1. This petition has been filed with the following main prayer:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the impugned judgement and order dated 17.12.2020 passed by the Uppr Collector/Upper District Magistrate, Hardoi in Case No. 01087/2020 (Computerized Case No. D202010330001087 (State vs. Anuj Jaiswal @ Lachchhu) U/s 72 of the U.P. Excise Act in the respect of the petitioner in the interest of jusice.
It is further prayed that this Hon'ble Court may kindly be pleased to direct the respondents to release the Vehicle No. U.P. 32/HH-5155 in favour of the Petitioner without imposing any fine which has been illegally seized by the Police Authority of District Hardoi in Case Crime No. 398/2020 Under Section 60/63 of the U.P. Excise Act, 1910 & under Sections 419/420/467/468/471 IPC Police Station, Beniganj, District Hardoi, in the interest of justice."
2. It has been submitted that a Criminal Case had been registered against the five persons including the petitioner by the police as Case Crime No. 398 of 2020 under Section 60/63 of the U.P. Excise Act, 1910 & under Sections 419, 420, 467, 468, 471 IPC Police Station Beniganj, District Hardoi. It was alleged by the police that on the basis of information given by the informer, a white coloured car (Swift) was seized with illicit liquor. Two persons were arrested from the car and they informed of the name of the petitioner as owner of the car. The petitioner was arrested, thereafter.
3. It has been submitted by the learned counsel for the petitioner that the petitioner is the registered owner of Vehicle No. UP 32 HH 5155 (Swift Desire) and his vehicle was not used. A false FIR was registered against him.
4. The petitioner was issued a show cause notice to which the petitioner replied that his car was not involved and has been seized improperly by the police. The petitioner appeared before the District Magistrate/Additional Collector, Hardoi in pursuance of the show cause notice and the reply submitted by him on 16.10.2020, praying for release of his vehicle under Section 72(2) of the U.P. Excise Act, 1910. The learned Additional District Magistrate asked for comments from the police and has accepted the application for release with the condition that the petitioner may deposit 30% of the value of the vehicle and also given an undertaking that he shall not sell of the vehicle or change its condition in any manner and would produce the same before the learned trial court as and when it is so summoned. The copy of the order was directed to be sent by the police to the Assistant Regional Transport Officer, Hardoi.
5. It is the case of the petitioner that the Additional District Magistrate exceeded his jurisdiction when he passed an order of depositing of 30% percent of the value of the car. It has been submitted that in view of the law settled by a Co-ordinate Bench of this Court in Criminal Revision No. 2177 of 2018, 'Devendra Gupta vs. State of U.P. and others decided on 31.08.2018, and in Criminal Revision No. 1568 of 2018, 'Rajiv Kumar Singh vs. State of U.P. and others decided on 23.11.2016. The District Magistrate should have directed the release of the vehicle by taking Bank Gurantee instead of asking for 30% of the value of the vehicle.
6. It has been submitted by the learned counsel for the petitioner that he had earlier approached this Court by filing a writ petition under Article 226 of the Constitution of India, namely, Writ Petition No. 23997 (MB) of 2021, 'Manoj Kumar Jaiswal vs. State of U.P. and Anothers'. This Court had directed the petitioner to avail the remedy as available to him under law and dismissed the writ petition as withdrawn.
7. Sri S. P. Tiwari, learned AGA for the State has raised a preliminary objection regarding the maintainability of this petition under Section 482 of the Cr.P.C. by referring to Section 72 (2) of the U.P. Excise Act, and thereafter, Sub-Section (7) of the same Section 72 where it has been provided that any person aggrieved by an order of confiscation under Section 72 (2) to (6) may within one month from the date of the order file an appeal to the judicial authority nominated by the State Government in this behalf.
8. It has been submitted that the order having been passed by the Additional District Magistrate/Collector remedy lies in filing an appeal Section 72 (2) before the District Judge on the civil side under the Excise Act.
9. It has been submitted by the learned counsel for the petitioner that since there is an abuse of process of Court by the Collector, therefore, a petition under Section 482 of the Cr.P.C. will be maintainable before this Court. It has been submitted by the learned counsel for petitioner on the basis of orders passed in the aforementioned two judgements that the Collector was bound to release the vehicle during pendency of the proceedings for confiscation and he could not have passed the order directing the petitioner to deposit 30% of the value of the car/seized vehicle.
