Virendra Gupta vs State Of U.P.
2018 Latest Caselaw 2262 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 53							     Reserved
 
                                                                                                   A.F.R.
 
Case :- CRIMINAL REVISION No. - 2177 of 2018
 

 
Revisionist :- Virendra Gupta
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Amit Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. This Criminal Revision has been preferred from an order of the learned Chief Judicial Magistrate, Mau, dated 13.06.2018 rejecting an application for release of a Bolero MUV under Section 451(1) of the Act, seized in connection with Case Crime no.50 of 2018, under Sections 60, 63, 72 of the U.P. Excise Act, and Sections 272, 273, 419, 420, 467, 468, 471 IPC, Police Station Doharighat, District Mau.

2. The revisionist is admittedly the registered owner of a Bolero MUV bearing registration no. UP 53 AF 2145. The aforesaid vehicle is hereinafter referred to as the vehicle. The vehicle was seized by the police on 01.03.2018 under circumstances that the police received information from a secret informer that at the brick kiln of a certain Kripa Shankar Rai, illegal country-made adulterated liquor was being brewed and that a Bolero MUV was parked there, with some ready liquor that would soon be ferried away to some place for sale. Acting on the aforesaid tip off, the police party raided the brick kiln aforesaid, and, found the driver seated in the vehicle parked at the brick kiln with its engine idling. The police party are said to have in a swift action surrounded the vehicle, in consequence whereof the driver and the other man on board escaped but two others who were loading ready liquor onto the vehicle, were arrested. The aforesaid persons revealed their names to be Mata Deen Yadav and Pankaj Gupta. The vehicle was also seized besides the liquor, as claimed by the police.

3. The revisionist applied to have the vehicle released to the Chief Judicial Magistrate, Mau, who rejected application for release on ground that since confiscation proceeding in relation to the vehicle under Section 72(2) of the U.P. Excise Act were in progress, it is not appropriate in the interest of justice to release the vehicle in favour of the revisionist.

4. Learned counsel for the revisionist has pointed out that the revisionist is the registered owner of the vehicle. He was also implicated in the crime falsely but after investigation, a charge sheet has been filed against Mata Deen Yadav and Pankaj Gupta, not against him.

5. It is urged that the police have falsely implicated the revisionist and that fact stands vindicated by the revisionist not being found involved during investigation. He submits, therefore, that the story about the vehicle of which he is the registered owner being involved is patently false. The vehicle is now parked at the Police Station since 01.03.2018 and is deteriorating by the day due to disuse, the same being not employed for any purpose. It is argued that the view taken by the Magistrate that pending confiscation proceedings before the Collector under Section 72(2) of the U.P. Excise Act, it is not appropriate to release the vehicle is manifestly illegal. The issue regarding the authority to release a vehicle relating to which confiscation proceedings are pending before the Collector under the Excise Act, pending investigation or trial by the Magistrate for an offence under the said Act, based on the same facts that have led to initiation of confiscation proceedings, would be shortly addressed.

6. The general law relating to release of vehicles seized in connection with a crime pending investigation or trial by the Magistrate, in the most universal of its dimension has been laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283. In the said decision of their Lordships the issue of release of vehicles seized in connection with crimes and parked at police stations has been dealt with and answered thus:

"17. 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 applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then the insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."

7. The issue where confiscation proceedings in relation to a vehicle are pending under Section 72 of the Excise Act on the basis of a crime registered under the said Act, the Magistrate has jurisdiction under Section 451 Cr.P.C. to release a seized vehicle pending investigation or trial notwithstanding the pendency of confiscation proceedings before the Collector was dealt with by this Court in Nand vs. State of U.P., 1997 (1) AWC 41, where it was held:

"7. 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."

