# Chandra Pal v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 3 ILRA 501
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-12
- **Case number:** Application U/S 482 No. 1325 of 2021
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-pal-v-state-of-u-p-anr-opp-parties-46908
- **Pages:** 16

## Headnote

502 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

(A) Criminal Law - U.P. Excise Act,1910 -
Sections 60 - Penalty for unlawful, export,
transport,manufacture,possession,sale, etc,.
- Sections 62 - Penalty for rendering
denatured spirit fit for human consumption ,
Sections 63 - penalty for unlawful import
and transport or possession of unlawfully
imported intoxicant etc. , Sections 72 - what
things are liable to confiscation - Code of
criminal procedure, 1973 - Section 396 -
Disposal of case according to decision of
High court , Section 451 - order for custody
and disposal of property pending trial in
certain cases , Section 452 - order for
disposal of property at conclusion of trial -
Section 457- Procedure by police upon
seizure of property - courts below
proceeded to refuse release of seized
vehicle of applicant by placing reliance upon
judgement of Apex Court in State (NCT of
Delhi) Vs Narender - without deciding their
jurisdiction
to
entertain
the
release
application - filed by applicant seeking
release of seized vehicle in terms of section
457 of Code - orders impugned in present
application - cannot be sustained on
account of erroneous reasoning - liable to be
quashed. (Para - 25)

Police seized a vehicle - huge quantity of Indian
made Foreign Liquor was recovered from vehicle -
applicant (registered owner of seized vehicle) filed
a release application - release application rejected
by concerned Magistrate - Magistrate concluded
that Apex Court in State (NCT of Delhi) Vs
Narender 2014 (13) SCC 100 has observed that
where confiscation proceedings (in this case under
Delhi Excise Act) are pending then courts have no
jurisdiction to direct release of seized vehicle -
Order passed by Magistrate challenged by filing a
criminal revision before Sessions Judge - revision
dismissed .(Para - 3,4,5,6,7)

HELD:- Magistrate as well as Revisional Court
ought to have decided the issue regarding their
own jurisdiction for releasing seized vehicle in
exercise of powers under the Code in respect of
vehicle which has been seized and confiscation
proceedings in respect of which are pending
consideration before District Magistrate under
Section 72 of Act, 1910. Matter remitted to
concerned
Magistrate
to
decide
release
application of applicant afresh. (Para - 24)

Application u/s 482 Cr.P.C. allowed. (E-6)

List of Cases Cited:-

## Text

_Characters 0–39,989 of 54,889. This is a partial read: ask again with offset=39989 for what follows._

3 All. Chandra Pal Vs. State of U.P. & Anr.
501
before him satisfied the Magistrate in this
regard.

8. It has been held by the Apex Court
in the case of Chandra Deo Singh v.
Prokash Chandra Bose alias Chabi Bose,
reported in AIR 1963 SC 1430 : (1963 (2)
Cri LJ 397):

...Whether the complaint is frivolous
or not has, at that stage, necessarily to be
determined on the basis of the material
placed before him by the complainant.
Whatever defence the accused may have
can only be enquired at the trial.

The Apex Court further said :-

...No doubt, as stated in sub-section
(1) of Section. 202 itself, the object of the
enquiry is to ascertain the truth or
falsehood
of
the
complaint
but
the
Magistrate making the enquiry has to do
this only with reference to the intrinsic
quality of the statements made before him
at the enquiry which would naturally mean
the complaint itself, the statement on oath
made
by
the
complainant
and
the
statements made before him by persons
examined
at
the
instance
of
the
complainant.

