Ajay Kumar vs State Of U.P. And Another
2023 Latest Caselaw 11177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											A.F.R.
 
Reserved
 

 

 
Court No. - 53
 
Case :- APPLICATION U/S 482 No. - 16161 of 2022
 

 
Applicant :- Ajay Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Umesh Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Heard Sri Umesh Kumar, learned counsel for the applicant and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material available on record.

2. This application has been made by the accused -applicant to quash the order dated 19.07.2021 passed by Chief Judicial Magistrate, Etah, in criminal case no. 781 of 2020 and order dated 16.10.2021 passed by Learned Sessions Judge in criminal revision no.76 of 2021 rejecting the application of applicant for releasing his vehicle no. (U.P 80 CT 3283), in case crime no. 594 of 2019, U/s 60, 63, 72 of UP. Excise Act, Police Station Kotwali, District Etah.

3. In brief, facts of the case are that an FIR was lodged in case crime no. 594 of 2019, at Police Station Kotwali Dehat, U/s 60, 63, 72 of Excise Act, District Etah. A copy of the FIR dated 21.12.2019 has been filed as annexure no.1 to the affidavit. The applicant is not involved in the said crime and he never gave consent for the purpose of the alleged illegal work. The relatives use the vehicle of the applicant for own purposes.

4. The applicant filed an application for the release of his vehicle no. UP 80 CT 3283 on 4.8.2020 before the C.J.M, Etah which is in the custody of police station Kotwali Dehat, u/s 60, 63, 72 of Excise Act, District Etah. The application dated 4.8.2020 is annexure no.2 to the affidavit.

5. The learned C.J.M rejected the applicant's application without considering the fact on 19.7.2021, the certified copy of the order has been filed herewith as annexure no. 3. The applicant filed criminal revision on 16.10.2021 in which he had disclosed the entire facts but the same was also rejected by Learned District and Sessions Judge on the same day.

6. The FIR was not lodged against the applicant Ajay Kumar but against Surendra Singh, Satish Chandra and Devendra Singh in case crime no. 367 of 2020, at police station Iglas, u/s 406, 452, 323, 504 of IPC., District Aligarh which is annexure no. 5 to the affidavit.

7. Devendra Singh, Surendra Singh and Satish Chand had taken the applicant's vehicle on rent in the month of august 2019. The vehicle was run by the aforesaid persons till the incident and when the applicant inquired after two months from the aforesaid persons/relatives regarding the vehicle, then matter came into the knowledge that the vehicle is being kept in police station Kotwali Dehat, Etah. Since the aforesaid persons are relatives of the applicant, no suspicion arose and when the matter came into the knowledge of the applicant, he started his effort to release the vehicle. The vehicle was not used by the applicant in the alleged crime and has no concern with the alleged persons. The applicant has also lodged an FIR against his relatives because they were not giving information about the vehicle. The aforesaid relatives cheated to the applicant and used the applicants vehicle in the said crime that was not in the knowledge of the applicant. The applicant is not involved in the aforesaid crime and the vehicle is in the name of the applicant and he is owner of the vehicle. The applicant was ready to pay the security before the learned court imposed by the court at the time of the release of vehicle. The applicant has completed all the legal formalities regarding the vehicle through the documents which is annexure no. 6 to the affidavit.

8. The learned court did not consider the facts and circumstances available on records and passed the impugned order in a routine manner without applying judicial mind. The vehicle of the applicant is confined since 21.12.2019 and is standing in worst position as such if it is not released, he will suffer irreparable loss and injury. The trial court ignoring all the facts and circumstances of the case, rejected the release application which is bad in the eyes of law. The learned court has passed the impugned order in mechanical way without perusing the record. Hence, the application be allowed and order of the CJM and the revisional Court be set aside.

9. All the relevant papers referred in the application have been annexed with the affidavit..

10. From the side of State opposite party no. 1 Ashwini Kumar SI, PS Kotwali Etah has filed counter affidavit and has deposed that the order of rejection passed by the CJM and the learned revisional court are legal, perfect and the same are always sustainable in the eyes of law. The impugned vehicle has been auctioned for a sum of RS 98500/-.

11. The applicant has filed rejoinder affidavit in which a simple prayer has been made to allow the petition and no avernments have been made against Para 11 of the Counter Affidavit and the same has not been denied which discloses that in furtherance of confiscation, the impugned vehicle has been auctioned. From the perusal of both the impugned order it transpires that when the release application and the revision against the rejection order of CJM were pending, the impugned vehicle was under the process of confiscation. Learned CJM relying on Mustafa Vs. State of UP AIR 2019 SC 3949 and Virendra Gupta Vs. State of UP 2019 (108) ACC 438 rejected the release application observing that when any proceeding for confiscation of a vehicle u/s 72 (2) of the UP Excise Act is pending, the district magistrate would only be entitled to deal with such vehicle and in that case the concerned judicial magistrate would not be competent to release the vehicle or to entertain the release application u/s 451, 452 and 457 of Cr.P.C.

12. It would be appropriate to mention Section 72 of the U.P. Excise Act, which reads as follows:

Section 72. What things are liable to confiscation

(1) Whenever an offence punishable under this Act has been committed --

(a) every [intoxicant] in respect of which such offence has been committed;

(b) every still, utensil, implement or apparatus and all materials by means of which such offence has been committed;

(c) every [intoxicant] lawfully imported, transported,

manufactured, held in possession or sold along with or in addition to any [intoxicant] liable to confiscation under clause (a) ;

(d) every receptacle, package and covering in which any [intoxicant] as aforesaid or any materials, still, utensil, implement or apparatus is or are found, together with the other contents (if any) of such receptacle or package ;and

(e) every animal, cart, vessel or other conveyance used in carrying such receptacle or package; shall be liable to confiscation.

