# Abhishek Agarwal v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-13
- **Case number:** Matters U/A 227 No. 5204 of 2021
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-agarwal-v-state-of-u-p-ors-48504
- **Pages:** 5

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 451 - Powers under
Section 451 of Cr.P.C. should be exercised
expeditiously and judiciously. it is a general rule
that case property should be released. It should
not to be retained in custody of the court or the
police for any time longer than what is
absolutely necessary and it should be directly or
indirectly disposed of and court must pass order
for its disposal. Further where the property is
subject to speedy and natural decay, resulting in
diminishing its value should not be kept lying
unattended.
5 All. Abhishek Agarwal Vs. State of U.P.& Ors.
1361
Petitions Allowed. (E-12)

List of Cases cited:-

Sundar Bhai-Amba Lal Desai Vs St. of Guj.,
reported in 2002 (10) SCC 283

## Text

1360 INDIAN LAW REPORTS ALLAHABAD SERIES
where such alternative remedy is available
before civil courts in terms of the
provisions of Code of Civil Procedure, and

(ii) cases where such alternative
remedy is available under special enactments
and/or statutory rules and the fora provided
therein
happen
to
be
quasi-judicial
authorities and tribunals. In respect of cases
falling under the first category, which may
involve suits and other proceedings before
civil courts, the availability of an appellate
remedy in terms of the provisions of CPC,
may have to be construed as a near total bar.
Otherwise, there is a danger that someone
may challenge in a revision under Article
227, even a decree passed in a suit, on the
same grounds on which Respondents 1 and 2
invoked the jurisdiction of the High Court.
This is why, a 3-member Bench of this Court,
while overruling the decision in Surya Dev
Rai v. Ram Chander Rai (Supra), pointed out
in Radhey Shyam v. Chhabi Nath(Supra) that
"orders of civil court stand on different
footing from the orders of authorities or
tribunals or courts other than judicial/civil
courts".

The
Supreme
Court
further
observed in paragraph 13 thus:- "Therefore
wherever the proceedings are under the Code
of Civil Procedure and the forum is the civil
court, the availability of a remedy under the
CPC, will deter the High Court, not merely as
a measure of self-imposed restriction, but as
a matter of discipline and prudence, from
exercising its power of superintendence
under the Constitution. Hence, the High
Court ought not to have entertained the
revision under Article 227 especially in a
case where a specific remedy of appeal is
provided under the Code of Civil Procedure
itself."

12. This Court is only concerned with
the challenge raised to an order on an
application moved under Order 39 Rule 1
and 2 for Temporary Injunction in a Suit for
Permanent
Injunction
filed
by
the
plaintiff/petitioner and the grounds that
have been mentioned in this writ petition
and which have been read out in their
entirety by the learned Senior Counsel, Sri
Prashant Chandra can be raised in appeal
which is provided under Order 43 Rule 1(r)
of the Civil Procedure Code.

13. This petition is dismissed as not
maintainable.
----------
(2022)05ILR A1360
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Matters U/A 227 No. 5202 of 2021 (Criminal)
connected with
Matters U/A 227 No. 5204 of 2021

Abhishek Agarwal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Swetashwa Agarwal, Sri Dinkar Lal

Counsel for the Respondents:
G.A.

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 451 - Powers under
Section 451 of Cr.P.C. should be exercised
expeditiously and judiciously. it is a general rule
that case property should be released. It should
not to be retained in custody of the court or the
police for any time longer than what is
absolutely necessary and it should be directly or
indirectly disposed of and court must pass order
for its disposal. Further where the property is
subject to speedy and natural decay, resulting in
diminishing its value should not be kept lying
unattended.
5 All. Abhishek Agarwal Vs. State of U.P.& Ors.
1361
Petitions Allowed. (E-12)

List of Cases cited:-

Sundar Bhai-Amba Lal Desai Vs St. of Guj.,
reported in 2002 (10) SCC 283
(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. These two petitions Under Article
227 of the Constitution of India are being
heard together and are disposed of by a
common order.