(Emphasis by Court)

8. Following the reasoning in the said decision, this Court remanded to the Magistrate for decision afresh a release application where the stand taken by the State was that pending confiscation proceedings before the Collector under Section 72 of the U.P. Excise Act, the vehicle involved in a case under Section 60 of the said Act in custody of the police should not be released under section 451 Cr.P.C. by the Magistrate. Resolving the issue this Court in Rajiv Kumar Singh vs. State of U.P. and others, 2017 (5) ADJ 351 held:

"9. As per the legal propositions aforesaid mentioned, admittedly the revisionist-applicant claimed himself to be the registered owner of the seized vehicle. It also transpires that the F.I.R. was lodged against unknown person, 102 bottle of country made wine has been recovered from the vehicle but no person was arrested by the police. During investigation name of the revisionist came into the light by the police concerned and the revisionist has been bailed out by the Court concerned. It is important to mention here that till the disposal of the application of the revisionist no any such proceedings was pending before the District Magistrate. It has also contended by the learned Counsel for the revisionist that proceedings under section 72 of the Excise Act has been started after the rejection of the application of the release of the vehicle of the revisionist. It is also the submission of the learned Counsel for the revisionist that revisionist is ready to furnish the sureties before the Court concerned.

10. Under such facts and circumstances, I am of the view that it is not proper to allow the vehicle to be damaged by keeping stationed at police station because admittedly the ownership of the vehicle is not in dispute. Neither State of U.P. claimed his ownership over the vehicle. Therefore, I conclude that the impugned order is not sustainable in the eye of law. Its requires interference, the impugned order dated 27.2.2016 is set aside and the case is remanded back to the concerned Magistrate to dispose of it as per law laid down as above.

11. Accordingly, the revision is allowed and order impugned 27.2.2016 is set aside."

9. In each of the decisions above referred though this Court was concerned with a case where the Magistrate was asked to exercise powers under Section 451 or 457 of the Code of Criminal Procedure and hereinafter referred to as the ''Code', this Court went by the general principles governing release of vehicles seized in connection with criminal cases by the police and directed release pending investigation or trial or favoured such a course of action while remanding the matter to the Magistrate. On principle again, generally favoured by their Lordships of the Supreme Court that vehicles seized in connection with a crime should not be left to deteriorate at the police station, and, should be expeditiously released, so that in cases where under the law, in connection whereof the vehicle has been seized is confiscated to the State, the value and worth of it may not be lost. The decision of their Lordships in Sundarbhai Ambalal Desai (supra) is the most eloquent expression of this view.

10. A careful scrutiny of the decision of their Lordships in Sundarbhai Ambalal Desai (supra) clearly indicates that the decision is an authority about the general law regarding release of vehicles seized in connection with any criminal case, but the same does not answer the issue whether in a case where there are special provisions under a local or special Act, like the U.P. Excise Act, relating to seizure and confiscation of vehicles, the powers under Section 451 or for that matter under Section 457, would still be available with the Magistrate pending confiscation proceedings under the special or the local law. In fact, the decision of their Lordships in Sundarbhai Ambalal Desai (supra) arose in the context of a challenge to an order of police remand for the petitioners granted to the prosecuting agency, where the petitioners were police personnel involved in offences punishable under Sections 429, 420, 465, 468, 477A and 114 IPC. The allegations against them were that while working at different police stations, they had committed offences over a period of time involving replacement of valuable articles retained as case property by other spurious articles, misappropriation of money also seized in connection with cases, unauthorized auction of property seized and kept at the police station, pending investigation or trial. In short, the offences that engaged the attention of their Lordships were all offence to which the Code, including the provisions of Sections 451 and 457 wholesomely applied.

11. There was no issue that fell for consideration about the effect of a special statute governing the powers of the Magistrate under Section 451 or 457 of the Code to release case property where, under the special statute, there were special provisions for the confiscation and release of seized goods, including vehicles. This question was answered by this Court in Ved Prakash vs. State of U.P., 1982 AWC 167 All. The case arose on a revision to this Court from an order of the Judicial Magistrate rejecting an application for release of a car under Section 457 of the Act that was apprehended while transporting liquor in violation of the U.P. Excise Act. Proceedings under Section 72 of the U.P. Excise Act, and, hereinafter referred to as the Act, were pending before the Collector. In the background of the said facts, it was held by this Court that the Magistrate had no jurisdiction before a decision of the criminal case arising out of an apprehension of a vehicle carrying liquor in contravention of the law, to order release under Section 457 of the Act, inasmuch as, the special provisions of the Act that was a local law within the meaning of Section 5 Cr.P.C., would prevail over the provisions of the Code, denuding the Magistrate of his jurisdiction under Section 457 of the Act. It was held in Ved Prakash (supra) thus:

"5. Learned Counsel for the applicant urged that even accepting that the Collector has complete powers to deal with the property seized in connection with the commission of an offence under the U.P. Excise Act, the power of the Magistrate, before whom the prosecution is pending, is not taken away and if the Magistrate exercises his jurisdiction to pass an order under section 457 CrPC it will prevail. In other words the argument is that the jurisdiction of the Magistrate under Section 457 CrPC shall override the jurisdiction conferred on the Collector under section 72 of the U.P. Excise Act. The argument fails to impress me.

