Allahabad High Court
Vikas Upadhyay vs State Of U.P. And 2 Others on 11 January, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 68
Case :- APPLICATION U/S 482 No. - 30902 of 2022
Applicant :- Vikas Upadhyay
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Pramod Kumar Srivastava,Manoj Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
Heard learned counsel for the applicant, learned A.G.A for the State and perused the material available on record.
By means of this application, the applicant has prayed for setting aside the impugned order dated 01.08.2022 passed by Chief Judicial Magistrate, Chitrakoot in Case No.510 of 2022, Police Station Bharatkoop, District Chitrakoot.
Learned counsel for the applicant has submitted that the applicant is the registered owner of Truk No.UP96 T3091 having valid E-Transit Pass. The said vehicle is not confiscated. The said vehicle was e-challaned by the mining officer on account of non payment of demand made by the opposite party no.3, thereafter, a notice was issued to the applicant demanding a sum of Rs.29,800/- for the aforesaid vehicle. He has further submitted that thereafter the applicant has filed an application before the Chief Judicial Magistrate with the prayer to call the challani report of the applicant's vehicle but the court below vide order dated 01.08.2022 without considering the real facts, rejected the applicant's application on the ground that the matter may be decided by the district magistrate. He has further submitted that the district magistrate has no power to release the vehicle in question. He has further submitted that in a similar matter, a coordinate Bench of this Court vide order dated 14.10.2022 while setting aside the impugned order directed the court below to consider and decide the matter afresh in accordance with law.In support of his submission, he has relied upon paragraph 18 of the the judgment of this Court passed in Criminal Misc. Writ Petition No.20111 of 2015 wherein it has been held that the District Magistrate has no power whatsoever to deal with the seized minerals, tool, vehicle, plant and machinery etc. used in illegal activities as per the Act of 1957. The District Magistrate is not competent to release seized minerals, plant, machinery, vehicles etc. used offence under Section 21 of the Act 1957.
Learned AGA has opposed the prayer made but could not dispute the aforesaid facts.
Perusal of the impugned order discloses that it is not in consonance with the requirement of Section 457 Cr. P.C. which entails that the court shall determine the question of entitlement of possession under that section. In this case it is not in dispute that the revisionist was entitled to possession of the aforesaid vehicle. The ownership of the said vehicle was not in dispute at all.
Having heard the submissions advanced by learned counsel for the applicant as well as material brought on record, this court of the view that the argument advanced by learned counsel for the applicant has force. Accordingly the order dated 01.08.2022 passed by Chief Judicial Magistrate, Chitrakoot in Case No.510 of 2022, Police Station Bharatkoop, District Chitrakoot, is hereby set aside. The matter is remanded back to the concerned Chief Judicial Magistrate to consider and decide the matter afresh, in accordance with law, preferably within a period of two months from the date of production of a certified copy of the order before it.
With the aforesaid directions, the instant application is accordingly, allowed.
Order Date :- 11.1.2023
Ajeet