2. Heard Sri Swetashwa Agarwal,
learned counsel for the petitioners, Ms.
Sushma Soni, learned A.G.A. for the State
and perused the record

3. These petitions Under Article 227 of
the Constitution of India have been filed with
the following prayers:

(I) Issue an appropriate order or
direction setting aside the impugned order
dated 17.9.2021 passed by the Additional
Sessions Judge, Court No. 8, Bulandshahar in
Criminal Revision No. 101 of 2021 Abhishek
Agarwal Vs. State of U.P. as well as
impugned order dated 8.7 2021 passed by the
C.J.M. Bulandshahar in Case Crime No. 271
of 2021 State Vs. Abhishek Agarwal, under
section 420 IPC and Section 11/12 U.P.
Sheera Niyantran Adhiniyam, 1964, P.S.
Kotwali Dehat, District Bulandshahar.

(ii) Issue an appropriate order or
direction
to
the
court
below/C.J.M.
Bulandshahar to release the molasses in
question weighing 9492 quintal, seized by the
O.P. No. 2 from the petitioner's firm-Khiansh
Enterprises in connection with Case Crime
No. 271 of 2021, under section 420 IPC and
Section
11/12
UP.
Sheera
Niyantran
Adhiniyam, 1964, P.S. Kotwali Dehat,
District Bulandshahar.

4. In brief the facts are that an FIR
Crime No. 271 of 2021, under section 420
IPC and 11/12 U.P. Molasses Control Act,
1964 was registered against the petitioners
and one Tushar Agarwal and Sunil Kumar.
The allegations of the FIR are that on
4.4.2021 a secret information was received
by the complainant regarding storage of
molasses, pursuant whereto a raid was
conducted by the Excise Officials and upon
asking for the molasses related documents, no
license or permit could be produced, instead
four bills of purchase of Khansari Molasses
weighing 755 quintal could only be
produced. The molasses stored in the tanks
appeared to be much more and there was an
apprehension
of
the
same
being
manufactured by Sugar Mill and 9492 quintal
of molasses was found stored in the storage
tanks. Samples of molasses was taken at the
spot as per the relevant Rules. One of the
sample was made available to one Tushar at
the factory premises and one sample was sent
to the Regional Lab for examination and the
seized
molasses
was
given
in
the
custody/superdagi of Unit Representative
Tushar Agarwal, directing him not to use or
sale the same and that the provisions of UP.
Sheera Niyantran Niyamawali, 1974 and U.P.
Sheera Nivantran Adhiniyam, 1964 have
been violated, for which the first information
report is being registered. After investigation
charge-sheet has been submitted.

5. Learned counsel for the applicants
submitted that the Excise

Officials
have
initiated
the
prosecution of the petitioners on their own
whims and fancies without there being any
offence committed by them. Learned
counsel further submitted that all the bills
of purchase, GST Invoices and details of
Stock Register were duly furnished by the
petitioners to the Investigating Officer
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
during the course of investigation regarding
the
trading
of
Khandsari
Molasses
undertaken by them, but no heed was
deliberately
paid
to
the
same.
The
petitioners also brought on record the GST
Registration Certificate of the firm Khiansh
Enterprises, GST Bills and Returns from
Jan. 2021 to March 2021, E. Way Bills,
GST Bills and Stock Register relating to
the purchase and sale of Khandsari
Molasses, in support of the release
application moved by them. Perusal of the
aforesaid bills and invoices would reveal
that the petitioners have been trading with
various firms across State of U.P in respect
of
sale
and
purchase
of
Khandsari
Molasses, upon which requisite taxes were
duly paid.

