Mustafa & Another vs State Of U.P. & Another
2017 Latest Caselaw 6010 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 6728 of 2017
 

 
Petitioner :- Mustafa & Another
 
Respondent :- State Of U.P. & Another
 
Counsel for Petitioner :- Sushil Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 

 
Hon'ble Mrs. Vijay Lakshmi,J.

This writ petition under Article 227 of the Constitution of India has been filed with prayer to set aside the impugned order dated 3.8.2017 passed by learned Sessions Judge, Muzaffar Nagar in Appeal No. 139 A of 2017 preferred against the order dated 12.11.2016 passed by the District Magistrate, Muzaffar Nagar in Case No. 3202 of 2015 under Section 72 of Excise Act, Police Station Jansath, District Muzaffar Nagar whereby the vehicle Truck Eicher No. HR 45A 6075 has been confiscated in favour of the State due to its involvement in Case Crime No. 750 of 2015, under Section 60/72 of Excise Act and under Sections 420, 467, 468 and 471 I.P.C., Police Station Jansath, district Muzaffar Nagar. The learned lower appellate court has affirmed the order of learned District Magistrate and has dismissed the appeal. Aggrieved by both the orders, the petitioners are before this Court.

Heard learned counsel for the petitioners and learned A.G.A. appearing on behalf of both the respondents. Perused the record.

It is contended by learned counsel for the petitioners that the petitioners who are the owners of confiscated vehicles, are innocent. They have never transported any illicit liquor in their vehicles in question, they are not named in the F.I.R., all the accused persons, who are named in the F.I.R. have been enlarged on bail. It is further contended that at the time when the vehicles in question were seized by the District Magistrate, the petitioners had moved applications with prayer to release the vehicles and their applications were allowed vide order dated 11.2.2016 and 15.3.2016 by the Chief Judicial Magistrate, Muzaffar Nagar, relying on the law as laid down by Hon'ble Apex Court in Sundarbhai Ambalal Desai Vs. State of Gujrat; 2003(1) JIC 615 (SC). However, the police, later on, referred the matter to the higher authorities for confiscation of the vehicles in question and on the recommendation of S.S.P., Muzaffarnagar, the District Magistrate initiated the proceeding of confiscation of the vehicles under Section 72 of the U.P. Excise Act and issued notice to both the petitioners on 17.12.2015 asking them to submit their objections till 5.1.2016 in the office of District Magistrate. The petitioner no. 1 submitted his reply on 23.9.2016. However, without further waiting for the objection of petitioner no. 2, the District Magistrate, Muzaffarnagar passed the impugned order on 12.11.2016 regarding confiscation of the vehicles with a further direction to the police to advertise for the auction of the vehicles in questions. The petitioners were also given an option to pay the market value of the vehicles in lieu of confiscation.

Aggrieved by the aforesaid impugned order dated 12.11.2016, the petitioners preferred an appeal before the Sessions Judge, Muzaffarnagar which was dismissed by the learned Sessions Judge by the impugned order dated 3.8.2017.

Learned counsel for the petitioners has further contended that the trial of the aforesaid case is pending and there is every likelihood of the acquittal of the accused persons and if the accused persons will be acquitted, the entire process regarding confiscation of the vehicles will become an exercise in futile, therefore, the impugned orders are liable to be quashed. It is further contended that the petitioners undertake that they will produce the vehicles in question before the court concerned, in case it is required, but as the amount fixed arbitrarily by the District Magistrate, is highly excessive, the petitioners are unable to pay such amount. On the aforesaid grounds it has been prayed that the petition be allowed and the impugned orders be quashed.

Learned A.G.A. has opposed the petition by contending that there is no illegality in the impugned order dated 12.11.2016 passed by the District Magistrate, Muzaffar Nagar. The petitioners were granted sufficient time by learned District Magistrate to submit objections by 5.1.2016. The petitioner no. 1 submitted reply on 23.9.2016 but petitioner no. 2 did not submit any objection even after expiry of such a long period, then the District Magistrate passed the order dated 12.11.2016. Hence it can not be said that the petitioners were not granted time to file objection. Learned A.G.A. has further contended that the law laid down by Hon'ble Apex Court in Sundarbhai Ambalal Desai's case is not applicable to the present case as the vehicles in question have already been confiscated by the District Magistrate under Section 72 of the U.P. Excise Act, therefore, the provisions of Criminal Procedure code regarding release of vehicle as enacted under Section 457 Cr.P.C. will not be applicable in the present case.

