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IN THE HIGH COURT OF ALLAHABAD
Rajeev Misra, J.
Chandra Pal – Applicant
Versus
State of U.P. and Another – Respondents
Application U/S 482 No. 1325 of 2021
Decided On : 12-02-2021
U.P. Excise Act - Seized Vehicle - Sections 62, 63, 72 - The court discussed the provisions of the U.P. Excise Act, specifically Sections 72, 451, 452, and 457 of the Cr.P.C. The court highlighted the jurisdiction of the Magistrate to release a seized vehicle during pending confiscation proceedings under Section 72 of the U.P. Excise Act. The court emphasized the need for the Magistrate to decide the release application in light of the provisions of the Act and the Code, rather than relying solely on the judgment of the Apex Court in State (NCT of Delhi) Vs. Narender.
Fact of the Case:
The applicant sought release of a seized vehicle under Section 482 Cr.P.C. The vehicle was seized in connection with an incident involving the transportation of illicit liquor. The release application was rejected by the Magistrate and the Additional Sessions Judge, both relying on the judgment in State (NCT of Delhi) Vs. Narender.
Finding of the Court:
The court found that the lower courts erred in rejecting the release application without deciding their own jurisdiction under Section 457 Cr.P.C. to entertain the application. The court quashed the impugned orders and remitted the matter to the concerned Magistrate for fresh consideration.
Issues: The key issue was whether the lower courts erred in rejecting the release application without determining their jurisdiction under Section 457 Cr.P.C. in light of the pending confiscation proceedings under Section 72 of the U.P. Excise Act.
Ratio Decidendi: The court held that the lower courts should have decided the issue of their own jurisdiction to release the seized vehicle in light of the provisions of the U.P. Excise Act and the Cr.P.C., rather than relying solely on the judgment in State (NCT of Delhi) Vs. Narender.
Final Decision: The court allowed the application, quashed the impugned orders, and remitted the matter to the concerned Magistrate for fresh consideration.
JUDGMENT :
1. Heard Mr. Sunil Kumar Yadav, learned counsel for applicant and learned A.G.A. for State.
2. This application under Section 482 Cr.P.C. has been filed challenging order dated 18.09.2020 passed by Additional Chief Judicial Magistrate/Additional Civil Judge (Sr. Div.) Court No.3, Aligarh in Case Crime No. 338 of 2019 under Sections 62, 63, 72 U.P. Excise Act, Police Station-Akbarabad, District-Aligarh as well as order dated 31.10.2020 passed by Additional Sessions Judge/POCSO Act, Court No.02, Aligarh in Criminal Revision No. 136 of 2020 (Chandra Pal Vs. State of U.P.) under Sections-396, 397 Cr.P.C., arising out of order dated 18.9.2020, whereby above-mentioned criminal revision has been dismissed.
3. Record shows that in respect of an incident which occurred on 29.12.2021, an F.I.R. dated 29.12.2019 was lodged and was registered as Case Crime No.0338 of 2019 under Section 62, 63, 72 of U.P. Excise Act, Police Station-Akbarabad, District-Aligarh. In the aforesaid F.I.R., two unknown persons who were sitting in vehicle No. DL. 4 VB 8839 but fled away from spot were nominated as accused.
4. As per prosecution story as unfolded in above-mentioned F.I.R., it is alleged that police of concerned police station in routine check for ensuing peace laid check point near Bamba Pulia crossing to check vehicles. A Vehicle bearing registration number DL 4 VB 8839 of TATA Sumo Gold Make was detained for search and huge quantity of Indian made Foreign Liquor was recovered from aforesaid vehicle. However, driver and passenger of aforesaid vehicle managed to escape but the vehicle was seized.
5. Subsequently, applicant-Chandra Pal, registered owner of seized vehicle No. DL. 4 VB 8839 filed a release application seeking release of same. The release application was rejected by concerned Magistrate vide order date 18.09.2020. Magistrate concluded that Apex Court in State (NCT of Delhi) Vs. Narender 2014 (13) SCC 100 has observed that where confiscation proceedings (in this case under Delhi Excise Act) are pending then courts have no jurisdiction to direct release of seized vehicle.
6. Order dated 18.09.2020 passed by Magistrate was challenged by applicant by filing a criminal revision before Sessions Judge, Aligarh. Same was registered as Criminal Revision No.138 of 2020, (Chandrapal Vs. State of U.P.). This revision also came to be dismissed by Additional Sessions Judge/ POCSO Act Court No.2, Aligarh vide order dated 31.10.2020.
7. Additional Sessions Judge concluded that since proceedings under Section 72 of U.P. Excise Act, 1910 (hereinafter referred to as 'Act 1910') are pending, therefore no directions can be issued for release of disputed vehicle. Revisional court referred to Krishna Mohan Sharma Vs. State of U.P. 1999 (2) JIC 270 Alld, but observed that judgment therein has been rendered by a learned Single Judge. Reference was also made to the decision of Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujarat 2002 (10) SCC 283. However, revisional court observed that in aforesaid case Court has considered Sections 451, 452, 457 Cr.P.C and not the provisions of Act 1910. Revisional Court further referred to the Division Bench Judgment of this Court in Virendra Gupta Vs. State of U.P. 2019(6) ADJ 432 wherein law laid down in Ved Prakash Vs. State of U.P. 1982 A.W.C. 167 has been affirmed. It was held by division bench that during pendency of confiscation proceedings under section 72 of Act, 1910, Magistrate has no jurisdiction under Section 457 Cr. P. C. to direct release of vehicle seized under the provsisions of Act, 1910 However, irrespective of above, Revisional Court instead of deciding jurisdiction of criminal courts regarding release of seized vehicle under section 457 Cr.P.C. even during pendency of confiscation proceedings under section 72 of Act 1910 rejected the revision filed by applicant by placing reliance upon
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