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2019 DIGILAW 1098 (ALL)

Virendra Gupta v. State Of U. P.

2019-04-26

BALA KRISHNA NARAYANA, GHANDIKOTA SRI DEVI

body2019
JUDGMENT : Hon'ble B.K. Narayana, J. 1. Heard Sri Amit Kumar Singh, learned counsel for the applicant in revision and Smt. Manju Thakur, learned A.G.A.-I for the State. 2. Factual matrix of the matter is being quickly summed up as hereunder :- Virendra Gupta is admittedly the registered owner of a Bolero MUV bearing registration no. UP 53 AF 2145, hereinafter referred to as the vehicle. The vehicle was seized by the police on 01.03.2018 pursuant to information received from a police informer that in the brick kiln of one Kripa Shankar Rai, illicit country-made adulterated liquor was being brewed and that a Bolero MUV was parked there with a consignment of liquor that would soon by transported to some place for sale. Acting on the aforesaid tip off, the police party raided the aforesaid brick kiln and found the driver seated in the vehicle parked in the brick kiln. The police party surrounded the vehicle although the driver and the other men sitting inside the vehicle managed to escape but two others who were loading ready liquor onto the vehicle, were arrested. The arrested persons disclosed their names as Mata Deen Yadav and Pankaj Gupta. The vehicle along with the consignment of liquor was also seized. Chief Judicial Magistrate, Mau rejected the application on the ground that since confiscation proceeding pertaining to the vehicle u/s 72 (2) of the U.P. Excise Act hereinafter referred to as the 'Act' were in progress, it was not proper in the interest of justice to release the vehicle in favour of the revisionist. 3. Aggrieved, the applicant assailed the order passed by the Chief Judicial Magistrate, Mau before this Court by means of this application in revision. Learned counsel for the applicant apart from challenging the order impugned on numerous grounds, specifically assailed the impugned order on the ground that since the applicant was registered owner of the vehicle which was seized during the investigation of a pending criminal case, the same was liable to be released in his favour keeping in view the judgment of the Hon'ble Apex Court referred in Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283. Learned counsel for the applicant apart from placing reliance upon the judgment of the Apex Court in the case of Sunderbhai (supra), also cited two other judgments before the learned Single Judge which are as follows : (1) Nand vs. State of U.P., 1997 (1) AWC 41 (2) Rajiv Kumar Singh vs. State of U.P. and others, 2017 (5) ADJ 351 4. However, the learned Single Judge upon noticing the conflicting views taken by the two learned Single Judges who had decided Nand (supra) and Rajiv Kumar Singh (supra) on one hand and another learned Single Judge who had decided the case of Ved Prakash vs. State of U.P., 1982 AWC 167 All on the issue of the jurisdiction of the Magistrate/Court to release any property which is the subject matter of confiscation proceedings pending before the Collector u/s 72 of the U.P. Excise Act in the exercise of his power u/s 451, 452 or 457 of the Code of Criminal Procedure and that the decision in Sundarbhai Ambalal Desai (supra) was an authority on the general law regarding release of vehicle seized in connection with any criminal case but as the same had not dealt with issue whether the Magistrate had power to release anything in respect of which confiscation proceedings u/s 72 of the 'Act' were pending whereas the Apex Court in the case of State (G.N.C.T. of Delhi) vs. Narender, (2014) 13 SCC 100 had clearly held that the Magistrate will not have any power to release any vehicle seized in a criminal case u/s 451 or 457 of the Code of Criminal Procedure in respect of which confiscation proceedings under the Delhi Excise Act were pending before the Collector in view of the specific power embodied in Section 67 of the Act referred this matter to larger Bench by his order dated 31.08.2018. The question referred to us is being reproduced hereinbelow :- “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 ?” 5. The question referred to us is being reproduced hereinbelow :- “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 ?” 5. Sri Amit Kumar Singh, learned counsel for the applicant has submitted that the ratio of the Apex Court in the case of State (G.N.C.T. of Delhi) (supra) is clearly distinguishable from the numerous decisions of this Court on the ground that in the Delhi Excise Act, there is a provision expressly excluding the jurisdiction of the Court in the matter of release of anything seized or detained under that Act, embodied in Section 61 but there is no provision in the U.P. Excise Act hereinafter referred to as the 'Act' expressly excluding the jurisdiction of the Magistrate/court u/s 451/457 of the Code of Criminal Procedure. He next submitted that the decisions rendered by the learned Single Judge in the cases of Nand (supra) and Rajiv Kumar Singh (supra) will hold the field for the reason of their being later in point of time than the decision rendered in the case of Ved Prakash (supra) in the year 1982. Apart from Nand (supra), Rajiv Kumar Singh (supra) and Sundarbhai Ambalal Desai (supra), learned counsel for the applicant in support of his contentions also placed reliance upon General Insurance Counsel and others Vs. State of Andhra Pradesh and others, Muntazir Vs. State of U.P. and Another, Dilip Sinh Ram Sinh Solanki Vs. State of Gujarat and Mustafa and Another Vs. State of U.P. and Another. 