JUDGMENT :

1. Heard learned counsel for the petitioner and Shri Alok Tiwari, learned A.G.A. for respondent no. 1, 3 and 4 and has filed affidavit on their behalf which is taken on record.

Learned A.G.A. has also filed a personal affidavit on behalf of respondent no. 2 informant of the case which is taken on record.

2. Learned counsel for the petitioner submits that the petitioner is the sole proprietor of M/s Glorious Khushi Enterprises and the Tanker vehicle No. UP70JT8187 is registered in the name of the said firm. It is alleged in the recovery memo that on a tip received by the informant, vehicle of the petitioner i.e. tanker bearing No. UP70 JT 8187 was intercepted and driver of the tanker namely Ramesh and Azhar Ali were apprehended. They confessed their crime and further alleged that co-accused Ankit Sahu, Vakil Ahmad, Mukesh, Avinash and Rahul Kumar Rawat were also involved in the illicit sale-purchase of ATF who were coming behind in a Creta Car bearing No. UP78 GW 1792. The Creta Car was also intercepted and all the accused persons were arrested. The accused confessed that they steal ATF from airport and sell it in the open market after filling it in tanker. On inspecting the tanker bearing No. UP70 JT 8187, it was found that 8500 liters of ATF was filled in it which is in contravention of Aviation Turbine Fuel (Regulation and Marketing) Order 2001 and is an offence under Essential Commodities Act 1955. The vehicles were taken into custody and the co-accused persons were also arrested.

The recovery memo dated 07.06.2022 was prepared and consequently after permission of District Magistrate, Lucknow, a case was registered as case crime No. 186/2022, under Section 6A of Essential Commodities Act 1955 P.S. Banthara, District Lucknow against the above seven named accused persons.

The investigating officer after recording the statement of the accused persons under Section 161 Cr.P.C. submitted charge sheet against seven named accused persons in the F.I.R. A separate charge sheet has also been submitted against the petitioner and one another namely Fakir Mohammad (owner of creta car).

The court of Additional Collector/Additional District Magistrate (Civil Supplies), Lucknow passed an order dated 04.01.2022 under Essential Commodities Act 1955 confiscating the tanker of the petitioner and also the creta car belonging to owner of creta car.

3. Learned counsel for the petitioner further submits that the petitioner being the sole proprietor of the firm M/s Glorious Khushi Enterprises is the actual owner of the vehicle. Tax invoice of the vehicle and registration details of the tanker vehicle are on record. The petitioner purchased a tanker vehicle after getting it financed from SBI and is regularly paying the monthly installment. Bank statement of M/s Glorious Khushi Enterprises is on record. The vehicle is also ensured from New India Assurance Company on 02.03.2023 at the current value of Rs. 25,20,000/-. The insurance papers of the vehicle are also on record.

4. Learned counsel for the petitioner further submits that the petitioner is not named in the F.I.R. Confessional statement of the accused in the police custody has no evidentiary value. No statement of any of the accused under Section 164 Cr.P.C. has been recorded before the magistrate. The petitioner moved an application for release of the vehicle, however, his release application has been rejected in a mechanical manner and the Appellate Court while rejecting the appeal has also overlooked the express provision of Section 6A of Essential Commodities Act, 1955 (UP Amendment) whereby it is incumbent upon the District Collector to give an option to pay a fine in lieu of confiscation not exceeding market price at the date of seizure of the essential commodity sought to be carried.

In support of his contention, learned counsel for the petitioner has relied on the judgment of the Supreme Court in "Deputy Commissioner, Dakshina Kannada District Vs. Rudolph Fernandes, reported in (2000