It is further submitted that neither
the Investigating Officer nor the Excise
Officials disputed any of the Bills or
Invoices or Stock Details furnished by the
petitioners
along
with
the
release
application regarding sale and purchase of
Khandsari Molasses. However, relying
upon the Lab Test Report of the Excise
Department, it was alleged that the
Molasses in question has been found to be
manufactured by Sugar Mill. The aforesaid
Lab Report is of no consequence, once the
Excise Department got the sample tested
through its own Regional Lab, despite a
request
having
been
made
by
the
petitioners to get the sample tested through
the Lab of Central Government. As per the
information obtained under the R.T.I. Act
from the National Sugar Institute, Kanpur,
it was disclosed that:-

(i) It cannot be determined by
chemical examination as to whether the
sample of Molasses pertains to Khandsari
Molasss or that of Sugar Mill.

(ii) The Institute/National Sugar
Institute has not been informed of any
yardstick
of
differentiating
between
Molasses obtained through Khandsari or
Sugar Mill.

The learned Magistrate illegally
and
erroneously
rejected
the
release
application of the petitioners. It is also
contended that under section 16 of the Act the
offence is compoundable. There is no bar for
transportation of the molasses within the
State. No proceedings for forfeiture of the
molasses have been initiated by the Excise
Department. The revisional court also failed
to consider the aforesaid facts and legal
points and has dismissed the revision. Both
the courts below have failed to exercise
jurisdiction vested in its.

8. Learned A.G.A. contended that
petitioners are accused in the case and
charge-sheet has been submitted against
them. 9492 quintal molasses was found in the
possession of petitioners and they could not
show the relevant papers. The molasses was
obtained
from
sugar
factory
in
an
unauthorized manner. The molasses has been
seized and is a case property. Hence, it can
not be released in favour of the petitioners in
the case. There is no

9. It is undisputed that the molasses has
been taken from possession of the petitioners.
Case U/s 420 IPC and 11/12 U.P Sheera
Niyantran Adhiniyam, 1964, has been
registered against the petitioners. The learned
Magistrate has rejected the application on the
ground that under the Provision of Section 8
of U.P. Sheera Niyantran Adhiniyam, 1964
no person can store or transport the molasses
without permission or license of the
Controller and the petitioners have failed to
file any license or permission for storage or
transportation of the molasses.

Section
8
U.P.
Sheera
Niyantran Adhiniyam, 1964 provides as
follows:
5 All. Abhishek Agarwal Vs. State of U.P.& Ors.
1363

"(1) The Controller may specify
the order in which storage tank in a factory
shall be filled or emptied and such
direction shall be binding on the occupier
of the sugar factory.

(2) No molasses produced or
stored in a factory in a particular molasses
year shall be mixed with any molasses of
the previous molasses year without the
previous permission of the Controller in
writing.

(3) No molasses shall be stored in
a factory until it has been weighed or
measured.

(4) Occupier of a sugar factory
shall take adequate safeguards to see that
the wastage in the storage of molasses in a
year does not exceed two per cent of the
total quantity stored. In case the wastage
exceeds two per cent, the occupier shall be
liable to penalties imposed under the Act,
for the contravention of the rule: Provided
that if it is proved to the satisfaction of the
Controller that the wastage or deficiency in
excess of the above prescribed limit has
been caused by accident or any other
unavoidable cause, the occupier shall not
be liable to penalty.

10. The aforesaid provision is
applicable to the sugar factories. The case
of the petitioners is that they are sole
proprietor of Khiansh Enterprises and said
firm
is
duly
registered
with
GST
Department. The firm is engaged in trading
of Khandsari Molasses through valid bills
of purchase upon the payment of requisite
taxes. Petitioner have filed all the bills of
purchase sale and also copy of the stock
register. Learned A.G.A has not pointed out
any discrepany in it. No other person is
claiming the impugned molasses.

In case of Sundar Bhai-Amba
Lal Desai Vs. State of Gujrat, reported
in 2002 (10) SCC 283 the Hon'ble
Supreme Court has observed as follows:

"In our view, the powers under
section 451 Cr.P.C. should be exercised
expeditiously and judiciously. It would
serve various purposes, namely:

"1. owner of the article would not
suffer because of its remaining unused or
by its misappropriation;

2. court or the police would not
be required to keep the article in safe
custody;

3. if the proper panchnama before
handing over possession of the article is
prepared, that can be used in evidence
instead of its production before the court
during the trial. If necessary, evidence
could also be recorded describing the
nature of the property in detail;

and

4. this jurisdiction of the court to
record evidence
should be exercised
promptly so that there may not be further
chance of tampering with the articles."

