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2016 DIGILAW 420 (UTT)

Sandeep Rawat v. State of Uttarakhand

2016-08-01

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 1. By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the order dated 06.05.2016 passed by the Judicial Magistrate 2nd, Dehradun in Misc. Release Application and the order dated 10.06.2016 passed by the 3rd Additional Sessions Judge, Dehradun in Criminal Revision No.102 of 2016, whereby the prayer of the applicant to release 1000 cartons of Bacardi Rum (alcoholic spirit) in favour of Bacardi India Pvt. Ltd was dismissed. It is further prayed by the applicant to release the seized liquor in favour of applicant. 2. Brief facts of the case are that a consignment of 1000 cartons of Bacardi Rum (alcoholic spirit) was loaded in a truck-vehicle bearing its registration no.UP17-A-3747 from the factory of Bacardi India Pvt. Ltd., Bazpur Road, Kashipur, Udham Singh Nagar and it was to be unloaded at Krishi Utpadan Mandi Parishad, Kunwawala, Dehradun. But, the same could not be unloaded at the destination and the driver of truck proceeded further alongwith the vehicle and cartons and reached in the jurisdiction of Vasant Vihar police station, where the truck was stationed and the driver went to one of his relative house. In the meanwhile, the police seized the vehicle, as also the cartons containing Bacardi Rum. 3. Whereas the truck has been released in favour of its registered owner and the driver has already been granted bail, 1000 cartons of Bacardi Rum are still lying with the police station, Vasant Vihar, Dehradun. The applicant seeks to release the same in his favour. It is the submission of learned counsel for the applicant that he is an authorized agent of Bacardi India Ltd. and is having all relevant documents to show that he is the owner of alleged 1000 cartons of Bacardi Rum. It is further argued on behalf of the applicant that the driver of the vehicle in question was challenged under Section 60/72 of the U.P. Excise Act (hereinafter referred to as the ‘Act’) and no case was registered against the present applicant, who is said to be an authorized agent on behalf of Bacardi India Ltd. 4. When the applicant’s application for release of liquor was dismissed by learned Judicial Magistrate 2nd Dehradun vide order dated 06.05.2016, he preferred a criminal revision, which was dismissed, vide order dated 10.06.2016 passed by 3rd Additional Sessions Judge, Dehradun. When the applicant’s application for release of liquor was dismissed by learned Judicial Magistrate 2nd Dehradun vide order dated 06.05.2016, he preferred a criminal revision, which was dismissed, vide order dated 10.06.2016 passed by 3rd Additional Sessions Judge, Dehradun. Hence, the present application under Section 482 Cr.P.C. 5. 1000 cartons of Rum have only been seized (not confiscated) by the police, otherwise the provision of Section 72 of the Act would have come into play. Had any order been passed by any authority under Section 72 of the Act, the proper forum for the applicant would have been to file an appeal before the District Judge concerned (not the Sessions Judge). Here, the case is different. Cartons of rum have not been confiscated under Section 72 of the Act. It was simply seized by the police of Vasant Vihar, Dehradun and is lying with the same police station. 6. Learned counsel for the applicant placed reliance upon a decision of Allahabad High Court in M/s Radico Khaitan Limited vs. State of U.P. & another in Criminal Revision No.3769 of 2011, wherein the Allahabad High Court while relying upon its earlier decision in M/s McDowell & Co. Ltd. vs. State of U.P. & others 2007(4) ADJ 59 has held that the offence under Section 72 of the Act can be constituted only when the vehicle is carrying a contraband goods (i.e. prohibited, smuggled, forbidden to be exported or imported goods). In the instant case, it is the contention of learned counsel for the applicant that the Bacardi Rum was not being smuggled and due to lack of space in the godown of destination, the driver drove the vehicle to Vasant Vihar, stationed there and he himself went to meet one of his relatives. 7. Learned counsel for the applicant further relied upon a decision of Hon’ble Apex Court in Sunderbhai Ambalal Desai vs. State of Gujarat, 2003 SCC (Cri) 1943, wherein it was 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 applications for return of such vehicles. 18. …………………….. 19. 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 applications for return of such vehicles. 18. …………………….. 19. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may be kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing. 20. ……………………… 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.” 8. In view of law enumerated hereinabove, this Court is of the considered opinion that the application under Section 482 Cr.P.C. should be allowed. The same is, therefore, allowed. Impugned orders are quashed. Learned Magistrate shall pass suitable orders in the light of aforesaid case laws for release of seized consignment of liquor (i.e. 1000 cartons of Bacardi Rum) in favour of its authorized agent on such terms and conditions as he may deem fit.