The provisions contained under sub-sections (1) to (4) of Section 72 of the U.P. Excise Act, 1910, denude the Magistrate of his power to pass any order under Section 457 of the Code of Criminal Procedure for release of anything seized in connection with an offence purporting to have been committed under the Excise Act.

JUDGMENT :

1. Heard Sri Rajesh Kumar Tiwari, learned counsel for the applicant and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite party.

2. The present application under Section 482 Cr.P.C. has been filed seeking to quash the order dated 08.09.2020 passed by Additional District & Sessions Judge/F.T.C.1, Deoria in Criminal Revision No. 20 of 2020 (Vikki Vs. State of U.P.) and the order dated 17.1.2020 passed by the Chief Judicial Magistrate, Court No. 17, Deoria in Misc. Application No. 36 of 2020 arising out of Case Crime No. 924 of 2019 under Section 60/63 of the U.P. Excise Act, 1910, the Excise Act and 473 IPC, Police Station Kotwali, District Deoria.

3. The facts as reflected from the records of the case indicate that an application was filed by the applicant herein before the court of Chief Judicial Magistrate seeking release of vehicle bearing Registration No. H.R.12-AJ-7586, Engine No. D13 A5636506 and Chassis No. MA3NYFB1SKE553161 contending that no recovery of any intoxicant had been made from the vehicle and that the applicant had possessed all the valid papers relating to the vehicle and accordingly a prayer was made for release of the vehicle. The Magistrate rejected the application as being not maintainable by referring to a Division Bench judgment of this Court in Virendra Gupta Vs. State of U.P., 2019 (108) ACC 438, for the proposition that the provisions contained under sub-sections (1) to (4) of Section 72 of the U.P. Excise Act, 1910, clearly denude the Magistrate of his power to pass any order under Section 457 of the Code of Criminal Procedure, the Code for release of anything seized in connection with an offence purporting to have been committed under the Excise Act.

4. Aggrieved against the order, the applicant preferred a revision being Criminal Revision No. 20 of 2020. The revision was argued on the jurisdictional point as to whether the Magistrate had the power and jurisdiction to release the vehicle when the confiscation proceedings under Section 72 of the Act were pending before the Collector, and after referring to the facts and the material on record and also the law laid down in the case of Virendra Gupta (supra), the revision was rejected

5. Learned counsel for the applicant has sought to assail the orders of the courts below by contending that mere pendency of confiscation proceedings before the Collector under Section 72 of the Excise Act shall not operate as a bar against release of a vehicle seized under Section 60 of the Excise Act. In support of his contention, reliance was placed upon the judgments in the case of Nand Vs. State of U.P., 1997 (1) AWC 41, and Rajiv Kumar Singh Vs. State of U.P. and others, 2017 (5) ADJ 351.

6. Learned A.G.A.I submits that in terms of the scheme of the Act, the release of any property which is subject matter of confiscation proceedings under Section 72 of the Excise Act before the Collector cannot be sought in terms of the powers exerciseable under the Code. To support his submission, he has placed reliance upon the judgment in the case of Ved Prakash Vs. State of U.P., 1982 19 ACC 183, and also the Division Bench judgment in the case of Virendra Gupta (supra).

7. In order to appreciate the rival contentions the provisions as contained under Sections 5, 451, 452 and 457 of the Code of Criminal Procedure may be adverted to, and the same are as under :

“5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of