# Ajay Kumar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 387
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-17
- **Case number:** Application u/s 482 No. 16161 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-state-of-u-p-anr-opp-parties-49957
- **Pages:** 6

## Headnote

Law
-Code
of
Criminal
Procedure, 1973 - Section 482 - U.P.
Excise Act,1910 -Sections 60, 63 & 72Challenge to-rejection order regarding
release of vehicle-applicant is the owner
of vehicle and the three relatives had
taken the applicant's vehicle on rentWhen the applicant came to knowledge
about the incident after two months he
lodged FIR against his relative-When the
release
application
and
the
revision
against the rejection order of CJM were
pending, the impugned vehicle was under
the
process
of
confiscation-Later
confiscation proceeding has become final
at the end of District Magistrate and the
vehicle had been auctioned-In this case,
since no corpus is into existence for
release hence this application has also
become infructuous-Thus, the impugned
order passed by the learned CJM and
revisional court is factually and legally
correct-Section 72 of the Act does not
contain any provision indicating that such
seized property may be released by the
magistrate in exercise of his power u/s
457 CrPC as sub section (1) to (4) of
Section 72 clearly denudes the magistrate
of his power to pass any order u/s 457
CrPC for release of anything seized in
connection of an offence purporting to
388 INDIAN LAW REPORTS ALLAHABAD SERIES
have been confiscated under the Act.(Para
1 to 18)

The application is dismissed. (E-6)

List of cases cited:

## Text

4 All. Ajay Kumar Vs. State of U.P. & Anr.
387
or the other, counsel for the accused could
not
cross-examine
the
prosecution
witnesses, the concerned court may re-call
such
witnesses
for
cross-examination
exercising the power under Section 311
Cr.P.C.

27. On the basis of above discussions
it is concluded that the accused persons
have been illegally denied the opportunity
of cross-examination by the then trial
judge. It is the duty of the court to examine
the essential material witness in due course
of law. The cause of justice would only be
served
after
examining
the
material
witnesses in right perspective after giving
due opportunity of cross-examination to the
defence.

28. On the above discussion, this
Court comes to the conclusion that the
learned trial court had committed manifest
error during the course of trial in recording
the evidence and has proceeded with the
case in harried manner in violation of the
principles of natural justice and fair trial.
The impugned order is not sustainable in
the eye of law and deserves to be quashed.

O R D E R

(a) This Application U/s 482 Cr.P.C is
allowed.

(b) The impugned order dated 28th
January, 2016, passed by the concerned
trial court is hereby quashed.

(c) The learned trial court is directed
to re-call the victim P.W. 2 for her crossexamination on behalf of all the three
accused persons.

(d) Let a certified copy of this order be
sent to the concerned court for its
compliance immediately.
----------
(2023) 4 ILRA 387
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 16161 of 2022

Ajay Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Umesh Kumar

Counsel for the Opp. Parties:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973 - Section 482 - U.P.
Excise Act,1910 -Sections 60, 63 & 72Challenge to-rejection order regarding
release of vehicle-applicant is the owner
of vehicle and the three relatives had
taken the applicant's vehicle on rentWhen the applicant came to knowledge
about the incident after two months he
lodged FIR against his relative-When the
release
application
and
the
revision
against the rejection order of CJM were
pending, the impugned vehicle was under
the
process
of
confiscation-Later
confiscation proceeding has become final
at the end of District Magistrate and the
vehicle had been auctioned-In this case,
since no corpus is into existence for
release hence this application has also
become infructuous-Thus, the impugned
order passed by the learned CJM and
revisional court is factually and legally
correct-Section 72 of the Act does not
contain any provision indicating that such
seized property may be released by the
magistrate in exercise of his power u/s
457 CrPC as sub section (1) to (4) of
Section 72 clearly denudes the magistrate
of his power to pass any order u/s 457
CrPC for release of anything seized in
connection of an offence purporting to
388 INDIAN LAW REPORTS ALLAHABAD SERIES
have been confiscated under the Act.(Para
1 to 18)

