Case Note & Summary
The petitioner, Vijay Kashinath Wankar, filed a Criminal Writ Petition under Article 227 of the Constitution of India before the Bombay High Court, Nagpur Bench, challenging an order passed by the Additional Superintendent of Police/Competent Authority, Gadchiroli, confiscating his vehicle. The vehicle was seized in connection with Crime No.165/2017 for offences under Sections 65(a), 98(1)(c), and 83 of the Maharashtra Prohibition Act, 1949, on the allegation that it was used for transportation of contraband liquor. The petitioner was prosecuted in S.C.C. No.287/2017, but was acquitted by the 2nd Judicial Magistrate First Class, Gadchiroli, vide order dated 07/11/2017. Despite the acquittal, the vehicle was not released to the petitioner. The respondents raised a preliminary objection that the writ petition was not maintainable because the petitioner had an alternative remedy of appeal under Section 137 of the Maharashtra Prohibition Act. The petitioner argued that the impugned order was passed without jurisdiction and suffered from manifest illegality, making the writ petition maintainable. The court examined the provisions of the Maharashtra Prohibition Act, particularly Sections 98(2) and 99, and found that the authorized officer had not complied with the mandatory requirement of giving an opportunity of hearing to the petitioner before passing the confiscation order. The court held that the order was passed without jurisdiction and was a nullity. Consequently, the court allowed the writ petition, quashed the impugned order, and directed the respondents to release the vehicle to the petitioner forthwith.
Headnote
A) Constitutional Law - Maintainability of Writ Petition - Alternative Remedy - Writ petition under Article 227 is maintainable despite existence of alternative remedy if the impugned order is passed without jurisdiction or suffers from manifest illegality - The court held that when an order is passed without jurisdiction, the availability of an alternative remedy does not bar the writ jurisdiction (Paras 2-4). B) Criminal Procedure - Confiscation of Vehicle - Jurisdiction - Sections 98(2), 99, 137 Maharashtra Prohibition Act, 1949 - The authorized officer under Section 98(2) has no jurisdiction to pass an order of confiscation of a vehicle without first complying with the requirement of giving an opportunity of hearing to the person from whom the vehicle was seized - The court held that the impugned order of confiscation was passed without jurisdiction and is a nullity (Paras 3-5). C) Criminal Procedure - Release of Vehicle upon Acquittal - Section 98(2) Maharashtra Prohibition Act, 1949 - Upon acquittal of the accused in the criminal case, the vehicle seized in connection with the offence must be released to the person from whose custody it was seized - The court held that the petitioner is entitled to release of the vehicle following his acquittal (Paras 3, 5).
Issue of Consideration
Whether a writ petition under Article 227 of the Constitution of India is maintainable when an alternative remedy of appeal under Section 137 of the Maharashtra Prohibition Act is available, and whether the impugned order of confiscation of the vehicle was passed without jurisdiction.
Final Decision
The court allowed the writ petition, quashed the impugned order of confiscation, and directed the respondents to release the vehicle to the petitioner forthwith.
Law Points
- Writ petition maintainable despite alternative remedy when order passed without jurisdiction
- manifest illegality
- Confiscation order under Maharashtra Prohibition Act requires compliance with Section 98(2) and Section 99
- Release of vehicle upon acquittal under Section 98(2) is mandatory
- Article 227 of Constitution of India
