STATE (NCT OF DELHI)versusNARENDER

                      [2014] 1 S.C.R. 109


                   STATE (NCT OF DELHI)                              A
                                v.
                          NARENDER
               (Criminal Appeal No. 25 of 2014)

                      JANUARY 06, 2014.
                                                                     B
           [CHANDRAMAULI KR. PRASAD AND
                 KURIAN JOSEPH, JJ.]

     Delhi Excise Act, 2009:
                                                                     c
        s.61 rlw ss.58,59 and 60 - Vehicle used in commission
  of offence under the Act - Seized - Released by High Court
  exercising powers uls 451 of the Code - Held: The general
i provisions of s. 451 of the Code have to yield where a statute
  makes a special provision with regard to confiscation and          0
. disposal of the property- s. 61 of the Act with its non-obstante
  clause, puts an embargo on jurisdiction of courts to make any
! order with regard to the property used in committing any
, offence and seized under the Act- Therefore, ss.451, 452 and
  457 of the Code must yield to the provisions of the Act; and       E.
  Magistrate or High Court, while dealing with the case of seizure
. of vehicle under the Act, has no power to pass an order for
  interim custody of such vehicle on security or for its release
  - Under the Act, the vehicle seized has to be produced before
  Deputy Commissioner, who has been conferred with the power         F
  of its confiscation or release - High Court exceeded in its
  jurisdiction in directing release of the vehicle on security -
  Impugned order of High Court is set aside - Code of Criminal
'Procedure, 1973 - ss.451, 452 and 457.

     INTERPRETATION OF STATUTES:                                     G

     Non-obstante clause in a statute - General provisions
 and special provision - Interpretation of


                               109                                   H
    11 O       SUPREME COURT REPORTS         [2014] 1 S.C.R.


A     An FIR for offences u/ss 33(a) and 58 of the Delhi
  excise Act, 2009 was registered, as 47 cartons of
  unauthorized liquor were found inside a vehicle. The
  respondent's application for release of the vehicle was
  rejected by the Magistrate. However, the High Court
B allowed his petition under s.482 of the Code and directed
  the vehicle to be released on furnishing security.

       The State filed the instant appeal contending that in
  view of the embargo put by s.61 of the Delhi Excise Act,
C the High Court had no jurisdiction to pass an order for
  release of the vehic:le.

           Allowing the appeal, the Court

      HELD: 1.1. Section 33(a) of the Delhi Excise Act, 2009
0 makes   it evident that transportation of any intoxicant in
  contravention of the provisions of the Act or of any rule
  or order made or notification issued or any licence, permit
  or pass, is punishable and any vehicle used for carrying
  the same, is liable for confiscation u/s 58(d) of the Act.
E Section 59 of the Act deals with the power of
  confiscation of Deputy Commissioner in certain cases.
  Under the scheme of the Act any vehicle used for carrying
  the intoxicant is liable to be confiscated and on seizure
  of such vehicle, the same is required to be produced
  before the Deputy Commissioner, who in turn has been
F conferred with the power of its confiscation. [para 8J [115-
  E-F, G-H; 116-AJ
       1.2. Section 61 of the Act puts an embargo on
  jurisdiction of courts !aying down that notwithstanding
G anything contrary contained in any other law for the time
  being in force, no court shall have jurisdiction to make
  any order with regard to the property used in committing
  any offence and seized under the Act. [para 9-1 OJ [116-
  A-B, DJ
H
      STATE (NCT OF DELHI) v. NARENDER               111

     1.3. In the instant case, the High Court, while A
releasing the vehicle on security has exercised its power
u/s 451 of the Code of Criminal Procedure, 1973. The
general provision of sA51_ of the Code with regard to the
custody and disposal of the property or for that matter
by destruction, confiscation or delivery to any person B
entitled to possession thereof u/s 452 of the Code or that
of s.457 authorising a Magistrate to make an order for
disposal of property, if seized by an officer and not
produced before a criminal court during an inquiry or
trial, however, has to yield where a statute makes a C
special provision with regard to its confiscation and
disposal. [para 11] [116-E, G-H; 117-A-B]

     1.4. From the scheme of the Act it is evident that the
vehicle seized has to be produced before the Deputy
Commissioner, who in turn has been conferred with the D
power of its confiscation or release to its rightful owner.
The requirement of production of seized property before
the - D~puty Commissioner u/s 59(1) of the Act is,
notwithstanding anything contained in any other law,
and, so also is the power of confiscation. In the instant E.
case, the Legislature has used a non-obstante clause
not only in s.59 but also in s.61 of the Act. A non-obstante
clause is a legislative device to give effect to the enacting
part of the section in case of conflict over the provisions
mentioned in the non~obstante clause. Therefore, ss.451, F
452 and 457 of the Code must yield to the provisions of
the Act; and the Magistrate or for that matter the High
Court, while dealing with the case of seizure of vehicle
under the Act, has no power to pass an order dealing
with the interim custody of the vehicle on security or its G
release. [para 11] [117-B-F]
    State of Karnataka v. K.A. Kunchindammed 2002 (3)
SCR 162 = (2002) 9 sec 90 - relied on.
    Oma Ram v. State of Rajasthan, 2008 (6) SCR 747 = H
    112       SUPREME COURT REPORTS               [2014] 1 S.C.R.