The application is dismissed. (E-6)

List of cases cited:

1. Mustafa Vs St. of U.P. (2019) AIR SC 3949

2. Virendra Gupta Vs St. of U.P. (2019) 108 ACC
438

3. Sundar Bhai Ambalal Desai Vs St. of Guj.
(2002) law suit SC 1346

4. Chandrapal Vs St. of U.P. (2021) 0 Supreme
All 92
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Umesh Kumar, learned
counsel for the applicant and Sri Pankaj
Kumar Tripathi, learned A.G.A. for the
State and perused the material available on
record.

2. This application has been made by
the accused -applicant to quash the order
dated 19.07.2021 passed by Chief Judicial
Magistrate, Etah, in criminal case no. 781
of 2020 and order dated 16.10.2021 passed
by Learned Sessions Judge in criminal
revision no.76 of 2021 rejecting the
application of applicant for releasing his
vehicle no. (U.P 80 CT 3283), in case crime
no. 594 of 2019, U/s 60, 63, 72 of UP.
Excise Act, Police Station Kotwali, District
Etah.

3. In brief, facts of the case are that an
FIR was lodged in case crime no. 594 of
2019, at Police Station Kotwali Dehat, U/s
60, 63, 72 of Excise Act, District Etah. A
copy of the FIR dated 21.12.2019 has been
filed as annexure no.1 to the affidavit. The
applicant is not involved in the said crime
and he never gave consent for the purpose
of the alleged illegal work. The relatives
use the vehicle of the applicant for own
purposes.

4. The applicant filed an application
for the release of his vehicle no. UP 80 CT
3283 on 4.8.2020 before the C.J.M, Etah
which is in the custody of police station
Kotwali Dehat, u/s 60, 63, 72 of Excise
Act, District Etah. The application dated
4.8.2020 is annexure no.2 to the affidavit.

5. The learned C.J.M rejected the
applicant's application without considering
the fact on 19.7.2021, the certified copy of
the order has been filed herewith as
annexure no. 3. The applicant filed criminal
revision on 16.10.2021 in which he had
disclosed the entire facts but the same was
also rejected by Learned District and
Sessions Judge on the same day.

6. The FIR was not lodged against the
applicant Ajay Kumar but against Surendra
Singh, Satish Chandra and Devendra Singh
in case crime no. 367 of 2020, at police
station Iglas, u/s 406, 452, 323, 504 of
IPC., District Aligarh which is annexure no.
5 to the affidavit.

7. Devendra Singh, Surendra Singh
and Satish Chand had taken the applicant's
vehicle on rent in the month of august
2019. The vehicle was run by the aforesaid
persons till the incident and when the
applicant inquired after two months from
the aforesaid persons/relatives regarding
the vehicle, then matter came into the
knowledge that the vehicle is being kept in
police station Kotwali Dehat, Etah. Since
the aforesaid persons are relatives of the
applicant, no suspicion arose and when the
matter came into the knowledge of the
applicant, he started his effort to release the
vehicle. The vehicle was not used by the
4 All. Ajay Kumar Vs. State of U.P. & Anr.
389
applicant in the alleged crime and has no
concern with the alleged persons. The
applicant has also lodged an FIR against his
relatives because they were not giving
information
about
the
vehicle.
The
aforesaid relatives cheated to the applicant
and used the applicants vehicle in the said
crime that was not in the knowledge of the
applicant. The applicant is not involved in
the aforesaid crime and the vehicle is in the
name of the applicant and he is owner of
the vehicle. The applicant was ready to pay
the security before the learned court
imposed by the court at the time of the
release of vehicle. The applicant has
completed
all
the
legal
formalities
regarding
the
vehicle
through
the
documents which is annexure no. 6 to the
affidavit.