6. Per contra Smt. Manju Thakur, learned A.G.A.-I appearing for the State has submitted that neither Sundarbhai Ambalal Desai (supra) nor Nand (supra) or Rajiv Kumar Singh (supra) can be said to be the authorities on the issue of power of Magistrate to release a vehicle seized in connection with a criminal case in respect of which confiscation proceedings u/s 72 of the U.P. Excise Act are pending before the Collector. She next submitted that the law laid down by the learned Single Judge in the case of Ved Prakash (supra) alone can be said to be an authority on the subject who after taking note of Section 5 of the Code of Criminal Procedure and meticulously analyzing the provision of Section 72 of the 'Act' held that the Magistrate is denuded of his jurisdiction to release anything u/s 457 Cr.P.C. seized in connection with a criminal case in respect of which confiscation proceedings u/s 72 of the 'Act' are pending. She further submitted that Section 72 of the 'Act' clearly excludes the jurisdiction of the Court in the matter of release of anything seized or detained under U.P. Excise Act. The ratio of the Apex Court in the case of State (G.N.C.T. of Delhi) (supra) will squarely apply to the facts and circumstances of the instant case and till the confiscation proceedings u/s 72 of the 'Act' pending before the Collector in respect of the seized vehicle are decided, the same cannot be released. 7. Before proceeding to examine the respective contentions of the learned counsel for the parties, it would be useful to reproduce Sections 5, 451, 452 and 457 of the Code of Criminal Procedure and Section 72 of the U.P. Excise Act as hereunder :- Section 5 of The Code Of Criminal Procedure, 1973 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 9. Sections 451, 452 and 457 of The Code of Criminal Procedure :- 451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes of this section," property" includes- (a) property of any kind or document which is produced before the Court or which is in its custody, (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 452. Order for disposal of property at conclusion of trial. (1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. (2) An order may be made under sub- section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub- section (1) is modified or set aside on appeal or revision. (3) A Court of Session may, instead of itself making an order under subsection (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (5) In this section, the term" property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise. 457. Procedure by police upon seizure of property. 457. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. 10. Thus, what follows after a careful reading of the above-mentioned provisions of the Code of Criminal Procedure is that nothing contained in the Code of Criminal Procedure shall affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force in the absence of a specific provision to the contrary. Section 451 of the Code of Criminal Procedure deals with the manner in which orders pertaining to custody and disposal of property pending trial in certain cases shall be passed. Section 457 of the Code of Criminal Procedure empowers a Magistrate to pass such order as he thinks fit pertaining to the disposal or delivery of property seized by a police officer under the Cr.P.C. in favour of a person entitled to the possession whereof on such conditions as the Magistrate thinks fit. Section 72 of the U.P. Excise Act :- 72. Section 72 of the U.P. Excise Act :- 72. What things are liable to confiscation – (1) Whenever an offence punishable under this Act has been committed- (a) every [intoxicant]2 in respect of which such offence has been committed ; (b) every still, utensil, implement or apparatus and all materials by means of which such offence has been committed ; (c) every [intoxicant]2 lawfully imported, transported, manufactured, held in possession or sold along with or in addition to any [ intoxicant]2 liable to confiscation under clause (a) ; (d) every receptacle, package and covering in which any [intoxicant]2 as aforesaid or any materials, still, utensil, implement or apparatus is or are found, together with the other contents (if any ) of such receptacle or package ; and (e) every animal, cart, vessel or other conveyance used in carrying such receptacle or package; shall be liable to confiscation. 