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2021 Supreme(All) 1179
IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
Manoj Kumar Jaiswal - Appellant
Versus
State Of U.P. Thru. Prin. Secy. Home. Lko & Others - Respondents
U/S 482/378/407 No.5635 of 2021
Decided on : 23-12-2021
Advocate Appeared:
For the Appellant : Anil Kumar Tripathi
Point of Law : The vehicle from which country-made liquor had been recovered and was seized could be released under Section 72 of the Excise Act, if the revisionist therein was ready to furnish the sureties before the Court concerned.
Headnote:
U.P. Excise Act, 1910 - Section 60/63 - Indian Penal Code, 1860 - Sections 419/420/467/468/471 - Criminal Procedure Code, - Section 482 - Constitution of India, 1950 - Article 226 - Cheating - Forgery of valuable security, will, etc - Release off Vehicle – Search and seized - A Criminal Case had been registered against the five persons including petitioner - Alleged by the police that on the basis of information given by the informer, a white coloured car (Swift) was seized with illicit liquor - Two persons were arrested from car and they informed of the name of the petitioner as owner of the car - Petitioner was arrested, thereafter - It has been submitted by learned counsel for the petitioner that petitioner is registered owner of Vehicle (Swift Desire) and his vehicle was not used. A false FIR was registered against him.
Finding of the court:
Criminal Revision arising out of an order of the Chief Judicial Magistrate, rejecting an application for release under Section 451 of Cr.P.C., on ground that confiscation proceedings under Section 72 of Excise Act were pending before the Collector - Petitioners application under Section 72 Sub-Section 2 has been allowed by Collector subject to condition of payment of 30% of market value of vehicle which has been seized carrying illicit liquor - Very language of Section 72 of Excise Act, and its Proviso, gives power to Collector to release vehicle to owner thereof by giving a bond to pay in lieu of its confiscation such fine at the Collector thinks appropriate but not exceeding on date of its seizure - It is apparent from language of Act that Collector can impose a fine up to the extent of entire market value of seized vehicle - In instant case obviously thirty percent of the value of seized car have been directed to be paid - Under Sub-Section (7) of Section 72, petitioner could have appealed against such an order as it has a statutory remedy provided under Act, which could not be bye passed - There is no abuse of process of Court as alleged by counsel for petitioner for this Court to exercise its inherent jurisdiction under Section 482 of Cr.P.C.
Result: Petition rejected.
JUDGMENT :
1. This petition has been filed with the following main prayer:-
“Wherefore, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to set aside the impugned judgment and order dated 17.12.2020 passed by the Uppr Collector/Upper District Magistrate, Hardoi in Case No. 01087/2020 (Computerized Case No. D202010330001087 (State vs. Anuj Jaiswal @ Lachchhu) U/s 72 of the U.P. Excise Act in the respect of the petitioner in the interest of justice.
It is further prayed that this Hon’ble Court may kindly be pleased to direct the respondents to release the Vehicle No. U.P. 32/HH-5155 in favour of the Petitioner without imposing any fine which has been illegally seized by the Police Authority of District Hardoi in Case Crime No. 398/2020 Under Section 60/63 of the U.P. Excise Act, 1910 & under Sections 419/420/467/468/471 IPC Police Station, Beniganj, District Hardoi, in the interest of justice.”
2. It has been submitted that a Criminal Case had been registered against the five persons including the petitioner by the police as Case Crime No. 398 of 2020 under Section 60/63 of the U.P. Excise Act, 1910 & under Sections 419, 420, 467, 468, 471 IPC Police Station Beniganj, District Hardoi. It was alleged by the police that on the basis of information given by the informer, a white coloured car (Swift) was seized with illicit liquor. Two persons were arrested from the car and they informed of the name of the petitioner as owner of the car. The petitioner was arrested, thereafter.
3. It has been submitted by the learned counsel for the petitioner that the petitioner is the registered owner of Vehicle No. UP 32 HH 5155 (Swift Desire) and his vehicle was not used. A false FIR was registered against him.
4. The petitioner was issued a show cause notice to which the petitioner replied that his car was not involved and has been seized improperly by the police. The petitioner appeared before the District Magistrate/Additional Collector, Hardoi in pursuance of the show cause notice and the reply submitted by him on 16.10.2020, praying for release of his vehicle under Section 72(2) of the U.P. Excise Act, 1910. The learned Additional District Magistrate asked for comments from the police and has accepted the application for release with the condition that the petitioner may deposit 30% of the value of the vehicle and also given an undertaking that he shall not sell of the vehicle or change its condition in any manner and would produce the same before the learned trial court as and when it is so summoned. The copy of the order was directed to be sent by the police to the Assistant Regional Transport Officer, Hardoi.
5. It is the case of the petitioner that the Additional District Magistrate exceeded his jurisdiction when he passed an order of depositing of 30% percent of the value of the car. It has been submitted that in view of the law settled by a Co-ordinate Bench of this Court in Criminal Revision No. 2177 of 2018, 'Devendra Gupta vs. State of U.P. and others decided on 31.08.2018, and in Criminal Revision No. 1568 of 2018, 'Rajiv Kumar Singh vs. State of U.P. and others decided on 23.11.2016. The District Magistrate should have directed the release of the vehicle by taking Bank Guarantee instead of asking for 30% of the value of the vehicle.
6. It has been submitted by the learned counsel for the petitioner that he had earlier approached this Court by filing a writ petition under Article 226 of the Constitution of India, namely, Writ Petition No. 23997 (MB) of 2021, 'Manoj Kumar Jaiswal vs. State of U.P. and Anothers'. This Court had directed the petitioner to avail the remedy as available to him under law and dismissed the writ petition as withdrawn.
7. Sri S. P. Tiwari, learned AGA for the State has raised a preliminary objection regarding the maintainability of this petition under Section 482 of the Cr.P.C. by referring to Section 72 (2) of the U.P. Excise Act, and thereafter, Sub-Section (7) of the same Section