8. The learned court did not consider
the facts and circumstances available on
records and passed the impugned order in a
routine manner without applying judicial
mind. The vehicle of the applicant is
confined since 21.12.2019 and is standing
in worst position as such if it is not
released, he will suffer irreparable loss and
injury. The trial court ignoring all the facts
and circumstances of the case, rejected the
release application which is bad in the eyes
of law. The learned court has passed the
impugned order in mechanical way without
perusing the record. Hence, the application
be allowed and order of the CJM and the
revisional Court be set aside.

9. All the relevant papers referred in
the application have been annexed with the
affidavit..

10. From the side of State opposite
party no. 1 Ashwini Kumar SI, PS Kotwali
Etah has filed counter affidavit and has
deposed that the order of rejection passed by
the CJM and the learned revisional court are
legal, perfect and the same are always
sustainable in the eyes of law. The impugned
vehicle has been auctioned for a sum of RS
98500/-.

11. The applicant has filed rejoinder
affidavit in which a simple prayer has been
made to allow the petition and no avernments
have been made against Para 11 of the
Counter Affidavit and the same has not been
denied which discloses that in furtherance of
confiscation, the impugned vehicle has been
auctioned. From the perusal of both the
impugned order it transpires that when the
release application and the revision against
the rejection order of CJM were pending, the
impugned vehicle was under the process of
confiscation. Learned CJM relying on
Mustafa Vs. State of UP AIR 2019 SC 3949
and Virendra Gupta Vs. State of UP 2019
(108) ACC
438
rejected
the
release
application
observing
that
when
any
proceeding for confiscation of a vehicle u/s
72 (2) of the UP Excise Act is pending, the
district magistrate would only be entitled to
deal with such vehicle and in that case the
concerned judicial magistrate would not be
competent to release the vehicle or to
entertain the release application u/s 451, 452
and 457 of Cr.P.C.

12. It would be appropriate to
mention Section 72 of the U.P. Excise Act,
which reads as follows:

Section 72. What things are liable to
confiscation

(1) Whenever an offence punishable
under this Act has been committed --

(a) every [intoxicant] 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;
390 INDIAN LAW REPORTS ALLAHABAD SERIES

(c)
every
[intoxicant]
lawfully
imported, transported,

manufactured, held in possession or
sold along with or in addition to any
[intoxicant] liable to confiscation under
clause (a) ;

(d) every receptacle, package and
covering in which any [intoxicant] 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.
(2) Where anything or animal is seized
under any provision of this Act, the officer
seizing and detaining such property shall,
within three working days from the date of
such seizure and detention ; produce a
detailed report for confiscation along with
such seized property, seizure memo and
other
relevant
documents
before
the
Collector.
The
Collector
shall,
upon
receiving the said report along with seizure
memo and seized property, immediately
order for safe custody and storage of goods
as he may deem fit. The Collector, if
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 is 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 entitles
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 carrying the contraband goods
without the knowledge or connivance of the
owner, his agent, if any, and the person incharge of the animal cart, vessel or other
conveyance and that each of them had
4 All. Ajay Kumar Vs. State of U.P. & Anr.
391
taken
all
reasonable
and
necessary
precautions against such use.

(6) Where on an application in that
behalf being made to the 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 the 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 anymistake
of law, he may pass such order on review as
he thinks fit.

(7) Any person aggrieved by an order
of the confiscation under sub-section (2) or
sub-section (6) may, within one month from
the date of the communication to him of
such order, appeal to such 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 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."

13. Learned revisional court has
quoted Section 72 of U.P. Excise Act and
has also analysed the judgment Virendra
Gupta (supra) and has concluded that in
Virendra Gupta (supra) the case of Govt. of
NCT of Delhi vs. Narendra (2014) 13 SCC
100 has been considered according to
which in case of confiscation, the seized
property shall be dealt with by section 72
of the Act which 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 CrPC
as sub section (1) to (4) of Section 72
clearly denudes the magistrate of his power
to pass any order u/s 457 Cr.P.C for release
of anything sized in connection of an
offense purporting to have been confiscated
under the Act.