6. Section 5 of the Code of Criminal Procedure reads as follows:

"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 inforce."

7. There can be no controversy about the fact that the U.P. Excise Act is a "local law" within the meaning of that expression as used in Section 5 of the Criminal Procedure Code. Section 72 of that Act prescribes a special form of procedure for dealing with the property seized under the Excise Act and confers power or jurisdiction on the Magistrate to deal with the same. In view of the clear provisions contained in Section 5 of the Criminal Procedure Code, the provision contained therein regarding the disposal of property, can be used only to the extent they are not inconsistent with section 72 of the U.P. Excise Act. Sub-section (4)(c) of Section 72 says that if anything is sold under Sub-section (3) the sale proceeds shall be disposed of in accordance with such order as the Magistrate trying the case may choose to pass at the end. Sub-section (8) provides that where the prosecution is instituted for the offence in relation to which such confiscation was ordered, the thing or animal shall, subject to the provisions of Sub-section (4), be disposed of in accordance with the order of the Court. It would mean that if the article in question is sold by the Collector under sub-section (3), then the court seized of the criminal case shall have jurisdiction to pass orders with respect to the sale proceeds only. If, however, the Collector has merely ordered confiscation under sub-section (1) and the sale of the property has not taken place, the Magistrate will also have jurisdiction, at the end of the trial, to pass orders regarding the disposal of the property and, despite the order of confiscation by the Collector, the property shall be handed over to such party as may be directed by the Court.

8. There can be yet another situation in which the order of the Magistrate will prevail. It will be where the criminal case is disposed of by the court before the Collector is able to pass final orders under sub-section (1) of Section 72. In such a case, in my opinion, the court shall have the jurisdiction to pass such orders regarding the disposal of property as it may deem fit and, thereafter, the Collector shall have no jurisdiction to further deal with the property.

9. It may be argued that since the words used in sub-section (8) "where a prosecution is instituted for the offence in relation to which such confiscation was ordered" indicate that sub-section (8) shall come into play only after the confiscation has been ordered. To my mind, however, it cannot be so. If even after the confiscation it is the order of the Court which shall be decisive regarding the custody or disposal, where is the sense in continuing proceedings for confiscation after final orders are passed by the court, including orders regarding custody and disposal of property. Sub-section (8) has been couched in the existing language only because the legislature thought that the proceedings before the Collector being of summary nature, he shall always be able to finalise the same before the court is able to decide the criminal case."

12. However, discordant opinions have been expressed by the learned Judges of this Court over a long span of time, some in cases under the Act vis-à-vis the powers of release available to the court under Section 451/ 457 of the Code, and, some under provisions of other statutes, that are pari materia to Section 72 of the Act. In Mohd. Hanif vs. State of U.P., 1984 A.Cr.R. 23, an application seeking release of a truck that was seized in connection with an offence under the Essential Commodities Act was rejected where confiscation proceedings under Section 6-A of the said Act were pending before the Collector. The application aforesaid made for release of the truck to the Special Judge by whom the offence under the Essential Commodities Act was cognizable was rejected on ground that proceedings for confiscation of the truck and an application for its release were all pending before the Collector. A further application for release to the Special Judge was rejected on ground that once an application was pending before the Collector, it would be appropriate for the Collector to pass orders, rather than the Special Judge. On a combined challenge to said orders before this Court through an application under Section 482 Cr.P.C, it was held:

"2. I have heard the learned Counsel for the applicant as also for the State. Admittedly the truck was seized along with certain essential commodities which were loaded thereon. The proceedings for confiscation of essential commodities as also for the truck are pending before the Collector. These proceedings are under Section 6-A of the Essential Commodities Act. According to the procedure laid down the owner or the person concerned will be given an opportunity to show cause before confiscation. This would be under Section 6-B of the said Act. Thereafter an appeal is provided in Section 6-C of the said Act which earlier lay before the judicial authority appointed by the State Government in that behalf but by an amendment of 1982 such appeal now lies to the State Government. The contention on behalf of the State is that the applicant should pursue his remedy before the Collector and if he feels aggrieved by the order passed he can prefer an appeal under Section 6-C. It has also been contended on behalf of the State that Section 6-E of the said Act bars the jurisdiction of any other court or Tribunal in the matter. The counsel for the petitioner, however, maintains that Section 6-E does not contemplate any proceedings about any truck or other vehicle seized in connection with transport of any essential commodity. Section 6-E deals with essential commodities only whereas Section 6-A refers both to essential commodities and the vehicle etc., used in carrying such essential commodity. The difference in the phraseology of the two sections, namely, 6-A and 6-E is material and meaning has to be given to the different terminology used in these two sections. If, therefore, Section 6-A speaks both of essential commodities and vehicle or animal etc., but Section 6-E does not speak of vehicle or animal etc. used for carrying essential commodity then it cannot be said that Section 6-E bars the jurisdiction of any court otherwise competent to pass suitable orders with regard to the release of the vehicle. In a way, the learned Special Judge has also agreed with this interpretation but has maintained that as proceedings for confiscation and release of truck are already pending before the Collector it would be appropriate that the matter is decided by the Collector himself and for this reason the learned Special Judge has refused to exercise the Jurisdiction under Section 451 or 457 of the Code of Criminal Procedure.

3. It has not been denied that the instant case about contravention of the provisions of the Essential Commodities Act is to be heard and decided by the Special Judge. That being so the Special Judge is the court competent to decide the matter. Section 451 of the Code of Criminal Procedure gives power to a court to pass appropriate orders about the interim custody of any property produced before the court in connection with a trial or inquiry. Since a charge-sheet has not yet been submitted and the case property including the vehicle has not yet been produced before that court, it may be legitimately said that Section 451 CrPC has no application to the matter. Section 457 CrPC is another provision giving power to the court concerned to pass appropriate orders in respect of the property seized and reported by the police. It is true that the property is not such about which no further action for confiscation or release etc. is to be taken or about which any final report in the case itself had been made and the property might be lying undisposed of without any appropriate order but all the same the property has not yet been produced before a criminal court within the meaning of Section 457 CrPC. It may be produced in due course. The term " property not produced before the criminal court " denotes not only the property which is seized but finally withheld from being produced before the court but also the property which though seized has not yet been produced before the court and is in due course likely to be produced in the case. Support is lent to this contention by two decisions; one of this Court and the other of the Supreme Court, namely, Ajai Singh v. Nathi Lal, 1978 AWC 225 = 1978 ACrR 140 and Ram Prakash Sharma v. State of Haryana, 1978 CriLJ 1120."

13. Again, in Jagat Singh vs. State of U.P., 1991 (15) ACR 560, which was a case where the Magistrate had refused to release a car seized in connection with an offence under Section 60 of the Act in a case pending before him (but releasing a truck that was involved in the same offence) that was approved in revision by the Sessions Judge, this Court in challenge to the said orders through an application under Section 482 Cr.P.C. held thus:

"............ It appears that the learned Magistrate applied a different standard while rejecting the application for release of the Maruti Van which too was involved in the same crime and if the same was also allowed to remain in the police station it was also likely to be ruined. The reason for not releasing the vehicle in question by the learned "courts below" was that it was a case property and the witnesses may need the same for identifying in the proceedings. The learned Counsel for the applicant states that till date, no case has been initiated before the court. About seven months are over, nothing has been done in the case and the vehicle is standing at the police station getting rusted and has already become unserviceable for lack of care of the vehicle. The learned Counsel for the applicant submits that his client is willing to file an undertaking before the court below to produce the vehicle in question whenever needed before the court below or Investigation Officer, when so directed. He shall not transfer the vehicle for the period of next four years without permission of the court. He shall not change the nature and appearance of the vehicle during the said period. In the circumstances of the case, I consider that no useful purpose would be served to keep the vehicle lying at the police station. The investigation would not suffer if the vehicle is available at the time of investigation and in the prosecution if needed in the same condition. ..........."