11. The plain position is that the
revision against the summoning order has
to be disposed of considering whether there
was anything illegal in the summoning
order passed by the learned Magistrate on
the basis of the material placed before him
under Sections 200 and 202, Cr. P. C. If
there is such prima facie material, as
obviously is present on the record in this
case, then it is not open for this Court to
take into consideration the extraneous
material filed from the side of the accusedrevisionists along with the revision petition.
There is no provision for placing on record
additional material in the revision against
the summoning order and the Court would
be traveling beyond its jurisdiction if it
relied on any extraneous material other
than the material led before the learned
Magistrate under Sections 200 and 202,
Cr. P. C. It is always open to the accused to
place
material
before
the
learned
Magistrate at the trial which may knock the
bottom out of the prosecution case. Any
such material cannot be looked into at this
stage to Judge whether the material led
before the learned Magistrate under
Sections 200 and 202, Cr. P. C. was
credible or reliable or not."

24. The order passed by the revisional
Court is also perfectly in accordance with
law.

25. This Court does not find any
illegality in the orders under challenge.

26. The petition under Article 227 of
the Constitution of India is devoid of merit.
The prayer for quashing the summoning
order and the revisional order, along with
the proceedings of the complaint case, is
hereby refused. This petition is dismissed.

27. No orders as to cost.
----------
(2021)03ILR A501
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2021

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Application U/S 482 No. 1325 of 2021

Chandra Pal ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sunil Kumar Yadav

Counsel for the Respondents:
502 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

(A) Criminal Law - U.P. Excise Act,1910 -
Sections 60 - Penalty for unlawful, export,
transport,manufacture,possession,sale, etc,.
- Sections 62 - Penalty for rendering
denatured spirit fit for human consumption ,
Sections 63 - penalty for unlawful import
and transport or possession of unlawfully
imported intoxicant etc. , Sections 72 - what
things are liable to confiscation - Code of
criminal procedure, 1973 - Section 396 -
Disposal of case according to decision of
High court , Section 451 - order for custody
and disposal of property pending trial in
certain cases , Section 452 - order for
disposal of property at conclusion of trial -
Section 457- Procedure by police upon
seizure of property - courts below
proceeded to refuse release of seized
vehicle of applicant by placing reliance upon
judgement of Apex Court in State (NCT of
Delhi) Vs Narender - without deciding their
jurisdiction
to
entertain
the
release
application - filed by applicant seeking
release of seized vehicle in terms of section
457 of Code - orders impugned in present
application - cannot be sustained on
account of erroneous reasoning - liable to be
quashed. (Para - 25)

Police seized a vehicle - huge quantity of Indian
made Foreign Liquor was recovered from vehicle -
applicant (registered owner of seized vehicle) filed
a release application - release application rejected
by concerned Magistrate - Magistrate concluded
that Apex Court in State (NCT of Delhi) Vs
Narender 2014 (13) SCC 100 has observed that
where confiscation proceedings (in this case under
Delhi Excise Act) are pending then courts have no
jurisdiction to direct release of seized vehicle -
Order passed by Magistrate challenged by filing a
criminal revision before Sessions Judge - revision
dismissed .(Para - 3,4,5,6,7)

HELD:- Magistrate as well as Revisional Court
ought to have decided the issue regarding their
own jurisdiction for releasing seized vehicle in
exercise of powers under the Code in respect of
vehicle which has been seized and confiscation
proceedings in respect of which are pending
consideration before District Magistrate under
Section 72 of Act, 1910. Matter remitted to
concerned
Magistrate
to
decide
release
application of applicant afresh. (Para - 24)

Application u/s 482 Cr.P.C. allowed. (E-6)

