High Court of Delhi

Deepak Hooda Vs. The Excise Commissioner and Ors.

MANU/DE/0044/2020

09.01.2020

Excise

Confiscation proceedings are in nature of civil proceedings and standard of proof is preponderance of probabilities

The Petitioner has filed the present petition, impugning an order passed by the Financial Commissioner, whereby the appeal preferred by the Petitioner against an order passed by the Commissioner of Excise under Section 73(2) of the Excise Act, 2009 (Excise Act), was rejected. By the said order, the Commissioner of Excise had rejected the Petitioner's appeal against an order passed by the Deputy Commissioner of Excise under Section 59 of the Excise Act, whereby the Petitioner's vehicle was confiscated on account of being used in commission of an offence punishable under Section 33 of the Excise Act.

The Petitioner contends that, prosecution proceedings are pending and he has not been convicted of committing any offence under Section 33 of the Excise Act as yet. Therefore, confiscation of his vehicle is pre-mature. The Respondents contend that, the proceedings for confiscation under Section 59 of the Excise Act are independent of the prosecution proceedings and thus, pendency of the said proceedings do not preclude confiscation of his vehicle under Section 59 of the Excise Act. Thus, the principal question to be addressed is whether the proceedings for confiscation under Section 59 of the Excise Act can be maintained and proceeded with independent of the prosecution for committing an offence under Section 33 of the Excise Act.

In the present case, it is alleged that the vehicle in question was used for unlawfully importing/transporting liquor into Delhi. Thus, the said liquor as well as the vehicle used in commission of such offence is liable to be confiscated in terms of Section 58 of the Excise Act.

Sub-Section (2) of Section 59 of the Excise Act makes it expressly clear that, a Deputy Commissioner can exercise its powers for confiscation of property, if any offence under the Excise Act has been committed irrespective of whether the prosecution has been instituted for commission of such an offence. The language of Sub-Section (2) of Section 59 of the Excise Act leaves no room for any doubt that, the confiscation proceedings under Section 58 and 59 of the Excise Act are wholly independent of the prosecution proceedings, which are required to be tried by the M.M.

Section 61 expressly provides that, no court would have the jurisdiction to make any further order in respect of the specified property, which is used in committing any offence as contemplated under the Excise Act. It is, however, necessary to clarify that, the order of confiscation would not, in any manner, prejudice the person accused in any criminal case instituted for prosecuting him for committing an offence under the Excise Act. The standard of proof required to be met in criminal proceedings is also not the same as is required for confiscation under Section 59 of the Act. It is well settled that, confiscation proceedings are in the nature of civil proceedings and the standard of proof is preponderance of probabilities. The contention that the Deputy Commissioner (Excise) was required to take prior permission of the learned M.M. before confiscating the vehicle in question by passing the impugned order is unmerited.

Even in cases where the order of confiscation has not attained finality on account of it being challenged, the seized vehicle can be sold and it is not necessary to withhold the sale. In the present case, the proceedings for confiscation have attained finality and the Petitioner has exhausted all his remedies of appeal against the impugned order of confiscation.

A plain reading of Section 52(2) of the Excise Act indicates that, it provides a rebuttable presumption that the owner, of a vehicle which is used in commission of an offence under the Excise Act, is guilty of such an offence. It is open for the owner of such a vehicle to satisfy the concerned Court that he had exercised due care in prevention of commission of the offence.

In the facts of the present case, the Petitioner has been unable to satisfy the Deputy Commissioner (Excise) that, he was not involved in the offence. The FIR indicated that the petitioner was driving the vehicle in question when it was seized. Present Court finds no reason to interfere with the impugned orders. The petition is unmerited and is, accordingly, dismissed.

Tags : Unlawful import Confiscation Vehicle

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