(2) Where anything or animal is seized under any provision of this Act, the officer seizing and detaining such property shall, within three working days from the date of such seizure and detention ; produce a detailed report for confiscation along with such seized property, seizure memo and other relevant documents before the Collector. The Collector shall, upon receiving the said report along with seizure memo and seized property, immediately order for safe custody and storage of goods as he may deem fit. The Collector, if satisfied for reasons to be recorded that an offence has been committed due to which such thing or animal has become liable to confiscation under sub-section (1), he may order confiscation of such thing or animal whether or not a prosecution for such offence has been instituted ;

Provided that in the case of anything (except an intoxicant) or animal referred to in sub-section (1), the owner thereof shall be given an option to pay in lieu of its confiscation such fine as the Collector thinks adequate, not exceeding its market value on the date of its seizure.

(3) Where the Collector on receiving report of seizure or on inspection of the seized thing, including any animal, cart, vessel or other conveyance, is of the opinion that any such thing or animal is subject to speedy wear and tear or natural decay or it is otherwise expedient in the public interest so to do he may order such thing (except an intoxicant) or animal to be sold at the market price by auction or otherwise.

(4) Where any such thing or animal is sold as aforesaid, and--

(a) no order of confiscation is ultimately passed or maintained by the Collector under sub-section (2) or on review under sub-section(6) ; or

(b) an order passed on appeal under sub-section (7) so requires;or

(c) in the case of a prosecution being instituted for the offence in respect of which the thing or the animal is seized, the order of the Court so requires ; the sale proceeds after deducting the expenses of the sale shall be paid to the person found entitles thereto.

(5) (a) No order of confiscation under this section shall be made unless the owner thereof or the person from whom it is seized is given--

(i) a notice in writing informing him of the grounds on which such confiscation is proposed; (ii) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice; and (iii) a reasonable opportunity of being heard in the matter.

(b) Without prejudice to the provisions of clause (a), no order confiscating any animal, cart, vessel, or other conveyance shall be made if the owner thereof proves to the satisfaction of the Collector that it was used in carrying the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the person in-charge of the animal cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.

(6) Where on an application in that behalf being made to the Collector within one month from any order of confiscation made under sub-section (2), or as the case may be, after issuing notice on his own motion within one month from the order under the sub-section refusing confiscation to the owner of the thing or animal seized or to the person from whose possession it was seized, to show cause why the order should not be reviewed, and after giving him a reasonable opportunity of being heard, the Collector is satisfied that the order suffers from a mistake apparent on the face of the record including any

mistake of law, he may pass such order on review as he thinks fit.

(7) Any person aggrieved by an order of the confiscation under sub-section (2) or sub-section (6) may, within one month from the date of the communication to him of such order, appeal to such judicial authority as the State Government may appoint in this behalf and the judicial authority shall, after giving an opportunity to the appellant to be heard pass such order as it may think fit, confirming, modifying or annulling the order appealed against.

(8) Where a 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 the order of the Court.

(9) No order of confiscation made by the Collector under this section shall prevent the infliction of any punishment to which the person affected thereby may be liable under this Act."

13. Learned revisional court has quoted Section 72 of U.P. Excise Act and has also analysed the judgment Virendra Gupta (supra) and has concluded that in Virendra Gupta (supra) the case of Govt. of NCT of Delhi vs. Narendra (2014) 13 SCC 100 has been considered according to which in case of confiscation, the seized property shall be dealt with by section 72 of the Act which does not contain any provision indicating that such seized property may be released by the magistrate in the exercise of his power u/s 457 CrPC as sub section (1) to (4) of Section 72 clearly denudes the magistrate of his power to pass any order u/s 457 Cr.P.C for release of anything sized in connection of an offense purporting to have been confiscated under the Act.

14. The District Magistrate, Etah had informed CJM vide report dated 5.9.2020 that the confiscation proceedings regarding the impugned vehicle is pending before him. It appears that later on the confiscation proceeding has become final at the end of District Magistrate, Etah hence, the impugned vehicle had been auctioned for a consideration of Rs 98,500/-.

15. Learned counsel for the applicant has relied on Sundar Bhai Ambalal Desai Vs. State of Gujarat 2002 lawsuit (SC) 1346 which is in respect of 451 Cr.P.C and is inapplicable about the vehicle which are subject to the confisccation and not the subject matter of general law, hence Chapter XXXIV of the Cr.P.C has no applicability.

16. Learned counsel for the applicant has further relied upon Chandrapal Vs. State of UP 2021 0 Supreme All 92 in which the application u/s 482 Cr.P.C was allowed and the matters were remitted back to the concerned magistrate to decide first as to whether the Civil Court had jurisdiction or not. In this case since no corpus is into existence for release hence this application has also become infructuous. Now the only remedy remains available to the applicant is to challenge the validity of confiscation proceeding conducted by the District Magistrate, Etah.

17. On the basis of above discussion this court is of conclusion that the impugned order passed by the learned CJM and learned revisional court is factually and legally correct. When the impugned vehicle was under the confiscation proceeding before the district magistrate Etah, it was open to the applicant to appear and contest there.

18. In view of the above judgments and Section 72 of the UP Excise Act both the courts at district level were not competent to entertain and allow the release application. At present there is no property remains as subject matter for decision by the civil court or the High Court. Hence this application deserves to be dismissed.

ORDER

This application is, accordingly, dismissed.

Order Date :-17.4.2023

S.Verma

(Umesh Chandra Sharma, J.)