14. The decisions in Jagat Singh (supra) was pressed into service by the learned counsel for the applicant to say that it has been the approach of this Court to avoid deterioration of vehicles detained in police custody, even in cases under Section 60 of the Act, where confiscation proceedings are pending, avoiding technicalities of jurisdiction between the Magistrate exercising powers under Section 451/ 457 Cr.P.C. and the Collector under Section 72 of the Act. A reading of the decision in Jagat Singh (supra) shows that the point of jurisdiction involved in the case under the Act where confiscation proceedings under Section 72 are pending was neither raised or decided; it passed sub silentio. In the opinion of this Court Jagat Singh (supra) is not an authority for the point canvassed by the learned counsel for the revisionist.

15. Further reliance has been placed on a decision of a learned Single Judge of this Court in Jai Prakash Sharma vs. State of U.P., 1992 AWC 1744 All, where also an application for the release of a truck intercepted with a cargo of illicit liquor was rejected by the Magistrate in connection with the crime registered under Section 60 of the Act as proceedings under Section 72 were in progress before the Collector, this Court on a revision from the order of the Magistrate held:

"5. Heard the learned Counsel for the parties and perused the record. Truck No. M.P. -70/4865 belongs to the revisionist, Jai Prakash Sharma. This is not in dispute. The revisionist had no knowledge or information of the liquor alleged to have been recovered from the truck. He is not a party to the aforesaid two cases pending before the District Magistrate, Etawah nor has any notice been issued to him the revisionist Jai Prakash Sharma, therein. The mere pendency of the confiscation proceedings is no bar to the release of the truck. The matter is still under Investigation. The truck lying at the police station will, if not released, yet damaged, ruined and rusted, not only this, but it will also ultimately become un-useable and un-serviceable for various obvious reasons. The learned Counsel for the revisionist has placed reliance upon (i) Kamal Jeet Singh v. State 1986 UPCrR 50; (ii) Mohd Hanif v. State of U.P. 1983 UPCrR 239, (iii) Sri Narain v. State of U.P. 1987 ACC 421 and (iv) Jagat Singh v. State of U.P. 1991 ACC 561, in support of his contentions."

(emphasis by Court)

16. The Hon'ble Supreme Court in State (G.N.C.T. of Delhi) vs. Narender, (2014) 13 SCC 100, held in favour of exclusion of jurisdiction of the Magistrate under Section 451/ 457 of the Code in the matter of release of the vehicle carrying illegal liquor and in favour of exclusive jurisdiction of the Special Authority vested with powers of confiscation under Section 58 and 59 of the Delhi Excise Act, 2009. In the aforesaid decision of their Lordships, the vehicle had been apprehended carrying liquor in violation of the Delhi Excise Act, in respect of which a case crime under that Act was registered. The Magistrate, who was moved to release the vehicle, declined the application on the ground of want of jurisdiction but the High Court on an application under Section 482 Cr.P.C. reversed that order and directed release invoking powers under Section 451 of the Code. The Hon'ble Supreme Court reversed the decision of the High Court and held thus:

"12. It is relevant here to state that in the present case, the High Court, while releasing the vehicle on security has exercised its power under Section 451 of the Code. True it is that where any property is produced by an officer before a criminal court during an inquiry or trial under this section, the court may make any direction as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, as the case may be. At the conclusion of the inquiry or trial, the court may also, under Section 452 of the Code, make an order for the disposal of the property produced before it and make such other direction as it may think necessary. Further, where the property is not produced before a criminal court in an inquiry or trial, the Magistrate is empowered under Section 457 of the Code to make such order as it thinks fit.

13. In our opinion, the general provision of Section 451 of the Code with regard to the custody and disposal of the property or for that matter by destruction, confiscation or delivery to any person entitled to possession thereof under Section 452 of the Code or that of Section 457 authorising a Magistrate to make an order for disposal of property, if seized by an officer and not produced before a criminal court during an inquiry or trial, however, has to yield where a statute makes a special provision with regard to its confiscation and disposal.

14. We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation or release to its rightful owner. The requirement of production of seized property before the Deputy Commissioner under Section 59(1) of the Act is, notwithstanding anything contained in any other law, and, so also is the power of confiscation. Not only this, notwithstanding anything to the contrary contained in any other law for the time being in force, no court, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in commission of any offence under the Act.