3[(2) Where anything or animal is seized under any provision of this Act and the Collector is satisfied for reasons to be recorded that an offence has been committed due to which such thing or animal has become liable to confiscation under sub-section (1), he may order confiscation of such thing or animal whether or not a prosecution for such offence has been instituted : Provided that in the case of anything (except an intoxicant)or animal referred to in sub-section (1), the owner thereof shall be given an option to pay in lieu of its confiscation such fine as the Collector thinks adequate not exceeding its market value on the date of its seizure. (3) Where the Collector on receiving report of seizure or on inspection of the seized thing, including any animal, cart, vessel or other conveyance, is of the opinion that any such thing or animal is subject to speedy wear and tear or natural decay or it is otherwise expedient in the public interest so to do, he may order such thing (except an intoxicant) or animal to be sold at the market price by auction or otherwise. (4) Where any such thing or animal is sold as aforesaid, and – (a) no order of confiscation is ultimately passed or maintained by the Collector under sub-section (2) or on review under sub-section (6); or (b) an order passed on appeal under sub-section (7) so requires; or (c) in the case of a prosecution being instituted for the offence in respect of which the thing or the animal seized, the order of the Court so requires; the sale proceeds after deducting the expenses of the sale shall be paid to the person found entitled thereto; (5) (a) No order of confiscation under this section shall be made unless the owner thereof or the person from whom it is seized is given – I. a notice in writing informing him of the grounds on which such confiscation is proposed ; II. an opportunity of making a representation in writing within such reasonable time as may be specified in the notice ; and III. a reasonable opportunity of being heard in the matter. (b) Without prejudice to the provisions of clause (a), no order confiscating any animal, cart, vessel, or other conveyance shall be made if the owner thereof proves to the satisfaction of the Collector that it was used in caring the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the person-in-charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use. (6) Where on an application in that behalf being made to Collector within one month from any order of confiscation made under sub-section (2), or as the case may be, after issuing notice on his own motion within one month from the order under that sub-section refusing confiscation to the owner of the thing or animal seized or to the person from whose possession it was seized, to show cause why the order should not be reviewed, and after giving him a reasonable opportunity of being heard, the Collector is satisfied that the order suffers from a mistake apparent on the face of the record including any mistake of law, he may pass such order on review as he thinks fit. (7) Any person aggrieved by an order of confiscation under subsection( 2) or sub-section (6) may, within one month from the date of the communication to him of such order, appeal to judicial authority as the State Government may appoint in this behalf and the judicial authority shall, after giving an opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against. (8) Where a prosecution is instituted for the offence in relation to which such confiscation was ordered the thing or animal shall, subject to the provisions of sub-section (4), be disposed of in accordance with the order of the Court. (9) No order of confiscation made by the Collector under this section shall prevent the infliction of any punishment to which the person affected thereby may be liable under this Act.] 11. Section 72 of the U.P. Excise Act stipulates that whenever an offence punishable under the Act has been committed then every thing or article seized in respect of which such offence has been committed, Section 72 of the 'Act' empowers the Magistrate to confiscate the articles enumerated therein which are in any manner connected with any offence punishable under the 'Act'. Having taken note of the relevant provisions of the Cr.P.C. and the U.P. Excise Act, we now proceed to examine whether the Magistrate stands stripped of his power to release anything seized in connection with an offence committed under the Act in view of Section 5 of the Code of Criminal Procedure and the first proviso to sub-section (1), (3) and (4) (a) of Section 72 of the 'Act'. 12. We first proceed to deal with the authorities cited by the learned counsel for the applicant :- 13. In Nand vs. State of U.P., 1997 (1) AWC 41 , it was held as hereunder :- “7. I think it is not proper to allow the truck to be damaged by remaining stationed at police station. Admittedly, the ownership of the truck is not disputed. The State of Uttar Pradesh does not claim its ownership. Therefore, I think it will be proper and in the larger interest of public as well as the revisionist that the revisionist gives a Bank guarantee of Rs. Admittedly, the ownership of the truck is not disputed. The State of Uttar Pradesh does not claim its ownership. Therefore, I think it will be proper and in the larger interest of public as well as the revisionist that the revisionist gives a Bank guarantee of Rs. 2 lakhs before the C.J.M., Kanpur Dehat and files 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 changes nor any variation in the truck.” 