14. The District Magistrate, Etah had
informed CJM vide report dated 5.9.2020
that the confiscation proceedings regarding
the impugned vehicle is pending before
him.
It
appears
that
later
on
the
confiscation proceeding has become final at
the end of District Magistrate, Etah hence,
the impugned vehicle had been auctioned
for a consideration of Rs 98,500/-.

15. Learned counsel for the applicant
has relied on Sundar Bhai Ambalal Desai
Vs. State of Gujarat 2002 lawsuit (SC)
1346 which is in respect of 451 Cr.P.C and
is inapplicable about the vehicle which are
subject to the confisccation and not the
subject matter of general law, hence
Chapter XXXIV of the Cr.P.C has no
applicability.

16. Learned counsel for the applicant
has further relied upon Chandrapal Vs.
State of UP 2021 0 Supreme All 92 in
which the application u/s 482 Cr.P.C was
allowed and the matters were remitted back
to the concerned magistrate to decide first
as to whether the Civil Court had
jurisdiction or not. In this case since no
392 INDIAN LAW REPORTS ALLAHABAD SERIES
corpus is into existence for release hence
this
application
has
also
become
infructuous. Now the only remedy remains
available to the applicant is to challenge the
validity
of
confiscation
proceeding
conducted by the District Magistrate, Etah.

17. On the basis of above discussion
this court is of conclusion that the
impugned order passed by the learned CJM
and learned revisional court is factually and
legally correct. When the impugned vehicle
was under the confiscation proceeding
before the district magistrate Etah, it was
open to the applicant to appear and contest
there.

18. In view of the above judgments
and Section 72 of the UP Excise Act both
the courts at district level were not
competent to entertain and allow the
release application. At present there is no
property remains as subject matter for
decision by the civil court or the High
Court. Hence this application deserves to
be dismissed.

ORDER

This
application
is,
accordingly,
dismissed.
----------
(2023) 4 ILRA 392
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 19835 of 2019

Nazim & Ors. ...Applicants
Versus
State of U.P. & Anr ...Opp. Parties

Counsel for the Applicants:
Sri Devendra Dahma, Sri Sanjay Mishra

Counsel for the Opp. Parties:
G.A., Sri Ravi Prakash Singh

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 147, 323, 324, 504, 506 & 326 -
If an stick is used in causing hurt or
grievous hurt on the ear of a victim -
Section 326 I.P.C would not be attracted -
if such injury would have been caused by
knife, or by other means mentioned in
Section 326 I.P.C - such injury would be
covered
under
Section
326
I.P.C
-
provided there is hundred percent loss of
hearing capacity of the concerned ear ,
Power of taking cognizance - Magistrates
have limited power to add or alter
sections,
considering
case
diary
and
charge-sheet - if left by the I.O. - they can
add or alter sections during charge
framing, but not during cognizance.(Para -
29,32,)
Opposition party lodged
N.C.R
-
against
applicants 2 to 5 - later converted into F.I.R. -
Medical
examination
was
conducted
-
supplementary reports prepared - Evidence
recorded - charge-sheet submitted - both
parties have lodged F.I.R against each other -
during investigation dispute over addition of
Section 326 I.P.C. - opposite party 2 failed to
appear for re-medical examination - conclusion
of trial and Revisional Courts - victim's right ear
drum injury was considered grievous hurt under
Section 320 I.P.C. (Para -3,14,16,19)

HELD:-Victim's right ear stick injury is not a
grievous hurt, as there is no medical report of
permanent hearing loss and is not covered
under Section 326 I.P.C.. Lower court failed to
appreciate facts, medical reports, and law,
leading to incorrect conclusions about grievous
hurt and punishable under Section 326 I.P.C. .
Taking cognizance and summoning accused
applicants under Section 326 I.P.C bad in law.
Revisional court's judgment incorrect.(Para -
30,31,33)

Application u/s 482 Cr.P.C. allowed. (E-7)