15. In the present case, the Legislature has used a non-obstante clause not only in Section 59 but also in Section 61 of the Act. As is well settled, a non-obstante clause is a legislative device to give effect to the enacting part of the section in case of conflict over the provisions mentioned in the non-obstante clause. Hence, Section 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof.

16. The view which we have taken finds support from a judgment of this Court in the case of State of Karnataka v. K.A. Kunchindammed (2002) 9 SCC 90, which while dealing with somewhat similar provisions under the Karnataka Forest Act held as follows:

23. ..... The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under Cr.P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.

24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis.

17. From a conspectus of what we have observed above, the impugned order of the High Court is found to be vulnerable and, therefore, the same cannot be allowed to stand."

17. It must be mentioned here that in the Delhi Excise Act, there is a provision expressly excluding the jurisdiction of the Court in the matter of release of anything seized or detained under that Act, embodied in Section 61, and, quoted in paragraph 11 of the report in State (GNCT of Delhi) (supra).

18. Learned counsel for the revisionist emphasized the said distinction to say that in the Act, there is no such provision expressly excluding the jurisdiction of the Magistrate/ court under Section 451/ 457 of the Code. He submits that in the Act there being no provision pari materia with the Delhi Excise Act, their Lordships' decision in State (GNCT) (supra) is not attracted while interpreting the powers of the Magistrate/ Court under Section 451/ 457 of the Code vis-à-vis a vehicle seized under the Act, where confiscation proceedings are pending. This Court does not think so. The opinion, however, is tentative as this Court does not propose to decide the issue finally.

19. Further reliance is placed by the learned counsel for the revisionist on a decision of a learned Single Judge of this Court in Mustafa ors. vs. State of U.P. and ors., 2018 (3) ALJ 351, where an order of confiscation of vehicles passed by the District Magistrate under Section 72 of the Act and affirmed in appeal by the District Judge, the owner of the vehicles moved this Court through a petition under Article 227 of the Constitution challenging the said orders of confiscation on grounds, inter-alia, that the vehicles had been released by the Magistrate in favour of petitioner in exercise of powers under Section 457 of the Code, before the District Magistrate had passed an order of confiscation under the Act, it was held:

"11. 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 v. Narendra passed in Criminal Appeal No. 25 of 2014 decided on 6.1.2014; AIR 2014 SC Supp 1864. ............"

(emphasis by Court)

20. A reading of the decision in Mustafa and others (supra) shows it to be an echo of the view taken by this Court long ago in Ved Prakash (supra). It is the view that has the approval of their Lordships of the Supreme Court in State (GNCT) (supra). The distinction sought to be drawn by the learned counsel for the revisionist between the Act and the Delhi Excise Act, 2009 so far as this Court is concerned, does not hold substance. It is only a difference in the statutory source through which the exclusion of the court's jurisdiction under Section 451/ 457 of the Code, in case of the Act and the Delhi Excise Act, comes. In the Delhi Excise Act, the exclusion of jurisdiction under the Code is expressly made by a provision in that Act, whereas in the case of the Act the exclusion comes through the provisions of Section 5 of the Code that give overriding effect to a special or local law for the time being in force, or any special jurisdiction or powers conferred, or any special form of procedure prescribed by any other law for the time being in force, over that provided under the Code. Under the Act, the matter of release of a vehicle seized, is governed by the provisions of Section 72, so as to exclude the provisions of Section 451, 452 and 457 of the Code. However, since varying opinions have been expressed by learned Single Judges of this Court on the issue on the one hand in Ved Prakash (supra) and Mustafa and others (supra) and on the other in Nand (supra), Mohd. Hanif (supra), Jagat Singh (supra) and Jai Prakash Sharma (supra), it would be appropriate that the issue may be set at rest by a Larger Bench. In the context, this Court finds that the following question arises for consideration:

Whether pending confiscation proceedings under Section 72 of the U.P. Excise Act before the Collector, the Magistrate/ Court has jurisdiction to release any property subject matter of confiscation proceedings, in the exercise of powers under Sections 451, 452 or 457 of the Code of Criminal Procedure?

21. Let the papers of this case be placed by the Registry before Hon'ble the Chief Justice for constitution of a larger Bench.

Order Date :- 31.8.2018

Anoop