Section 67C(2) - It is quite clear that the exception drawn conferring a right upon the owner to save his vehicle from confiscation under Section 67B of the Act is subject to the proof to be adduced by him, to the satisfaction of the authorized officer, that the vehicle was used to carry the contraband without his knowledge or connivance, his agent, if any, and the person in charge of the animal, cart, vessel or conveyance and that each of them had taken all reasonable and necessary precautions against such use. Burden to prove - Held that - Normally it is for the prosecution to establish the offence alleged against the accused as per the criminal jurisprudence. But the concept of shifting the burden to the other side, to prove that he was not involved, is not alien to the scheme of the Statute, as evident from Section 64 of the Act - in respect of the offence under Section 55(a) of the Abkari Act, it is for the accused to prove that, he was possessing the item concerned based on a valid authority and the burden of proof is never upon the prosecution. This is with intent to give effect to the scheme of the Statute, which is more deterrent in nature, to prevent the persons from indulging in such activities contrary to the provisions of law - the owner has to establish not only that he himself was not having knowledge, he has also to establish that his agent, if any, and the person who was under the control of the vehicle had no knowledge as to the transportation of the said contraband in the vehicle and each of them had taken all reasonable and necessary precaution to see that the vehicle was never put to such use. The scope of the Statute is something else i.e. the burden of proof is upon the owner of the vehicle and it is for him to establish all the four requirements as mentioned already, which are not satisfied in the instant case. This being the position, we do not require any second thought to hold that the verdict passed by the learned Single Judge requires to be interdicted - The judgment dated 28/07/2015 stands set aside and the orders passed by the Departmental Authorities are restored - appeal allowed.

Summary

Issues Involved:
1. Burden of Proof in Vehicle Confiscation under the Abkari Act
2. Compliance with Procedural Requirements for Confiscation
3. Effect of Acquittal in Criminal Proceedings on Confiscation

Detailed Analysis:

1. Burden of Proof in Vehicle Confiscation under the Abkari Act
The primary issue revolves around whether the burden of proof lies on the prosecution or the vehicle owner to establish the absence of knowledge or connivance in the transportation of contraband. The court clarified that under Section 67C(2) of the Abkari Act, the burden of proof is on the owner to demonstrate that the vehicle was used without his knowledge or connivance and that all reasonable precautions were taken to prevent such misuse. The court stated, "The owner has to satisfy all the four requirements simultaneously, so as to get the benefit of this provision." This contradicts the learned Single Judge's view that the burden was on the prosecution.

2. Compliance with Procedural Requirements for Confiscation
The court examined whether procedural requirements under Section 67C(1) were followed, which include giving notice, an opportunity for representation, and a hearing before confiscation. The court found that these requirements were satisfied, as the owner was given notice and an opportunity to be heard, but failed to meet the burden of proof under Section 67C(2). The court emphasized, "The provision never says that it is the obligation of the Prosecution/State."

3. Effect of Acquittal in Criminal Proceedings on Confiscation
The court addressed whether the acquittal of the accused in the criminal case impacts the confiscation of the vehicle. It was held that prosecution or acquittal is not a pre-requisite for confiscation under Section 67B of the Act, which operates independently of criminal proceedings. The court noted, "The question whether the accused was acquitted in the criminal case...is not a relevant or significant aspect in pursuing steps under Section 67B of the Act."

Conclusion:
The court concluded that the burden of proof lies on the vehicle owner to prove the absence of knowledge or connivance in the transportation of contraband. The procedural requirements for confiscation were met, and the acquittal in the criminal case does not affect the confiscation proceedings. The judgment of the learned Single Judge was set aside, and the orders of the Departmental Authorities were restored. The appeal was allowed, permitting the authorities to proceed with the confiscation or encash the Bank Guarantee.