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Allahabad High Court · body

2020 DIGILAW 232 (ALL)

Vikas Kumar v. State of U. P.

2020-01-21

SHAMIM AHMED

body2020
JUDGMENT : 1. This application u/s 482 Cr.P.C. has been filed by the applicant invoking the inherent jurisdiction of this Court with the prayer for quashing the order dated 10.06.2019 passed by Incharge Judicial Magistrate, Court No.11 Deoria in Misc. Case No.171 of 2019 (State Vs. Satya Prakash Mall), arising out of Case Crime No.318 of 2018, under Sections 419, 420, 467, 468, 471, 272 I.P.C. and under Sections 60, 63, 72 of Excise Act, Police Station Rudhrapur, District Deoria. 2. Further prayer has also been made to quash the order dated 18.07.2019 passed by Additional District and Sessions Judge, Court No.7, Deoria in Criminal Revision No.93 of 2019 (Vikas Kumar Vs. State of U.P.) filed against the aforesaid order of learned Incharge Judicial Magistrate, Deoria, rejecting the release application which has been confirmed by the learned revisional court. 3. Counter and rejoinder affidavits have been exchanged between the parties. 4. Heard learned counsel for the applicant, learned A.G.A. for the opposite parties and perused the record. 5. Learned counsel for the applicant has submitted that the applicant is the registered owner of vehicle/Mahindra Scorpio bearing Chasis No. MA1TA2TDKJ2J39166 and Engine No.TDJ4J79127, in this regard sale certificate and trade certificate were issued by the agency. Thereafter, the applicant has applied for registration of the said vehicle before the Regional Transport Officer, Siwan and when the vehicle of the applicant was driven by driver, while going to Deoria for treatment of his relative, then police of Police Station Rudhrapur, District Deoria caught the vehicle and detained at Police Station Deoria without any reason. When the applicant came to know about this incident he went to police station to ensure about the incident but the vehicle of the applicant was not there and it was detained by the police to some other place keeping the vehicle in their custody. 6. Learned counsel for the applicant further argued that the applicant has been falsely implicated in the case to extract illegal gratification from him and after the denial the police, thereafter, lodged an F.I.R. under Sections 419, 420, 467, 468, 471, 272 I.P.C. and under Sections 60, 63, 72 of Excise Act, Police Station Rudhrapur, District Deoria and vehicle was ceased by the police. Learned counsel for the applicant further argued that the applicant was released on bail on 28.01.2019 in respect of the above incident. 7. Learned counsel for the applicant further argued that the applicant was released on bail on 28.01.2019 in respect of the above incident. 7. Learned counsel for the applicant submits that the applicant has moved release application before the learned Magistrate stating therein that he is an agriculturist and was using his vehicle for personal use and when the vehicle was ceased by the police, driver of the applicant was going to Deoria for treatment of his relative and the vehicle was wrongly detained by the police. Learned counsel for the applicant further submits that it was wrongly stated by the police that applicant was transporting the liqueur in the said vehicle. 8. Learned counsel for the applicant further submits that the release application of the applicant was rejected by the learned Magistrate on 10.06.2019 only on the ground that the investigation was going on and the confiscation proceedings under Section 72 of U.P. Excise Act were pending before the District Magistrate, Deoria, therefore, the vehicle cannot be released. Against the order of learned Magistrate, the applicant has filed criminal revision before the Additional District and Sessions Judge, Deoria bearing Case No.93 of 2019 (Vikas Vs. State of U.P.) and the learned revisional court rejected the criminal revision vide order dated 18.07.2019 on the same ground, observing that the confiscation proceedings are pending before the District Magistrate, Deoria, therefore, the vehicle in question cannot be released. 9. Learned counsel for the applicant has submitted that the vehicle is standing in open yard in the police station since long and with the passage of time ultimately it will become junk and after sometime it is not useful for any purpose. Reliance has been placed on the law laid down by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujrat, AIR 2003 SC 638 . 10. Learned counsel for the applicant has further drawn the attention of the Court regarding the provisions of Sections 451 and 457 of Cr.P.C., which is quoted as under:- “451. Order for custody and disposal of property pending trial in certain cases. State of Gujrat, AIR 2003 SC 638 . 10. Learned counsel for the applicant has further drawn the attention of the Court regarding the provisions of Sections 451 and 457 of Cr.P.C., which is quoted as under:- “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. 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.” 11. Learned counsel for the applicant has further submitted that the applicant is ready to comply with all the conditions, which the lower court will impose while releasing the vehicle. Learned counsel for the applicant has further submitted that the applicant is ready to comply with all the conditions, which the lower court will impose while releasing the vehicle. Undisputedly, applicant is the rightful owner of the vehicle, therefore, the vehicle be released in his favour and the impugned orders be quashed. 