10. This Court has carefully perused the judgement in the case of Virendra Gupta vs. State of U.P. (Supra) and finds that it has been passed in a Criminal Revision against the order passed by the Chief Judicial Magistrate, Mau rejecting the application for release of a vehicle seized under Section 451 (1) of the Cr.P.C., 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. The vehicle was found transporting country-made adulterated liquor. The revisionist application had been rejected on the ground that since confiscation proceedings in relation to the vehicle were in progress, it would not be appropriate in the interest of justice to release the vehicle in favour of the revisionist.
11. This Court in Virendera Gupta (Supra) has placed reliance upon the observations made by Hon'ble Supreme Court in the case of "Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283, to say that a vehicle seized in a crime and parked at police station should be immediately released by taking appropriate Bond and Guarantee as well as the Security for return of the said vehicle, if required at any point of time. This can be done pending hearing of applications for return of such vehicle. The Co-ordinate Bench has also placed reliance upon the judgement rendered in case of Nand vs. State of U.P. 1997 (1) AWC 41 where the jurisdiction of the Magistrate under Section 451 Cr.P.C. to release the seized vehicle pending investigation or trial notwithstanding the pending of the confiscation proceedings before the Collector was dealt with by this Court. The Court had observed in Nand (Supra) that since the ownership of the seized vehicle was not disputed the revisionist could give a bank guarantee of Rs. 2,00,000/- before the Chief Judicial Magistrate, Kanpur Dehat and file 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 variation in the truck.
12. The Court relied upon the observations made in another judgement in the case of Rajiv Kumar Singh vs. State of U.P. and others, 2017 (5) ADJ, 351, where the Court observed that the vehicle from which country-made liquor had been recovered and was seized could be released under Section 72 of the Excise Act, if the revisionist therein was ready to furnish the sureties before the Court concerned. The Court dealt with Section 451 to 457 of the Cr.P.C. and the general principles governing release pending investigation or trial, and had observed that vehicle seized in connection with a crime should not be left to deteriorate at the police station. The Court observed that the U.P. Excise Act is related to seizure and confiscation of vehicles, but still the power under Section 451 or 457 of the Cr.P.C. would be available to the Magistrate pending confiscation proceedings under the special or the local law. The judgement rendered in the case of Sunderbhai Ambalal Desai(supra) was distinguished by this Court and the law laid down by this Court in Ved Prakash vs. State of U.P., 1982 AWC 167 Allahabad was followed where it was observed that the apprehension of vehicle carrying liquor in contravention of the law be dealt with in proceedings under Section 457 of the Cr.P.C.
13. This Court has carefully considered the judgement rendered in the case of Virendra Gupta (Supra) that it was rendered in Criminal Revision arising out of an order of the Chief Judicial Magistrate, Mau dated 13.06.2018 rejecting an application for release under Section 451 of the Cr.P.C., on the ground that confiscation proceedings under Section 72 of the Excise Act were pending before the Collector. The Court had referred the matter in its order dated 31.08.2018 to the Hon'ble Chief Justice for constitution of a larger Bench to decide the question:-
"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?"
14. The judgement cited by the learned counsel for the petitioner does not help him insofar as no definite opinion had been expressed with regard to applicability of the Section 72 of the U.P. Excise Act or that of Section 451 or 457 of the Cr.P.C. The other judgement cited by the learned counsel for the petitioner in Rajiv Kumar Singh vs. State of U.P. & Another also was a judgement rendered in a Criminal Revision where the Additional Chief Judicial Magistrate had rejected the application of the revisionist for release of vehicle under Section 60 of the Excise Act on the ground that confiscation proceedings under Section 72 of the U.P. Excise Act, were pending before the Collector, and it would complicate the matter.
15. In this case, the petitioners application under Section 72 Sub-Section 2 has been allowed by the Collector subject to the condition of payment of 30% of the market value of the vehicle which has been seized carrying illicit liquor. The very language of Section 72 of the Excise Act, and its Proviso, gives power to the Collector to release the vehicle to the owner thereof by giving a bond to pay in lieu of its confiscation such fine at the Collector thinks appropriate but not exceeding on the date of its seizure.
16. It is apparent from the language of the Act that the Collector can impose a fine up to the extent of entire market value of the seized vehicle. In the instant case obviously thirty percent of the value of the seized car have been directed to be paid.
17. Under Sub-Section (7) of Section 72, the petitioner could have appealed against such an order as it has a statutory remedy provided under the Act, which could not be bye passed.
18. There is no abuse of process of Court as alleged by the counsel for the petitioner for this Court to exercise its inherent jurisdiction under Section 482 of the Cr.P.C.
18. Accordingly, the petition stands rejected.
19. No order as to costs.
Order Date :- 23.12.2021 Darpan Sharma [Justice Sangeeta Chandra]