THE MAGISTRATE CAN IMPOSE A FINE IN LIEU OF CONFISCATION OF NON-EXCISEABLE ARTICLES UNDER THE PROVISO OF SECTION 69(2) OF THE RAJASTHAN EXCISE ACT, 1950.

Pushpendra Singh Bhati, J.

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 & 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 unde