Point of Law : Only remedy remains available to the applicant is to challenge the validity of confiscation proceeding conducted by the District Magistrate.

Headnote:
Excise Act – Section 60, 63, 72 – Criminal Case - Application for releasing his vehicle – Rejected - Applicant's vehicle on rent in month - Vehicle was run by the aforesaid persons till incident and when applicant inquired after two months from aforesaid persons/relatives regarding the vehicle, then matter came into the knowledge that the vehicle is being kept in police station - Since aforesaid persons are relatives of applicant, no suspicion arose and when matter came into the knowledge of the applicant, he started his effort to release vehicle - Vehicle was not used by applicant in alleged crime and has no concern with alleged persons- Applicant has also lodged an FIR against his relatives because they were not giving information about vehicle - Aforesaid relatives cheated to applicant and used applicants vehicle in said crime that was not in knowledge of applicant - Applicant is not involved in aforesaid crime and vehicle is in name of applicant and he is owner of vehicle - Applicant was ready to pay security before learned court imposed by court at the time of release of vehicle - Applicant has completed all the legal formalities regarding vehicle through documents which is annexure no. 6 to affidavit
Findingo of Court : applicant has filed rejoinder affidavit in which a simple prayer has been made to allow petition and no avernments have been made against Para 11 of Counter Affidavit and same has not been denied which discloses that in furtherance of confiscation, impugned vehicle has been auctioned - From perusal of both impugned order it transpires that when release application and revision against the rejection order of CJM were pending, impugned vehicle was under process of confiscation - -Learned counsel for applicant has further relied upon Chandrapal Vs. State of U.P., 2021 0 Supreme All 92 in which application u/s 482 Cr.P.C was allowed and matters were remitted back to concerned magistrate to decide first as to whether Civil Court had jurisdiction or not - In this case since no corpus is into existence for release hence this application has also become infructuous - Now only remedy remains available to the applicant is to challenge the validity of confiscation proceeding conducted by District Magistrate, Etah - Court is of conclusion that impugned order passed by learned CJM and learned revisional court is factually and legally correct - When impugned vehicle was under confiscation proceeding before district magistrate Etah, it was open to applicant to appear and contest there.
Result : Application is, accordingly, dismissed.

JUDGMENT :

1. Heard Sri Umesh Kumar, learned counsel for the applicant and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material available on record.

2. This application has been made by the accused -applicant to quash the order dated 19.07.2021 passed by Chief Judicial Magistrate, Etah, in criminal case no. 781 of 2020 and order dated 16.10.2021 passed by Learned Sessions Judge in criminal revision no.76 of 2021 rejecting the application of applicant for releasing his vehicle no. (U.P. 80 CT 3283), in case crime no. 594 of 2019, U/s 60, 63, 72 of U.P. Excise Act, Police Station Kotwali, District Etah.

3. In brief, facts of the case are that an FIR was lodged in case crime no. 594 of 2019, at Police Station Kotwali Dehat, U/s 60, 63, 72 of Excise Act, District Etah. A copy of the FIR dated 21.12.2019 has been filed as annexure no.1 to the affidavit. The applicant is not involved in the said crime and he never gave consent for the purpose of the alleged illegal work. The relatives use the vehicle of the applicant for own purposes.

4. The applicant filed an application for the release of his vehicle no. UP 80 CT 3283 on 4.8.2020 before the C.J.M., Etah which is in the custody of police station Kotwali Dehat, u/s 60, 63, 72 of Excise Act, District Etah. The application dated 4.8.2020 is annexure no.2 to the affidavit.

5. The learned C.J.M. rejected the applicant's application without considering the fact on 19.7.2021, the certified copy of the order has been filed herewith as annexure no. 3. The applicant filed criminal revision on 16.10.2021 in which he had disclosed the entire facts but the same was also rejected by Learned District and Sessions Judge on the same day.

6. The FIR was not lodged against the applicant Ajay Kumar but against Surendra Singh, Satish Chandra and Devendra Singh in case crime no. 367 of 2020, at police station Iglas, u/s 406, 452, 323, 504 of IPC., District Aligarh which is annexure no. 5 to the affidavit.

7. Devendra Singh, Surendra Singh and Satish Chand had taken the applicant's vehicle on rent in the month of august 2019. The vehicle was run by the aforesaid persons till the incident and when the applicant inquired after two months from the aforesaid persons/relatives regarding the vehicle, then matter came into the knowledge that the vehicle is being kept in police station Kotwali Dehat, Etah. Since the aforesaid persons are relatives of the applicant, no suspicion arose and when the matter came into the knowledge of the applicant, he started his effort to release the vehicle. The vehicle was not used by the applicant in the alleged crime and has no concern with the alleged persons. The applicant has also lodged an FIR against his relatives because they were not giving information about the vehicle. The aforesaid relatives cheated to the applicant and used the applicants vehicle in the said crime that was not in the knowledge of the applicant. The applicant is not involved in the aforesaid crime and the vehicle is in the name of the applicant and he is owner of the vehicle. The applicant was ready to pay the security before the learned court imposed by the court at the time of the release of vehicle. The applicant has completed all the legal formalities regarding the vehicle through the documents which is annexure no. 6 to the affidavit.

8. The learned court did not consider the facts and circumstances available on records and passed the impugned order in a routine manner without applying judicial mind. The vehicle of the applicant is confined since 21.12.2019 and is standing in worst position as such if it is not released, he will suffer irreparable loss and injury. The trial court ignoring all the facts and circumstances of the case, rejected the release application which is bad in the eyes of law. The learned court has passed the impugned order in mechanical way without perusing the record. Hence, the application be allowed and order of the CJM and the revisional Court be set