BINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) On the basis of the allegations that the petitioner had cheated the Excise and Taxation Department by evading tax by carrying Karyana goods loaded in a truck, a case under Section 420 IPC has been registered against the petitioner. The truck and the case property were released on sapurdari by the learned trial Magistrate. ETO, Mobile Wing, Patiala filed an application for cancellation of sapurdari order dated 14.12.2009 claiming that the truck along with goods was taken into custody by him and the goods were detained as the loaded truck evaded the tax of the State under Section 51 of the Punjab VAT Act, 2005. The vehicle and the goods were allegedly entrusted to the Police with a direction that the same will not be released without intimation to the Taxation authorities. A notice was served upon the owner of the goods and penalty to the tune of Rs. 2,87,010/- had been imposed and VAT calculated came to Rs. 50,648/-. As such, sum of Rs. 337658/- was recoverable from the petitioner. The learned Magistrate after hearing the arguments reviewed his order and cancelled the order dated 14.12.2009 vide order dated 16.02.2010. A revision was filed by the petitioner before the learned Sessions Judge, Bathinda but learned Sessions Judge has also vide order dated 05.05.2011 dismissed the revision petition. Legality and propriety of the order, cancelling the order of sapurdari and dismissal of the revision have been challenged through instant petition under Section 482 Cr.P.C. Learned counsel for the petitioner has contended that the order dated 16.02.2010 passed by the learned Magistrate and order dated 05.05.2011 passed by the learned Sessions Judge, Bathinda are illegal.

(2.) I have gone through the order passed by the learned Magistrate regarding cancellation of order of sapurdari on 16.02.2010 as well as order in revision passed by the learned Sessions Judge, Bathinda on 05.05.2011. The basic reason for cancelling the sapurdari order is that the truck along with goods was handed over by ETO-cum-Director (Investigation) Mobile Wing, Patiala to In-charge, Police Station, Sangat, with a request to release the goods only on written information of Excise & Taxation Officer and that it was incumbent upon the police to bring this fact to the notice of the Court. It is important to note here that it will be a serious debatable issue whether offence under Section 420 IPC is made out against the petitioner on the basis of the allegation of evasion of tax. The application submitted by ETO for cancellation of sapurdari order dated 14.12.2009 indicates that the grievance of the said officer is that all the aforesaid proceedings have been initiated for recovery of VAT, evaded by the petitioner. Whether the petitioner can be deprived of the case property solely on the ground that the case property had been taken in possession by the police on the ground that the huge amount is recoverable from the petitioner under provisions of Punjab VAT Act, 2005. The release of case property is governed by Chapter XXXIV of the Code of Criminal Procedure under Sections 451 to Section 459. Section 451 enables a criminal Court during the course of enquiry or trial to dispose of the case property. Section 452(1) empowers the Criminal Court to pass any order as it thinks fit for the disposal, by destruction, consfication or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it. Section 452(2) enables the Court to release the case property to a person subject to any condition of furnishing a bond or otherwise. It is a settled principle of law as laid down by Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat , 2003 AIR(SC) 638 that owner of article would not suffer because of the case property remaining unused or by its misappropriation. The Court is required to exercise the powers of release of case property promptly and to ensure that the articles are not kept for a long time at the Police Station, in any case, for not more than fifteen days to one month.

(3.) Taking into consideration the spirit of the provisions of Chapter XXXIV of the Code of Criminal Procedure, the Magistrate had rightly ordered the release of the case property i.e. Truck and the grossery items to the petitioner. It is also settled principal of law that a Magistrate is not competent to review his own order. The power of review appears to have been wrongly exercised by the learned Magistrate while passing order dated 16.02.2010. Even, the ETO had no locus standi to file an application for cancellation of order of release of goods on sapurdari by moving an application before the said Court. In context to the proceedings initiated under the provisions of Punjab VAT Act, 2005 and the liability of petitioner to any penalty, it is always open to the competent authority to proceed against the petitioner in accordance with the procedure of law prescribed under Punjab VAT Act, 2005 and the rules framed thereunder. In case any amount is found due from the petitioner, the procedure for recovery is mentioned in Section 51 of the said Act. Section 51(4), third proviso, specifically lays down that no penalty can be imposed unless the person concerned has been given an opportunity of being heard. This petition deserves to be allowed. Without prejudice to the right of the Excise and Taxation Department to proceed against the petitioner for recovery of any amount in accordance with procedure of law, order dated 16.02.2010, passed by the learned Magistrate cancelling order of sapurdari and order dated 5.5.2011 passed by learned Sessions Judge, Bathinda, dismissing the revision petition of the petitioner, are hereby set aside being without jurisdiction, illegal and improper.