14. In Rajiv Kumar Singh vs. State of U.P. And others, 2017 (5) ADJ 351 , it was held as hereunder :- “9. As per the legal propositions aforesaid mentioned, admittedly the revisionist-applicant claimed himself to be the registered owner of the seized vehicle. It also transpires that the F.I.R. was lodged against unknown person, 102 bottle of country-made wine has been recovered from the vehicle but no person was arrested by the police. During investigation name of the revisionist came into the light by the police concerned and the revisionist has been bailed out by the Court concerned. It is important to mention here that till the disposal of the application of the revisionist no any such proceedings were pending before the District Magistrate. It has also been contended by the learned counsel for the revisionist that proceedings under section 72 of the Excise Act has been started after the rejection of the application of the release of the vehicle of the revisionist. It is also the submission of the learned counsel for the revisionist that revisionist is ready to furnish the sureties before the Court concerned. 10. Under such facts and circumstances, I am of the view that it is not proper to allow the vehicle to be damaged by keeping stationed at police station because admittedly the ownership of the vehicle is not in dispute. Neither State of U.P. claimed his ownership over the vehicle. Therefore, I conclude that the impugned order is not sustainable in the eye of law. Its requires interference, the impugned order dated 27.02.2016 is set aside and the case is remanded back to the concerned Magistrate to dispose of it as per law laid down as above. 11. Accordingly, the revision is allowed and order impugned 27.02.2016 is set aside.” 15. Its requires interference, the impugned order dated 27.02.2016 is set aside and the case is remanded back to the concerned Magistrate to dispose of it as per law laid down as above. 11. Accordingly, the revision is allowed and order impugned 27.02.2016 is set aside.” 15. As far as Nand (supra) is concerned, Section 72 of the U.P. Excise Act was not examined by the learned Single Judge while deciding that case. In the case of Rajiv Kumar Singh (supra), the day on which the release application was rejected, no confiscation proceedings u/s 72 of the 'Act' were pending and were started thereafter. In Mustafa (supra), another single Judge of this Court although examined the effect of Section 5 of the Code of Criminal Procedure and Section 72 of the U.P. Excise Act on the power of a Magistrate to release the vehicle u/s 457 Cr.P.C. which was seized on account of it being connected with a case under the 'Act' but since the date on which the application for release was made, the confiscation proceedings stood decided and hence, the issue was left undecided. In the case of Dilipsinh Ramsinh Solanki 10 (supra) and General Insurance Counsel (supra), the issue involved was entirely different from the one which is engaging our attention. Similarly, the Apex Court in Sundarbhai Ambalal Desai (supra) was dealing with a case in which challenge was to an order of police remand for the petitioners granted to the prosecuting agency, where the petitioners were police personnel involved in offences punishable under Sections 429, 420, 465, 468, 477A and 114 I.P.C. on the charges that they had committed offences for a period of time involving replacement of valuable articles retained as case property by other spurious articles, misappropriation of money also seized in connection with cases, unauthorized auction of property seized and kept at the police station, pending investigation. Thus, the offences which were the subject matter of the case of Sundarbhai Ambalal Desai (supra) were under the I.P.C. to which the provisions of Section 451 and 457 Cr.P.C. were applicable with full force. The Hon'ble Apex Court in the case of Sundarbhai Ambalal Desai (supra) had neither any occasion to examine the effect of Section 72 of the 'Act' on the power of a Magistrate to release seized properties in view of Section 5 of the Code of Criminal Procedure. The Hon'ble Apex Court in the case of Sundarbhai Ambalal Desai (supra) had neither any occasion to examine the effect of Section 72 of the 'Act' on the power of a Magistrate to release seized properties in view of Section 5 of the Code of Criminal Procedure. Therefore, Sundarbhai Ambalal Desai (supra) can at best be said to be an authority on the general law regarding release of vehicles seized in connection with any criminal case as J. J. Munir, J. has rightly observed in the referring order :- 10. A careful scrutiny of the decision of their Lordships in Sundarbhai Ambalal Desai (supra) clearly indicates that the decision