The Allahabad High Court has disposed of the petition, saying that confiscation of a vehicle without giving the option to pay a fine was illegal.
A Single Bench of Justice Abdul Moin passed this order while hearing a petition filed by Kaushal Kishore Tiwari.
The petition has been filed praying for the following relief:
“(i) Issue an order to set-aside the order dated 01.11.2022 passed by the Additional Session Judge, Gonda in Civil Appeal under section 72(7) of UP Excise Act, 1910, “Kaushal Kishore Tiwari vs State of U.P” as well as order dated 22.11.2021 passed by the court of District Magistrate/ Collector/City Magistrate, District-Gonda in Case under section 72 of UP Excise Act, 1910, State of UP vs Kaushal Kishre Tiwari…..”
Pankaj Srivastava, Additional Chief Standing Counsel states on the basis of instructions sent by the District Excise Officer, Gonda dated 17.12.2022 that by means of the order dated 22.11.2021 the vehicle of the petitioner has been confiscated without giving an option to pay a fine in lieu thereof.
The Court noted that,
It has already been indicated in the order dated 14.12.2022 that the sine qua non to the confiscation is an option to the person to pay in lieu of confiscation such a fine as the competent authority / Collector thinks adequate.
As from a perusal of the order impugned dated 22.11.2021 it emerges that no such option was given to the petitioner consequently the order dated 22.11.2021 would run foul to the provisions of Section 72(2) of the UP Excise Act, 1910.
In this regard the Additional Chief Standing Counsel has drawn the attention of the Court towards Section 72(6) of the Act 1910 which gives power to the Collector to review an order of confiscation as made under Section 72(2) of the Act 1910. However he contends that only a period of one month has been given for an order to be passed by the Collector as such no such review would now be possible.
The Court observed that,
Having heard counsel for the parties and having perused the record, what emerges is that by means of the order dated 22.11.2021 an order of confiscation of the petitioners’ motorcycle has been passed. However the sine qua non to such an order is an option to be given to the owner for paying fine in lieu thereof which option admittedly has never been given to the petitioner.
As the said omission on the part of the authority concerned is writ large on the face of the order impugned order dated 22.11.2021 and the authority has got the power of review as provided under Section 72(6) of the Act 1910 and although the said power of review is to be exercised within a period of 30 days, the Court considering the peculiar facts of the case disposed of the Petition directing the Additional Magistrate Collector, District Gonda to exercise the power as vested in him under Section 72(6) of the Act 1910 and an order be passed in this regard within a period of one month from the date of receipt of certified copy of the order keeping in view the discussion made above.
Till an order is passed the vehicle confiscated by the respondents shall not be auctioned, the Court ordered.