12. Learned A.G.A. has opposed the application and detailed counter affidavit has been filed. In the counter affidavit it has been stated that the proceedings under Section 72 of the U.P. Excise Act are pending before the District Magistrate, Deoria who is the competent authority to decide this issue whether the vehicle be released or not and the applicant may appear before the District Magistrate and apprise him regarding his grievances. Learned A.G.A. further submits that the vehicle is involved in criminal case under Sections 419, 420, 467, 468, 471, 272 I.P.C. and under Sections 60, 63, 72 of Excise Act and therefore, the vehicle cannot be released in favour of the applicant. 13. In the rejoinder affidavit filed by the applicant, it has been stated by the learned counsel for the applicant that applicant is an innocent person and has been falsely implicated in the case and the vehicle has nothing do with the alleged offence. It was further submitted that no evidence was collected by the investigating officer under Section 17 of the Excise Act and the police personnel cannot lodge a complaint under Excise Act, therefore, the entire proceedings is against the process of law and is liable to be quashed. 14. Learned counsel for the applicant has contented that mere pendency of confiscation proceedings before the District Magistrate under Section 72 of the U.P. Excise Act shall not operate as a bar against the release of vehicle seized under Section 60 of the U.P. Excise Act. 15. After having heard the learned counsel for the parties, I have carefully gone through the relevant legal provisions and the judgments rendered by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (supra) and the judgment passed by this court in various cases under the U.P. Excise Act. 16. The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai, AIR 2003 SC 638 (supra) in para 17 and 21 has been pleased held as under:- "17. 16. The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai, AIR 2003 SC 638 (supra) in para 17 and 21 has been pleased 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 application for return of such vehicles. 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.” 17. In Nand Vs. State of U.P., 1996 Law Suit (All) 423 this Court has observed that pendency of the confiscation proceedings under Section 72 of the U. P. Excise Act is not a bar for release of the vehicle which is required for the trial under Section 60 of the U. P. Excise Act. It has been clearly observed by this Court in para 7 that:- "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.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." 18. This Court further has held in the case of Jai Prakash Vs. This Court further has held in the case of Jai Prakash Vs. State of U.P., 1992 AWC 1744 that mere pendency of confiscation proceedings before the Collector is no bar to release the vehicle. 19. In Kamaljeet Singh Vs. State of U.P., 1986 U.P. Cri. Ruling 50 (Alld), the same view was taken by this court that pendency of confiscation proceedings shall not operate as bar against the release of vehicle seized u/s 60 of Excise Act. 20. In the opinion of this Court, it is not disputed that the power under Section 451 of Cr.P.C. is not properly and widely used by the court below while passing the orders. The power conferred under Section 451 of Cr.P.C. be exercised by the court below with judicious mind and without any unnecessarily delay. So that the litigant may not suffer, merely keeping the article in the custody of the police in the open yard will not fulfill any purpose and ultimately it result the damage of the said property. The owner of the property be allowed to enjoy the fruits of the said property for the remaining period for which the property is being made. 21. Further in the opinion of this Court, the procedure as contemplated under Section 457 of Cr.P.C. be also followed promptly, so that the concerned Magistrate may take prompt decision for disposal of such properties and be released in favour of the entitled person of the said property, keeping the said property in the custody will not solve any purpose and that gives a mental and financial torture to the owner of the said property which is also against the law and against the principles of natural justice. 22. As per the legal propositions mentioned above and keeping in view this fact that undisputedly the applicant is the registered owner of the seized vehicle and the ownership of the vehicle is not in dispute neither the State or any other person has claimed their ownership over the vehicle, therefore, no useful purpose will be served in keeping the vehicle stationed at the police station in the open yard for a long period allowing it to be damaged with the passage of time. 23. In view of the above facts and circumstances of the case, the impugned orders are not sustainable in the eyes of law and require interference by this court. 24. 23. In view of the above facts and circumstances of the case, the impugned orders are not sustainable in the eyes of law and require interference by this court. 24. Accordingly, the application u/s 482 Cr.P.C. is allowed and the impugned order dated 10.06.2019 & order dated 18.07.2019 are set aside and the case is remitted back to the concerned Magistrate to decide the release application of the applicant afresh within a period of two months from the date of certified copy of this order is filed before the court below in the light of the aforesaid observations and the law as discussed above.