Haryana Gauvansh Act | HC Can Hear Plea Against Confiscation Order Despite Statutory Restriction To Appeal Before Dy Commissioner: P&H High Court

The Punjab & Haryana High Court has said that the petitioner has the statutory rights to file a revision petition challenging the confiscation order before the Sessions Court and also to invoke the inherent jurisdiction of the High Court on the Criminal Side instead of exhausting the remedy provided under Section 17 of the Haryana Gauvansh Sanrakshan and Gausamvardhan Act, 2015 (HGSG Act).

According to Section 17 of the Act, Any person aggrieved by an order made by the competent authority to confiscate the vehicle, within a period of thirty days from the date of such order, an appeal to the Deputy Commissioner of the district concerned should be preferred.

Justice Anoop Chitkara elucidated that, "the Sessions Court and the High Court while exercising powers under S.397, 401, and 482 of CrPC, 1973 or Ss. 438, 442, and 528 of BNSS, 2023, have the jurisdiction to hear the Criminal Revision Petition when either the vehicle's owner is not heard at all, or the Competent Authority or the Deputy Commissioner did not provide a reasonable opportunity of being heard. Given the above, the statutory restriction to file an appeal under section 17(5) of the HGSG Act against the order of confiscation only before the Deputy Commissioner cannot take away the powers of criminal courts under Ss. 397, 401, and 482 of CrPC, 1973 or Ss. 438, 442, and 528 of BNSS, 2023, to the extent mentioned above."

In the present case, the plea was filed by the vehicle's owner whose truck was seized for transporting cows and ox allegedly for the purpose of slaughtering. The police officer who seized the vehicle moved an application under the HGSG Act for confiscation.

An order for confiscation was passed by the Competent Authority. According to the order, the case was titled State vs. Azad, and Azad was the person who was arraigned as one of the accused because he was the driver of the alleged truck. However, the truck was registered in petitioner's name.

It was submitted that the impugned order, passed by the Competent Authority, revealed that the memo of parties was State vs. Azad. The Assistant Director represented the State, whereas the respondent, Azad, was represented by a counsel. Thus, the Competent Authority misunderstood that the person who was required to be heard under Proviso to Section S.17(2) of the HGSG Act. On the face of it, the Competent Authority did not hear the truck owner, who was the affected person in terms of Section 17 of the HGSG Act, added the counsel.

After hearing the submissions, the Court noted that, "The proviso to S. 17(2) explicitly mandated that before ordering the confiscation of the said vehicle, a reasonable opportunity of being heard shall be afforded to the owner of the said vehicle."

 In the present case, the competent authority did not grant any opportunity at all to the vehicle's owner, to speak about a reasonable opportunity. added the judge.

The Court explained that S 17(5) of the HGSG Act mandates that any person aggrieved by an order made by the competent authority under subsection (2) or sub-section (4) may, within thirty days from the date of such order, prefer an appeal to the Deputy Commissioner of the district concerned. 

"The petitioner did not file any appeal under S. 17(5) of the HGSG Act and instead filed a Criminal Revision petition before Sessions Court. Further, the legislature has also taken away the jurisdiction of courts, tribunals, or other authorities regarding the confiscation of vehicles and has conferred such jurisdiction only to the competent authority," the Court added.

Perusing Section 438 of the BNSS, the Court said, "the legislature, even in the new Avatar of CrPC, made all Magistrates, including the Executive or Judicial deemed to be inferior to the Sessions Court and the Higher Criminal Courts [438 (1) BNSS], when Sessions Court and the Higher Criminal Courts exercise their criminal jurisdiction to satisfy themselves as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings."

The judge concluded that the registered owner of the vehicle was never heard by the Competent Authority, which was a statutory requirement under the proviso to S. 17(2) of the HGSG Act.

"It reminds of the legal maxim recti est injuria. The SDM, acting as a quasi-judicial authority, was under an obligation to follow the statutory requirements, as was the additional Sessions Judge, and they did not," the Court observed.

In light of the above, the plea was allowed and the Court directed that the vehicle be released immediately to the vehicle owner with an undertaking that in case it is required to be produced in the Court, he shall do so, and further, if he sells the vehicle to any person, the said person shall also be under obligation to produce the said vehicle, if called upon to do so.

It further clarified that the petitioner shall not transfer the vehicle without obtaining permission from the Competent Authority.

Mr. Nafees Ahmad Khan, Advocate for the petitioner.

Mr. Aashish Bishnoi, DAG, Haryana.

Title: Sakeel Ahmed v. State of Haryana

Citation: 2024 LiveLaw (PH) 284

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