IMPORTANT POINT
The Magistrate lacks jurisdiction to release property seized under the Uttar Pradesh Excise Act when confiscation proceedings are pending, as established by Section 72 of the Act.

JUDGMENT :

NALIN KUMAR SRIVASTAVA, J.

1. Heard Sri Rajiv Sisodia, learned counsel for the petitioner, learned A.G.A. for the State and perused the record.

2. Criminal Misc. Exemption Application is allowed.

3. The factual matrix of the matter may be summarized in the manner that two persons Pramit and Surendra were intercepted by the police while engaged in transporting 12 bottles of illegal liquor having a wrapper with remark of 'Royal Stag Whisky for sale in Haryana and Delhi' endorsed upon it in a Ford Ecosport Car bearing registration No. HR 06AH -2718 on 25.10.2023 at 18:30 P.M. Both the accused persons were arrested and the liquor was seized and sample was taken by the police on spot and memo of recovery and arrest was also prepared and F.I.R. was lodged under Sections 60, 63, 72 of the Uttar Pradesh Excise Act, 1910 (hereinafter referred to as the 'Act').

4. Subsequently an application for release of Car No. HR 06AH -2718 claiming himself to be the registered owner of the said vehicle was moved by one of the accused Pramit, but the said application was rejected by the Chief Judicial Magistrate, Shamli vide order dated 19.12.2023 in case crime no. 591 of 2023 simply on the ground that since the confiscation proceedings are reported to be pending before the District Magistrate, the Judicial Magistrate has got no jurisdiction to entertain the application for release of the vehicle seized under the provisions of the Excise Act in respect thereof confiscation proceedings are pending before the District Magistrate. The said order was challenged by way of criminal revision no. 1 of 2024 before the District Judge, Shamli which on the same analogy was rejected by the revisional court as well vide judgment and order dated 6.4.2024, feeling aggrieved to which the present petition under article 227 of the Constitution of India has been preferred.

5. It is submitted by learned counsel for the petitioner that the impugned orders passed by the learned Chief Judicial Magistrate as well as by the District Judge are bad in law and have been passed without taking into account the correct legal position into the matter.

Another point of argument is that the release application was rejected by the Chief Judicial Magistrate, Shamli solely on the ground that since confiscation proceedings are going on before the District Magistrate, the case property could not be released under Section 72 of the Act and the said view was legally not sustainable.

It has been further urged by the learned counsel for the petitioner that the aforesaid wrong legal notion was affirmed by the District & Sessions Judge in criminal revision no. 1 of 2024 and the impugned order passed by the learned Magistrate was upheld and the revision was dismissed.

Another limb of argument is that the legal position in this regard is very explicit according to which even if the confiscation proceedings are going on before the District Magistrate in a case under the Act, the release of property cannot be refused on this ground alone. The petitioner before the Court is the registered owner of the vehicle in question and the Magistrate was fully empowered to pass an order for release of the said vehicle under Section 457 of the Code of Criminal Procedure.

Reliance has been placed by the learned counsel for the petitioner upon the decisions of the Single Bench of this Court rendered in Chandra Pal Vs. State of Uttar Pradesh and Another (Application u/s 482 No. 1325 of 2021) decided on 12.2.2021 and Vikas Kumar Vs. State of U.P and Another (Application u/s 482 No. 33012 of 2019) decided on 22.1.2020 by a learned Single Judge of this Court.

6. Per contra, learned A.G.A. vehemently opposed the prayer made in the petition. It has been urged that in the facts and circumstances of the present case, the Magistrate was seized of his power to release the vehicle in question under Section 457 Cr.P.C. In support of his contention, he has placed reliance on the following decisions rendered by the coordinate