A   (2008) 5 SCC 502 - referred to.

          1.5. The High Court exceeded in its jurisdiction in
    directing for release of the vehicle on security. Therefore,
    the impugned judgment and order of the High Court is
8   set aside. [para 14] [119-8]

                          Case Law Reference:

          2002 (3) SCR 162         relied on             para 11

          2008 (6) SCR 747         referred to           Para 13
c
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 25 of 2014.

        From the Judgment & Order dated 28.11.2011 of the High
D   Court of Delhi at New Delhi in Crl. M.C. No. 2540 of 2011.

        Mohan Jain, ASG, Deepak Jain, D.K. Thakur, M. Pasha,
    D.S. Mahra, B.V. Balaram Das for the Appellant.

          Harish Pandey for the Respondent.
E
          The Judgment of the Court was delivered by

        CHANDRAMAULI KR. PRASAD, J. 1. The State of
    Delhi, aggrieved by the order dated 28th of November, 2011
    passed by the Delhi High Court in Criminal M.C. No. 2540 of
F   2011, whereby it had directed for release of the vehicle bearing
    Registration No. HR-56-7290 to the registered owner on
    security, has preferred this special leave petition.

          2. Leave granted.

G        3. Shorn of unnecessary details, facts giving rise to the
    present appeal are that while constables ~aghmender Sirtgh
    and Sunil were on night patrolling duty at Kirari Nithari turn on
    17th of April, 2011, they saw a vehicle coming from the side of
    the Nftfle1ri V111age. Co~aghmender Singh signalled the
H   driver to stop the vehicle, but he did not accede-to his command
         STATE (NCT OF DELHI) v. NARENDER                      113
           [CHANDRAMAULI KR.PRASAD, J.]

 and turned the vehicle into the Prem Nagar Extension Lane.           A
 Both the constables chased the vehicle on their motorcycle and
 the driver of the vehicle, apprehending that he would be caught,
 left the vehicle and ran away from the place, taking advantage
 of the darkness. The vehicle abandoned by the driver was
 "Cruiser Force" and had registration No. HR-56-7290. After           B
 opening of the windows of the vehicle, 27 Cartons. each
 containing 12 bottles of 750 ml. Mashaledar country-made
 liquor and 20 Cartons, each containing 48 quarters of Besto
 Whisky were found inside the vehicle. All the 47 Cartons were
 embossed with 'Sale in Haryana only'. Constable Raghmender           c
 Singh gave a report to the police and on that basis FIR No.
 112 of2011dated17.04.2011 was registered atAman Vihar
 Police Station under Section 33(a) and Section 58 of the Delhi
 Excise Act, 2009. During the course of investigation, Narender,
 respondent herein, claiming to be the owner of the vehicle, filed    D
 an application for its release on security, before the
 Metropolitan Magistrate, Rohini, who, by his order dated 24th
 of May, 2011 rejected the same, inter alia, holding that he has
 no power to release the vehicle seized in connection with the
 offence under the Delhi Excise Act. The respondent again fil~d
                                                                      E
 an application for the same relief i.e. for release of the vehicle
 on security before the Metropolitan Magistrate but the said
 application also met with the same fate. By order-dated 14th
 of July, 2011, the learned Metropolitan Magistrate declined to
 pass the order for release, inter alia, observing that any order
 directing for release of the vehicle on security would amount        F
 to review of the order dated 24th of May, 2011, which power
 the court did not possess.

       4. Aggrieved by the same, th-a respondent filed an
  application before the High Court under Section 482 of the          G
. Code of Criminal Procedure (hereinafter referred to as 'the
  Code'), assailing the order dated 24th May, 2011 passed by
  the learned Metropolitan Magistrate. The High Court, by its
  impugned order dated 28th of November, 2011 directed the
  vehicle to be released in favour of the registered owner on         H
    114        SUPREME COURT REPORTS                 [2014] 1 S.C.R.