is an authority about the general law regarding release of vehicles seized in connection with any criminal case, but the same does not answer the issue whether in a case where there are special provisions under a local or special Act, like the U.P. Excise Act, relating to seizure and confiscation of vehicles, the powers under Section 451 or for that matter under Section 457, would still be available with the Magistrate pending confiscation proceedings under the special or the local law. In fact, the decision of their Lordships in Sundarbhai Ambalal Desai (supra) arose in the context of a challenge to an order of police remand for the petitioners granted to the prosecuting agency, where the petitioners were police personnel involved in offences punishable under Sections 429, 420, 465, 468, 477A and 114 IPC. The allegations against them were that while working at different police stations, they had committed offences over a period of time involving replacement of valuable articles retained as case property by other spurious articles, misappropriation of money also seized in connection with cases, unauthorized auction of property seized and kept at the police station, pending investigation or trial. In short, the offences that engaged the attention of their Lordships were all offence to which the Code, including the provisions of Sections 451 and 457 wholesomely applied. 16. Thus, in our opinion, none of the authorities relied upon by the learned counsel for the applicant can be said to be authorities on the issue involved in this matter. 17. In short, the offences that engaged the attention of their Lordships were all offence to which the Code, including the provisions of Sections 451 and 457 wholesomely applied. 16. Thus, in our opinion, none of the authorities relied upon by the learned counsel for the applicant can be said to be authorities on the issue involved in this matter. 17. On the other hand, the learned Single Judge who had decided the case of Ved Prakash (supra) had after very carefully examining the provisions of Section 72 of the 'Act' as well as Section 5 of the Code of Criminal Procedure had in paragraph 5 to 9 of the aforesaid judgment held as hereunder :- "5. Learned Counsel for the applicant urged that even accepting that the Collector has complete powers to deal with the property seized in connection with the commission of an offence under the U.P. Excise Act, the power of the Magistrate, before whom the prosecution is pending, is not taken away and if the Magistrate exercises his jurisdiction to pass an order under section 457 CrPC it will prevail. In other words the argument is that the jurisdiction of the Magistrate under Section 457 CrPC shall override the jurisdiction conferred on the Collector under section 72 of the U.P. Excise Act. The argument fails to impress me. 6. Section 5 of the Code of Criminal Procedure reads as follows: "Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being inforce." 7. There can be no controversy about the fact that the U.P. Excise Act is a "local law" within the meaning of that expression as used in Section 5 of the Criminal Procedure Code. Section 72 of that Act prescribes a special form of procedure for dealing with the property seized under the Excise Act and confers power or jurisdiction on the Magistrate to deal with the same. In view of the clear provisions contained in Section 5 of the Criminal Procedure Code, the provision contained therein regarding the disposal of property, can be used only to the extent they are not inconsistent with section 72 of the U.P. Excise Act. In view of the clear provisions contained in Section 5 of the Criminal Procedure Code, the provision contained therein regarding the disposal of property, can be used only to the extent they are not inconsistent with section 72 of the U.P. Excise Act. Sub-section (4)(c) of Section 72 says that if anything is sold under Sub-section (3) the sale proceeds shall be disposed of in accordance with such order as the Magistrate trying the case may choose to pass at the end. Sub-section (8) provides that where the prosecution is instituted for the offence in relation to which such confiscation was ordered, the thing or animal shall, subject to the provisions of Sub-section (4), be disposed of in accordance with the order of the Court. It would mean that if the article in question is sold by the Collector under sub-section (3), then the court seized of the criminal case shall have jurisdiction to pass orders with respect to the sale proceeds only. If, however, the Collector has merely ordered confiscation under sub-section (1) and the sale of the property has not taken place, the Magistrate will also have jurisdiction, at the end of the trial, to pass orders regarding the disposal of the property and, despite the order of confiscation by the Collector, the property shall be handed over to such party as may be directed by the Court. 