Smt. Babita vs State Of U.P.
2022 Latest Caselaw 4870 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 25420 of 2021
 
Applicant :- Smt. Babita
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pavan Kumar Mishra,Anjali Singh Tomer,Inder Pal Singh Tomar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

This application has been filed with a prayer to set aside the order dated 31.08.2021 passed by Session Judge Shamli, District Shamli in Criminal Revision No. 17 of 2021 (Smt. Babita Vs. State of U.P.) as well as order dated 30.07.2021 passed by Chief Judicial Magistrate Shamli, District Shamli arising out of Case Crime No. 187 of 2021, under Section 60/72 of U.P. Excise Act and 272, 273 I.P.C., Police Station Kairana, District Shamli and further prays for release the vehicle of the applicant bearing Registration No. UP11AT8508.

On 16.05.2022 this court granted time to learned A.G.A. to file counter affidavit, but till today leaned A.G.A. has not filed the counter affidavit, therefore, this court has no option except to proceed to hear and decide the matter.

Learned counsel for the applicant further argued that the vehicle No. UP11AT8508 of the applicant has been falsely confiscated in the present case due to extract illegal gratification from her and after the denial the police, thereafter, lodged an F.I.R. under Sections and vehicle was ceased by the police.

Learned counsel for the applicant submits that the complainant lodged the F.I.R. against the applicant on 06.04.2021 in relation to the incident which is said to have taken place on 06.04.2021 at 11.45 am. with Case Crime No. 187 of 2021, under Sections 272, 273 I.P.C. and 60,63 and 72 of U.P. Excise Act, Police Station Kairana, District Shamli, which has been lodged due to the ulterior motive and mala fide intention.

Learned counsel for the applicant further submits that no recovery or any intoxication had been made from the vehicle and the from the possession of the applicant and all the valid papers relating to the vehicle was present.

Learned counsel for the applicant has moved release application before the learned Magistrate stating therein that his husband was the owner of the vehicle No. UP11AT8508, who has expired on 25.05.2021 and after his death she was the owner of the vehicle and thereafter a prayer was made to release the aforesaid vehicle.

Learned counsel for the applicant further submits that the release application of the applicant was rejected by the learned Magistrate on 30.07.2021 on the ground that he has no jurisdiction to release the said vehicle. Thereafter, the applicant filed revision which was also dismissed vide order dated 31.08.2021 by learned Session Judge, Shamli.

Learned counsel for the applicant has submitted that the vehicle is standing in open yard in the police station since long and with the passage of time ultimately it will become junk and after sometime it is not useful for any purpose. Reliance has been placed on the law laid down 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 for the applicant has further drawn the attention of the Court regarding the provisions of Sections 451 and 457 of Cr.P.C., which is quoted as under:-

"451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation.- For the purposes of this section," property" includes-

(a)property of any kind or document which is produced before the Court or which is in its custody,

(b)any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

457. Procedure by police upon seizure of property.

(1)Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2)If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."

Learned counsel for the applicant has further submitted that the applicant is ready to comply with all the conditions, which the lower court will impose while releasing the vehicle. Undisputedly, applicant is the rightful owner of the vehicle, therefore, the vehicle be released in his favour and the impugned orders be quashed.

Learned A.G.A. has opposed the application and has been stated that the proceedings under Section 60/72 of U.P. Excise Act and 272, 273 I.P.C. are pending before the District Magistrate, Shamli who is the competent authority to decide this issue whether the vehicle be released or not and the applicant may appear before the District Magistrate and apprise him regarding her grievances. Learned A.G.A. further submits that the vehicle is involved in criminal case under Sections under Section 60/72 of U.P. Excise Act and 272, 273 I.P.C., and therefore, the vehicle cannot be released in favour of the applicant.

Learned counsel for the applicant has contented that mere pendency of confiscation proceedings before the District Magistrate under Section 60/72 of U.P. Excise Act and 272, 273 I.P.C., shall not operate as a bar against the release of vehicle seized under Section 60/63/72 of Excise Act.

After having heard the learned counsel for the parties, I have carefully gone through the relevant legal provisions and the judgments rendered by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (supra) and the judgment passed 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 and 21 has been pleased held as under:-

"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 application for return of such vehicles.

21. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. Are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This Object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly."

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."

This Court further has held in the case of Jai Prakash Vs. State of U.P., 1992 AWC 1744 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.

In the opinion of this Court, it is not disputed that the power under Section 451 of Cr.P.C. is not properly and widely used by the court below while passing the orders. The power conferred under Section 451 of Cr.P.C. be exercised by the court below with judicious mind and without any unnecessarily delay. So that the litigant may not suffer, merely keeping the article in the custody of the police in the open yard will not fulfill any purpose and ultimately it result the damage of the said property. The owner of the property be allowed to enjoy the fruits of the said property for the remaining period for which the property is being made.

Further in the opinion of this Court, the procedure as contemplated under Section 457 of Cr.P.C. be also followed promptly, so that the concerned Magistrate may take prompt decision for disposal of such properties and be released in favour of the entitled person of the said property, keeping the said property in the custody will not solve any purpose and that gives a mental and financial torture to the owner of the said property which is also against the law and against the principles of natural justice.

As per the legal propositions mentioned above and keeping in view this fact that undisputedly the applicant is the registered owner of the seized vehicle and the ownership of the vehicle is not indispute neither the State or any other person has claimed their ownership over the vehicle, therefore, no useful purpose will be served in keeping the vehicle stationed at the police station in the open yard 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 and the impugned order the order dated 31.08.2021 passed by Session Judge Shamli, District Shamli in Criminal Revision No. 17 of 2021 (Smt. Babita Vs. State of U.P.) as well as order dated 30.07.2021 passed by Chief Judicial Magistrate Shamli, District Shamli arising out of Case Crime No. 187 of 2021, under Section 60/72 of U.P. Excise Act and 272, 273 I.P.C., Police Station Kairana, District Shamli are set aside and the case is remitted back to the concerned Magistrate to decide the release application of the applicant afresh within a period of two months from the date of certified copy of this order is filed before the court below in the light of the aforesaid observations and the law as discussed above.

Order Date :- 2.6.2022

Arvind