A   furnishing security to the satisfaction of the Metropolitan
    Magistrate. While doing so, the High Court has observed as
    follows:
          "......... The vehicle in question was seized by the Police
          and not confiscated and if that was so, Section 58, Delhi
B
          Excise Act would not apply with regard to the vehicle in
          question and the procedure that was to be followed
          regarding the vehicle was to be found in Chapter VI of Delhi
          Excise Act and also Section 451, Cr.P.C ......... "

C      5. Mr. Mohan Jain, Additional Solicitor General appears
  on behalf of the appellant whereas the respondent is
  represented by Mr. Harish Pandey. Mr. Jain submits that in view
  of the embargo put by Section 61 of the Delhi Excise Act, the
  High Court had no jurisdiction to pass an order for release of
D the vehicle on security. Mr. Pandey, however, submits that the
  High Court has the power under Section 451 of the Code to
  direct for release of the vehicle on security and the same is legal
  and valid.

E        6. Rival submissions necessitate examination of the
    scheme of the Delhi Excise Act, 2009 (hereinafter referred to
    as 'the Act'). Section 33 of the Act provides for penalty for
    unlawful import, export, transport, manufacture, possession, sale
    etc. of intoxicant and Section 33(a), which is relevant for the
    purpose reads as follows:
F
          "33. Penalty for unlawful import, export, transport,
          manufacture, possession, sale, etc.- (1) Whoever, in
          contravention of provision of this Act or of any rule or order
          made or notification issued or of any licence, permit or
G         pass, granted under this Act-
          (a) manufactures, imports, exports, transports or removes
          any intoxicant;

                xxx                     xxx               xxx
H
        STATE (NCT OF DELHI) v. NARENDER                      115
          [CHANDRAMAULI KR.PRASAD, J.]
     shall be punishable with imprisonment for a term which          A
     shall not be less than six months but which may extend to
     three years and with fine which shall not be less than fifty
     thousand rupees but which may extend to one lakh rupees."

     7. Section 58 of the Act provides for confiscation of certain
                                                                     B
things and Section 58(d) thereof, with which we are concerned
in the present appeal, reads as follows:

     "58. Certain things liable to confiscation.- Whenever
    an offence has been committed, which is punishable under
    this Act, following things shall be liable to confiscation,      C
    namely-

           xxx             xxx               xxx

          (d) any animal, vehicle, vessel, or other conveyance       D
     used for carrying the same."

      8. From a plain reading of Section .33(a) of the Act, it is
evident that transportation of any intoxicant in contravention of
the provisions of the Act or of any rule or order made or
notification issued or any licence, permit or pass, is punishable    E
and any vehicle used for carrying the same, is liable for
confiscation under Section 58(d) of the Act. Section 59 of the
Act deals with the power of confiscation of Deputy
Commissioner in certain cases. Section 59(1) thereof provides
that notwithstanding anything contained in any other law where       F
anything liable for confiscation under Section 58 is seized or
detained, the officer seizing and detaining such thing shall
produce the same before the Deputy Commissioner. On
produccion of the seized property, the Deputy Commissioner,
if satisfied that the offence under the Act has been committed,      G
may order confiscation of such property. Therefore, under the
scheme of the Act any vehicle used for carrying the intoxicant
is liable to be confiscated and on seizure of the vehicle
transporting the intoxicant, the same is required to be produced
before the Deputy Commissioner, who in turn has been
                                                                     H
    116       SUPREME COURT REPORTS                 [2014) 1 S.C.R.


A conferred with the power of its confiscation.

         9. Section 61 of the Act puts an embargo on jurisdiction
    of courts, the same reads as follows:

          "61. Bar of jurisdiction in confiscation.- Whenever any
B         intoxicant, material, still, utensil, implement, apparatus or
          any receptacle, package, vessel, animal, cart, or other
          conveyance used in committing any offence, is seized or
          detained under this Act, no court shall, notwithstanding
          anything to the contrary contained in any other law for the
c         time being in force, have jurisdiction to make any order with
          regard to such property."

       10. According to this section, notwithstanding anything
  contrary contained in any other law for the time being in force,
D no court shall have jurisdiction to make any order with regard
  to the property used in committing any offence and seized under
  the Act.

