Hon'ble Mahendra Dayal,J.
The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India making the following prayers:
" (i) Issue a writ, order or direction in the nature of certiorari quashing the seizure memo dated 10.01.2012 seizing 183.293 kg silver ornaments passed by the Assistant Commissioner, Commercial Tax, Mobile Squad, Allahabad respondent no.1 (Annexure No. 18);
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 2 Additional Chief Judicial Magistrate (North Central Railway), Allahabad and Respondent no.3, Prabhari Nirakshak Thana Railway Protection Force, North Central Railway Allahabad to release 183.293 kg of silver ornaments under detention since 29.11.2011;
(iii) Issue a writ, order or direction be issued as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;
(iv) Award the costs of the petition to the petitioner."
From the averments made in the Writ Petition, it appears that two persons, namely, Vinod Kumar Tripathi and Vijay Kumar Bind were arrested by the Railway Police Force along-with 6 bags of silver ornaments.
A Complaint under Sections 163, 145, 146 and 137 of the Railways Act, 1989 was lodged against the aforesaid two persons. While the criminal case was going-on before the Additional Chief Judicial Magistrate (North Central Railway), Allahabad, the respondent no.1 issued a Notice dated 20th December, 2011 under Section 48 read with Section 51 of the U.P. Value Added Tax Act, 2008 (in short "the VAT Act") to the aforesaid two persons, inter-alia, requiring them to show-cause as to why the aforesaid silver ornaments be not detained/seized.
The aforesaid two persons submitted their Reply dated 27.12.2011, inter-alia, stating that they were employees of M/s Rajshree Jewellers (petitioner herein), and the relevant papers in regard to the said silver ornaments were available with the aforesaid two persons.
In view of the Reply submitted by the aforesaid two persons, the respondent no.1 issued a Notice dated 27.12.2011 under Section 48 read with Section 51 of the VAT Act to the petitioner to show-cause as to why the aforesaid silver ornaments be not detained/seized.
The petitioner submitted its Reply dated 2.1.2012.
After the submission of the said Reply by the petitioner, the respondent no.1 passed an Order dated 10.1.2012 under Section 48 read with the Section 51 of the VAT Act, inter-alia, directing for the seizure of the aforesaid silver ornaments.
It was further observed that in case the petitioner would deposit Rs.14 lacs, the aforesaid silver ornaments would be released in favour of the petitioner.
The petitioner, thereupon, filed the present Writ Petition, inter-alia praying for quashing the said Order dated 10.1.2012.
Affidavits have been exchanged between the parties in the present Writ Petition.
We have heard Shri Rakesh Ranjan Agarwal, learned counsel for the petitioner, Shri S.S. Srivastava, holding brief for Shri Govind Saran, learned counsel for the respondent no. 3,and Shri S.P. Chauhan, learned Additional Chief Standing Counsel appearing for the respondent no.1, and perused the record.
From a perusal of the Rejoinder Affidavit filed on behalf of the petitioner in reply to the Counter Affidavit filed on behalf of the respondent no.1, we find that in paragraphs 9, 10 and 11, the petitioner has, inter-alia, stated that against the said Seizure Memo dated 10.1.2012, the petitioner submitted a Representation under the first proviso to sub-section (7) of Section 48 of the VAT Act before the Joint Commissioner (S.I.B.) Commercial Tax, Allahabad on 12.3.2012.
The Joint Commissioner (S.I.B.) Commercial Tax, Allahabad by the Order dated 14/17.3.2012 rejected the said Representation, and confirmed the Seizure Memo dated 10.1.2012.
Thereupon, the petitioner filed an Appeal under Section 57 of the Act before the Commercial Tax Tribunal, Allahabad Bench, Allahabad. The said Appeal is still pending before the Tribunal.
It is, thus, apparent that during the pendency of the present Writ Petition, the petitioner has availed of alternative remedies available to it under the VAT Act against the said Seizure Memo dated 10.1.2012. The matter is pending in Appeal before the Tribunal.
As regards the criminal proceedings pending before the Additional Chief Judicial Magistrate (North Central Railway), Allahabad, it has, inter-alia, been stated in paragraph 13 of the aforesaid Rejoinder Affidavit that the Additional Chief Judicial Magistrate (North Central Railway), Allahabad passed an Order dated 4.4.2012 declining to release the aforesaid silver ornaments in favour of the petitioner. Copy of the said Order dated 4.4.2012 has been filed as Annexure RA-7 to the said Rejoinder Affidavit.
The aforesaid silver ornaments were taken in custody by the Court of Additional Chief Judicial Magistrate (North Central Railway), Allahabad under Section 451 of the Code of Criminal Procedure, 1973. The Order dated 4.4.2012 has evidently been passed by the Additional Chief Judicial Magistrate in exercise of his power under Section 452 after conclusion of trial in the aforesaid matter.
The Order passed under Section 452 of the Code of Criminal Procedure, 1973 is appealable under Section 454 of the said Code.
In view of the above, it is evident that the prayer made in the Writ Petition seeking direction to the Additional Chief Judicial Magistrate (North Central Railway), Allahabad and Prabhari Nirakshak Thana Railway Protection Force, North Central Railway, Allahabad for releasing the aforesaid silver ornaments, cannot be granted as the Additional Chief Judicial Magistrate (North Central Railway), Allahabad has already passed the Order dated 4.4.2012 declining to release the aforesaid silver ornaments, and the petitioner has remedy of filing Appeal against the said Order dated 4.4.2012.
In view of the above, the Writ Petition is liable to be dismissed on the ground that in respect of the prayer (i) made in the Writ Petition, the petitioner is already availing alternative remedy and in respect of prayer (ii), the petitioner has got an alternative remedy of filing Appeal.
The Writ Petition is accordingly dismissed on the aforesaid grounds.
However, on the facts and in the circumstances of the case, there will be no order as to costs.
Order Date :- 1.5.2012 Ajeet