11. The offence is also compoundable
in nature. In view of the law laid down it is
a general rule that case property should be
released. It should not to be retained in
custody of the court or the police for any
time longer than what is absolutely
necessary and it should be directly or
indirectly disposed of and court must pass
order for its disposal. Further where the
property is subject to speedy and natural
decay, resulting in diminishing its value
should not be kept lying unattended.

12. Considering all the facts and
attending circumstances of the case it was
just and proper on the part of the
Magistrate to release the molasses in favour
of the petitioners after taking adequate
surety bond after getting its value assessed
by a competent authority and learned
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate
may
have
imposed
other
conditions which it thinks necessary.
Learned Magistrate has failed to exercise
his jurisdiction properly. The learned
revisional
court
has
also
failed
to
appreciate the facts and law on the point so
both the orders are not justified and are
liable to be set-aside.

13. The petitions Under Article 227 of
the Constitution of India are hereby
allowed.
The
impugned
order
dated
8.7.2021 passed by C.J.M. Bulandshahar in
Case Crime No. 271 of 2021 State Vs.
Abhishek Agarwal, under section 420 IPC
and
11/12
U.P
Sheera
Niyantran
Adhiniyam, 1964, PS. Kotwali Dehat,
District Bulandshahar and order dated
17.9.2021 passed by Additional Session
Judge, Court No. 8. Bulandshahar in
Criminal Revision No. 101 of 2021
Abhishek Agarwal Vs. State of UP are
hereby set-aside. The learned C.J.M.
Bulandshahar is directed to release the
molasses
in
question
in
favour
of
petitioners after taking personal bonds and
one surety bond of adequate amount, The
learned Magistrate may got the value of the
molasses assessed by any competent
authority and fix the amount of personal
bond and surety bond accordingly and may
also impose other conditions he deems just
and necessary.
----------
(2022)05ILR A1364
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.04.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matters U/A 227 No. 33492 of 2019

Smt. Bachchi Devi ...Petitioner
Versus
3rd Addl. District Judge Balrampur & Ors.
 ...Respondents

Counsel for the Petitioner:
Virendra Mishra, Shraddha Mishra

Counsel for the Respondents:
Mohd. Ali

A. In an Appeal unless the statute restricts the
power of the Appellate Court, it has, as a
general rule, the same powers as are open to
the original authority or court from whose
decision the appeal is preferred and a court of
appeal has no fetters on it to decide all
questions of law and fact which crop up in the
case but ordinarily, a court of 11 appeal will not
tend to interfere with the exercise of discretion
by the lower court and substitute for it, its own
discretion unless of course, it is found by the
court
of
appeal
that
the
original
court
misdirected itself on any question of law or it
failed to consider the relevant factors governing
the exercise of discretion or its discretion is
otherwise vitiated by reason of mis-construction
of any statutory provision or on account of
misreading of any evidence on record.

B.
The
relief
of
interlocutory
mandatory
injunctions can be granted when
(1).The plaintiff has a strong case for trial. That
is, it shall be of a higher standard than a prima
facie case that is normally required for a
prohibitory injunction. (2) It is necessary to
prevent irreparable or serious injury which
normally cannot be compensated in terms of
money. (3) The balance of convenience is in
favour of the one seeking such relief."

C. Supervisory jurisdiction conferred upon the
High Court under Article 227 is confined only to
see whether an inferior court or Tribunal has
proceeded
within
the
parameters
of
its
jurisdiction. In its exercise of jurisdiction under
Article 227, the High Court does not act as
Tribunal and it is not open for it to review the
order or reassess the evidence upon which the
Trial Court has passed an order.
D. the grant of mandatory injunction is not
prohibited in all cases if a clear prima facie
material is placed which justifies a finding that