Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1326 (ALL)

JAVED v. STATE OF U. P.

2017-05-18

PANKAJ MITHAL, VINOD KUMAR MISRA

body2017
JUDGMENT By the Court.—Heard Sri Santosh Kumar Singh, learned counsel for the petitioner and Sri A.C. Tripathi, learned Standing counsel for the respondents. 2. The petitioner has invoked the writ jurisdiction of this Court for release of Truck bearing registration No. NL 02K 4113 of Nagaland. 3. Sri Tripathi on the basis of the instructions received by him informs that the aforesaid vehicle has been seized on various grounds of breach of the provisions of the Motor Vehicles Act, 1988 such as non registration of the vehicle in U.P., where it was being used and plied, for want of permit and payment of road tax etc. 4. The information of seizure has been furnished to the Chief Judicial Magistrate vide report dated 17.3.2016 and further report dated 16.9.2015. 5. Section 207 of the Motor Vehicles Act, 1988 authorizes the police or any other officer authorized in this behalf by the State Government to seize and detain the vehicle, if it is found to be in use in contravention of the provisions of the Act namely without certificate of registration, permit etc. 6. Sub-section Section 2 of the aforesaid Section empowers the owner or the person incharge of the vehicle to apply to the transport authority or any officer authorized in this behalf by the State Government for release of the vehicle whereupon such authority subject to verification of the documents, order for release of the vehicle with or without any condition as may be deemed fit under the facts and circumstances of the case. 7. The power of release of a vehicle so detained under the Act has been conferred upon the transport authority and not to the Court. 8. In the case of Mazhar Ali Khan v. Chief Judicial Magistrate, AIR 1996 Alld. 16, it has been ruled that the transport authority is empowered to release the vehicle seized by the police. 9. The provisions contained in the Act which is special in nature prevails over the general provisions, if any, contained in this regard under Cr.P.C. 10. 8. In the case of Mazhar Ali Khan v. Chief Judicial Magistrate, AIR 1996 Alld. 16, it has been ruled that the transport authority is empowered to release the vehicle seized by the police. 9. The provisions contained in the Act which is special in nature prevails over the general provisions, if any, contained in this regard under Cr.P.C. 10. In Ram Sweak Jaiswal v. State of U.P., 1996 Cr.LJ 1012 Alld., a learned Single Judge of this Court has laid down that the power given under Section 207 (2) to release the vehicle is upon the transport authority and this power overrides the provisions of the Cr.P.C. Therefore, the Magistrate is not empowered to release the vehicle seized and detained under the Act by applying the powers of Cr.P.C. 11. Section 457 Cr.P.C., provides for the procedure to be followed by the police upon the seizure of any property which may include seizure of vehicle. It provides that if any such seizure is reported to a Magistrate and the property so seized is not produced during the inquiry or trial, the Magistrate may pass orders as may think fit for disposal of the property or regarding his custody and production. 12. The aforesaid general provision contained in the Cr.P.C., comes into ply only when detention and seizure of the property/vehicle is reported to the Magistrate. Therefore, once the police or the officer detaining or seizing the property or the vehicle informs about it to the Magistrate with his report, the Magistrate may exercise power under Section 457 Cr.P.C., in respect of the release of the said property or the vehicle and not otherwise. 13. The seizure of the property by any police officer must be reported to the Magistrate and it is only then that the Magistrate acquires jurisdiction to pass orders whether the property seized is to be produced before him or otherwise but not when the seizure is not reported to him vide Shiv Charan v. State of U.P., 1990 (3) Crimes 597 (All). 14. 14. In short, the power to release a vehicle seized under Section 207 of the Act is upon the transport authority but when the seizure is reported to the Magistrate, he may acquire the power to deal with it in view of Section 457 Cr.P.C. and not otherwise, meaning thereby that the Magistrate has no authority of law to act under Section 457 Cr.P.C in the absence of any report by the detaining/seizing authority. 15. In view of the aforesaid facts and circumstances, as the detention and seizure of the vehicle has been reported to the Chief Judicial Magistrate, the petitioner may either apply to the transport authority for release of the vehicle as contemplated under Section 207 (2) of the Act or before the Chief Judicial Magistrate/Magistrate concerned under Section 457 Cr.P.C. 16. In view of the above remedies available to the petitioner for getting his vehicle released, we do not consider it fit to exercise our discretionary jurisdiction so as to direct the release of the vehicle at this stage. 17. The petition stands dismissed with the above observation.