Considered the rival submissions made by learned counsel for the parties and perused the record.

The facts giving rise to this petition can briefly be stated as under :-

A first information report was lodged against four accused persons on 17.11.2015 alleging that on 17.11.2015 when some police personnel were on their routine patrol duty, they received an information about the illegal transportation of liquor. They immediately rushed to the spot and arrested the accused persons. Two vehicles, one Eicher truck and a Santro car were found on the spot containing English liquor. The petitioners are the owners of Eicher truck and Santro car. The vehicles were seized by the police and were kept at police station and criminal case was registered against the accused persons. Applications under Section 457 Cr.P.C. were filed by the petitioners before the Chief Judicial Magistrate, Muzaffar Nagar for the release of their vehicles, which were allowed vide orders dated 11.2.2016 and 15.3.2016 and the vehicles were released. Meanwhile, the S.S.P., Muzaffar Nagar recommended the proceedings for confiscation of the vehicles, in pursuance of which the District Magistrate registered a case under Section 72 of U.P. Excise Act on 17.12.2015. Notices were issued to both the petitioners and ultimately the vehicles were confiscated under Section 72 of U.P. Excise Act by the impugned order dated 12.11.2016 by the District Magistrate, directing the S.H.O., Jansath to start the procedure for public auction of the aforesaid vehicles. The petitioner, at the same time, were given the option to deposit the current market value of the seized vehicles in lieu of confiscation.

The appeal filed against the aforesaid order was dismissed by the learned Sessions Judge, Muzaffar Nagar.

Learned counsel for the petitioners has vehemently contended that the proceedings of the criminal case are still pending before the court of C.J.M., Muzaffar Nagar. The vehicles in question had already been released in favour of the petitioners and were running on roads at the time of passing of the impugned order and as a judicial order passed by a competent court under Section 457 Cr.P.C. was already in force, the impugned order passed by the learned District Magistrate would be of no binding effect but the learned appellate court without keeping in view this aspect of the matter, wrongly dismissed the appeal.

I do not find any substance in the arguments advanced by learned counsel for the petitioners in view of the legal position as provided under Section 5 of Code of Criminal Procedure which reads as under :-

"5. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

The U.P. Excise Act is a special and local Act within the meaning as used in Section 5 of Cr.P.C. Section 72 of U.P. Excise Act prescribes a special forum or procedure for dealing with the property seized under the Excise Act and confers power or jurisdiction on the District Magistrate to deal with the same. In view of clear provisions contained in Section 5 of Criminal Procedure Code, the provisions contained in the Code with regard to disposal of property, can be used only to the extent, they are not inconsistent with Section 72 of U.P. Excise Act. Therefore the proceeding under Section 72 of U.P. Excise Act will prevail and Section 457 of Cr.P.C. will have no application after passing of the order of confiscation under Section 72 of U.P. Excise Act. The situation would have been different had the proceedings under Section 72 of U.P. Excise Act been still pending before the District Magistrate, but as the vehicles have already been confiscated vide impugned order, the District Magistrate is seized of the matter and, therefore, the order passed by the Chief Judicial Magistrate regarding the release of the vehicles will have to give way to the order passed by the District Magistrate. The lower appellate court has rightly dismissed the appeal on the aforesaid grounds relying on the law laid down by Hon'ble Apex Court in the case of NCT of Delhi Vs. Narendra passed in Criminal Appeal No. 25 of 2014 decided on 6.1.2014; AIR 2014 SC SUPP. 1864. By the impugned order the petitioners have been given an option to pay the market value of the vehicles in question in lieu of confiscation of their vehicles. Therefore, it is open for them to get their vehicles released after payment of such amount.

The present petition being devoid of merit is liable to be dismissed and is accordingly dismissed.

Order Date :- 30.10.2017

S.B.