8. There can be yet another situation in which the order of the Magistrate will prevail. It will be where the criminal case is disposed of by the court before the Collector is able to pass final orders under subsection (1) of Section 72. In such a case, in my opinion, the court shall have the jurisdiction to pass such orders regarding the disposal of property as it may deem fit and, thereafter, the Collector shall have no jurisdiction to further deal with the property. 9. It may be argued that since the words used in sub-section (8) "where a prosecution is instituted for the offence in relation to which such confiscation was ordered" indicate that sub-section (8) shall come into play only after the confiscation has been ordered. To my mind, however, it cannot be so. 9. It may be argued that since the words used in sub-section (8) "where a prosecution is instituted for the offence in relation to which such confiscation was ordered" indicate that sub-section (8) shall come into play only after the confiscation has been ordered. To my mind, however, it cannot be so. If even after the confiscation it is the order of the Court which shall be decisive regarding the custody or disposal, where is the sense in continuing proceedings for confiscation after final orders are passed by the court, including orders regarding custody and disposal of property. Sub-section (8) has been couched in the existing language only because the legislature thought that the proceedings before the Collector being of summary nature, he shall always be able to finalise the same before the court is able to decide the criminal case." 18. In the recent case decided by the Hon'ble Supreme Court in State (G.N.C.T. of Delhi) vs. Narender, (2014) 13 SCC 100 which was a case in which release of vehicle and the consignment of liquor loaded thereon seized in connection with an offence committed under the Delhi Excise Act was sought, the applications were rejected by the Metropolitan Magistrate on the ground that he did not possess any such power. Aggrieved, an application u/s 482 Cr.P.C. was filed before the Delhi High Court challenging the order of the Magistrate. The High Court by the order dated 28.11.2011 directed the vehicle to be released in favour of the registered owner on furnishing security to the satisfaction of the Metropolitan Magistrate. The matter was taken up to the Apex Court at the instance of the State by means of Criminal Appeal No. 25 of 2014 which was allowed and the Apex Court after taking note of Section 23 of the Delhi Excise Act held as hereunder :- “23……….The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under Cr.P.C. has to give way. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under Cr.P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided. 19. The aforesaid argument of the learned counsel for the applicant at the first instance may appear to be attractive but upon a perusal of Section 72 of the 'Act' and Section 23 of the Delhi Excise Act, the aforesaid argument is liable to be rejected. Section 23 of the Delhi Excise Act expressly excludes the power of a Magistrate to release anything seized or detained u/s 457 Cr.P.C. if confiscation proceedings in respect of such seized articles are pending before the Collector. Section 72 of the 'Act' which is admittedly a local act does not contain any provision for release of anything seized or detained in connection with an offence committed under the Act in respect of which confiscation proceedings are pending. In fact the sub-section (1) to sub-section (4) of Section 72 of the 'Act' prescribe the manner in which anything seized in connection with an offence committed under the 'Act' and in respect of which confiscation proceedings u/s 72 of the 'Act' are pending, shall be dealt with. In fact the sub-section (1) to sub-section (4) of Section 72 of the 'Act' prescribe the manner in which anything seized in connection with an offence committed under the 'Act' and in respect of which confiscation proceedings u/s 72 of the 'Act' are pending, shall be dealt with. Section 72 of the 'Act' does not contain any provision indicating that such seized property may be released by the Magistrate in the exercise of his power u/s 457 Cr.P.C. The provisions contained in sub-sections (1) to (4) of Section 72 of the 'Act', clearly denudes the Magistrate of his power to pass any order u/s 457 Cr.P.C. for release of anything seized in connection with an offence purporting to have been committed under the 'Act'. 20. In view of the foregoing discussion, we find that the case of Ved Prakash (supra) lays down the correct law on the subject matter of this reference and neither Nand vs. State of U.P., 1997 (1) AWC 41 or Rajiv Kumar Singh vs. State of U.P. and others, 2017 (5) ADJ 351 nor Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283 can be said to be authorities on the power of the Magistrate to release anything seized or detained in connection with an offence committed under the 'Act' in respect of which confiscation proceedings u/s 72 of the U.P. Excise Act are pending before the Collector. 21. The reference is answered accordingly. Let this matter be now placed before the learned Single Judge for decision on merits.