Allahabad High Court
Muntazir vs State Of U.P. & Another on 7 December, 2017
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved.
Case :- APPLICATION U/S 482 No. - 30156 of 2017
Applicant :- Muntazir
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Jagdish Prasad Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Vijay Lakshmi,J.
The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the order dated 17.6.2017 passed by the A.C.J.M. Court No. 2, Muzaffar Nagar, in Case Crime No. 352 of 2017, under Section 420 I.P.C. and section 60 Excise Act, P.S. Charthawal, district Muzaffar Nagar, whereby the application moved by the applicant for release of his vehicle/ Tractor Trolley bearing Registration No. UP 11AP 4837 has been rejected. Prayer has also been made to quash the order dated 10.8.2017 passed by Sessions Judge, Muzaffar Nagar, in Criminal Revision No. 161 of 2017, Muntazir Vs. State of U.P. filed against the aforesaid order of learned A.C.J.M. rejecting the release application, has been confirmed by the learned revisional court.
Affidavits have been exchanged between the parties.
Heard learned counsel for the applicant and learned A.G.A. on behalf of opposite parties. Perused the records.
Learned counsel for the applicant has contended that the applicant is the registered owner of the tractor trolley involved in this case. The applicant is neither named in the FIR nor any recovery has been made from his tractor trolley. The police has falsely implicated the applicant in order to extract money from him. When the applicant denied to fulfill their demand, his tractor trolley was illegally seized by the police. The applicant moved a release application, which was rejected by learned Magistrate only on the ground that investigation was going on and the confiscation proceedings u/s 72 of U.P. Excise Act were pending before the District Magistrate, therefore, the vehicle cannot be released. The criminal revision filed against the order of the learned Magistrate was also dismissed on the same ground by the learned Sessions Judge, observing that as the confiscation proceedings are pending before the learned Magistrate, the vehicle in question cannot be released. Learned counsel has contended that the tractor trolley is standing in open yard in the police station since long and with the passage of time ultimately it will become junk. Reliance has been placed on the law laid by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujrat, AIR 2003 SC 638. Learned counsel has further submitted that the applicant is ready to comply with all the conditions, which the court will impose while releasing the vehicle. Undisputedly he is the rightful owner of the tractor trolley, therefore, the vehicle be released in his favour and both the impugned orders be quashed.
Learned AGA has opposed the application. In the counter affidavit filed by learned AGA it has been stated that the proceedings u/s 72 of the U.P. Excise Act are pending before the District Magistrate, Muzaffar Nagar, in which vide order dated 16.9.2017 a show cause notice has been issued to the applicant, therefore, the tractor trolley, which is involved in criminal case U/s 60 Excise Act and section 420 I.P.C. cannot be released.
In the rejoinder affidavit it has been stated that the notice has been served on the applicant and the applicant has also filed his reply to the notice but the proceedings are still pending because the hearing could not be completed on the date fixed before the learned District Magistrate.
Learned counsel for the applicant has contended that mere pendency of confiscation proceedings before the Collector u/s 72 of the U.P. Excise Act shall not operate as a bar against the release of vehicle seized u/s 60 of the U.P. Excise Act.
I have carefully gone through the relevant legal provisions and the judgments rendered by the Hon'ble Apex Court in Sunderbhai Ambalal Desai (supra) and by this court in various cases under the U.P. Excise Act.
The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai, AIR 2003 SC 638 (supra) in para 17 has held as under:-
" In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of application for return of such vehicles."
In Nand Vs. State of U.P., 1996 Law Suit (All) 423 this Court has observed that pendency of the confiscation proceedings under Section 72 of the U. P. Excise Act is not a bar for release of the vehicle which is required for the trial under Section 60 of the U. P. Excise Act. It has been clearly observed by this Court in para 7 that:-
" I think it is not proper to allow the truck to be damaged by remaining stationed at police station. Admittedly, the ownership of the truck is not disputed. The State of Uttar Pradesh does not claim its ownership. Therefore, I think it will be proper and in the larger interest of public as well as the revisionist that the revisionist gives a Bank guarantee of Rs. 2 lakhs before the C.J.M., Kanpur Dehat and files a bond that he shall be producing the truck as and when needed by the criminal courts or the District Magistrate, Kanpur Dehat, and he shall not make any changes nor any variation in the truck."
In Jai Prakash Vs. State of U.P., 1992 AWC 1744 this court has held that mere pendency of confiscation proceedings before the Collector is no bar to release the vehicle.
In Kamaljeet Singh Vs. State of U.P., 1986 U.P. Cri. Ruling 50 (Alld), the same view was taken by this court that pendency of confiscation proceedings shall not operate as bar against the release of vehicle seized u/s 60 of Excise Act.
As per the legal propositions mentioned above and keeping in view the fact that undisputedly the applicant is the registered owner of the seized vehicle, no purpose will be served in keeping the vehicle stationed at the police station in the open for a long period allowing it to be damaged with the passage of time.
In view of the above facts and circumstances of the case, the impugned orders are not sustainable in the eyes of law and require interference by this court.
Accordingly, the application u/s 482 Cr.P.C. is allowed, both the impugned orders are set aside and the case is remitted back to the concerned Magistrate to decide the release application afresh in the light of the aforesaid observations and the law as discussed above.
Order Date :-07.12.2017
Pcl