         11. It is relevant here to state that in the present case, the
  High Court, while releasing the vehicle on security has
E exercised its power under Section 451 of the Code. True it is
  that where any property is produced by an officer before a
  criminal court during an inquiry or trial under this section, the
  court may make any direction as it thinks fit for the proper
  custody of such property pending the conclusion of the inquiry
F or trial, as the case may be. At the conclusion of the inquiry or
  trial, the court may also, under Section 452 of the Code, make
  an order for the disposal of the property produced before it and
  make such other direction as it may think necessary. Further,
  where the property is not produced before a criminal court in
G an inquiry or trial, the Magistrate is empowered under Section
  457 of the Code to make such order as it thinks fit. In our
  opinion, the general provision of Section 451 of the Code with
   regard to the custody and disposal of the property or for that
   matter by destruction, confiscation or delivery to any person
H entitled to possession thereof under Section 452 of the Code
        STATE (NCT OF DELHI) v. NARENDER                     117
          [CHANDRAMAULI KR.PRASAD, J.]
or that of Section 457 authorising a Magistrate to make an          A
order for disposal of property, if seized by an officer and not
produced before a criminal court during an inquiry or trial,
however, has to yield where a statute makes a special provision
with regard to its confiscation and disposal. We have referred
to the scheme of the Act and from that it is evident that the       B
vehicle seized has to be produced before the Deputy
Commissioner, who in turn has been conferred With the power
of its confiscation or release to its rightful owner. The
requirement of production of seized property before the Deputy
Commissioner under Section 59(1) of the Act is,                     c
notwithstanding anything contained in any other law, and, so
also is the power of confiscation. Not only this, notwithstanding
anything to the contrary contained in any other law for the time
being in force, no court, in terms of Section 61 of the Act, has
jurisdiction to make any order with regard to the property used     0
in commission of any offence under the Act. In the present case,
the Legislature has used a ncin-obstante clause not only in
Section 59 but also in Section 61 of the Act. As is well settled,
a non-obstante clause is a legislative device to give effect to
the enacting part of the section in case of conflict over the       E
provisions mentioned in the non-obstante clause. Hence,
Section 451, 452 and 457 of the Code must yield to the
provisions of the Act and there is no escape from the conclusion
that the Magistrate or for that matter the High Court, while
dealing with the case of seizure of vehicle under the Act, has
any power to pass an order dealing with the interim custody of      F
the vehicle on security or its release thereof. The view which
we have taken finds support from a judgment of this Court in
the case of State of Karnataka v. K.A. Kunchindammed,
(2002) 9 SCC 90, which while dealing with somewhat simi.lar
provisions under the Karnataka Forest Act held as follows:.-        G

    "23 ......... .The position is made clear by the non obstante
    clause in the relevant provisions giving overriding effect to
    the provisions in the Act over other statutes and laws. The
    necessary corollary of such provisions is that in a case        H
    118        SUPREME COURT REPORTS                 [2014] 1 S.C.R.


A         where the Authorized Officer is empowered to confiscate
          the seized forest produce on being satisfied that an
          offence under the Act has been committed thereof the
          general power vested in the Magistrate for dealing with
          interim custody/release of the seized materials under
B         CrPC has to give way. The Magistrate while dealing with
          a case of any seizure of forest produce under the Act
          should examine whether the power to confiscate the
          seized forest produce is vested in the Authorized Officer
          under the Act and if he finds that such power is vested in
c         the Authorized Officer then he has no power to pass an
          order dealing with interim custody/release of the seized
          material. This, in our view, will help in proper
          implementation of provisions of the special Act and will
          help in advancing the purpose and object of the statute. If
           in such cases power to grant interim custody/release of the
D
           seized forest produce is vested in the Magistrate then it
          will be defeating the very scheme of the Act. Such a
           consequence is to be avoided.

          24. From the statutory provisions and the analysis made
E         in the foregoing paragraphs the position that emerges is
          that the learned Magistrate and the learned Sessions
          Judge were right in holding that on facts and in the
          circumstances of the case, it is the Authorized Officer who
          is vested with the power to pass order of interim custody
F         of the vehicle and not the Magistrate. The High Court was
          in error in taking a view to the contrary and in setting aside
          the orders passed by the Magistrate and the Sessions
          Judge on that basis."

G        12. From a conspectus of what we have observed above,
    the impugned order of the High Court is found to be vulnerable
    and, therefore, the same cannot be allowed to stand.

       13. To put the record straight it is relevant here to state that
  the counsel for the respondent had not, and in our opinion rightly,
H challenged the vires of the provisions of the Act in view of the
        STATE (NCT OF DELHI) v. NARENDER                        119
          [CHANDRAMAULI KR.PRASAD, J.]
decision of this Court in the case of Oma Ram v. State of              A
Rajasthan, (2008) 5 sec 502, which upheld a somewhat
similar provision existing in the Rajasthan Excise Act.

     14. In the result, we allow this appeal, set aside the
impugned judgment and· order of the High Court and hold that           B
the High Court exceeded in its jurisdiction in directing for release
of the vehicle on security.

RP.                                              Appeal allowed.