List of Cases Cited:-

1. State (NCT of Delhi) Vs Narender, (2014) 13
SCC 100

2. Krishna Mohan Sharma Vs St. of U.P. ,(1999)
2 JIC 270 Alld

3. Sunderbhai Ambalal Desai Vs St.of Guj.,
(2002) 10 SCC 283

4. Virendra Gupta Vs St. of U.P., 2019(6) ADJ 432

5. Ved Prakash Vs St. of U.P., 1982 A.W.C. 167

6. Virendra Gupta Vs St. of U.P., 2018 (105)
ACC 518

7. Mustfa Vs St. of U.P. & ors., Civil Appeal No.
6438 of 2019

8. Ved Prakash Vs St. of U.P , 1982 (19) ACC
183/1982 AWC 167

9. Mohd. Hanif Vs St. of U.P. , 1984 ACrR 23

10. Kamaljeet Singh Vs St. of U.P , 1986 U.P Cri
Rullings 50 (Alld)

11. Jagat Singh Vs St. of U.P. ,1991 (28) ACC
561

12. Jai Prakash Sharma VsSt. of U. P. , (1993)
30 ACC 6/1992 (3)AWC 1744

13. Sri Nand Vs St. of U.P , (1997) 34 ACC 32

14. Virender Pal Singh Vs St . of U.P. ,(2008) 60
ACC 481

15. Rama Shankar Yada Vs St. of U.P ,(2010) 68
ACC 16
3 All. Chandra Pal Vs. State of U.P. & Anr.
503
16. Ramesh Chandra Junwal Vs St. of U.P ,
2015 (8) ADJ 138

17. Raji Kumar Singh Vs St. of U.P. & ors. ,
2017 (99) ACC 260

18. Harish Chandra Singh Vs St. of U.P , Cr Rev
No. 3831/2017 (AHC)

19. Mustafa & ors. Vs St. of U.P. & ors. , 2018
(3) ALJ 351

20. Vikas Kumar Vs St. of U.P,2020 (7) ADJ 656

21. Karmvir Vs St. of U.P, Matter Under Article
227 No. 3401/2020 (A.H.C)

(Delivered by Hon'ble Rajeev Misra, J.)

1. Heard Mr. Sunil Kumar Yadav,
learned counsel for applicant and learned
A.G.A. for State.

2. This application under Section 482
Cr.P.C. has been filed challenging order dated
18.09.2020 passed by Additional Chief
Judicial Magistrate/Additional Civil Judge
(Sr. Div.) Court No.3, Aligarh in Case Crime
No. 338 of 2019 under Sections 62, 63, 72
U.P. Excise Act, Police Station- Akbarabad,
District-Aligarh as well as order dated
31.10.2020 passed by Additional Sessions
Judge/POCSO Act, Court No.02, Aligarh in
Criminal Revision No. 136 of 2020 (Chandra
Pal Vs. State of U.P.) under Sections-396,
397 Cr.P.C., arising out of order dated
18.9.2020,
whereby
above-mentioned
criminal revision has been dismissed.

3. Record shows that in respect of an
incident which occurred on 29.12.2019, an
F.I.R. dated 29.12.2019 was lodged and was
registered as Case Crime No.0338 of 2019
under Section 62, 63, 72 of U.P. Excise Act,
Police Station- Akbarabad, District-Aligarh.
In the aforesaid F.I.R., two unknown persons
who were sitting in vehicle No. DL. 1 VB
8839 but fled away from spot were
nominated as accused.

4. As per prosecution story as unfolded
in above-mentioned F.I.R., it is alleged that
police of concerned police station in routine
check for ensuing peace laid check point near
Bamba Pulia crossing to check vehicles. A
Vehicle bearing registration number DL 1 VB
8839 of TATA Sumo Gold Make was
detained for search and huge quantity of
Indian made Foreign Liquor was recovered
from aforesaid vehicle. However, driver and
passenger of aforesaid vehicle managed to
escape but the vehicle was seized.

5. Subsequently, applicant- Chandra
Pal, registered owner of seized vehicle No.
DL. 1 VB 8839 filed a release application
seeking release of same. The release
application was rejected by concerned
Magistrate vide order date 18.09.2020.
Magistrate concluded that Apex Court in
State (NCT of Delhi) Vs. Narender 2014
(13) SCC 100 has observed that where
confiscation proceedings (in this case under
Delhi Excise Act) are pending then courts
have no jurisdiction to direct release of seized
vehicle.

6. Order dated 18.09.2020 passed by
Magistrate was challenged by applicant by
filing a criminal revision before Sessions
Judge, Aligarh. Same was registered as
Criminal
Revision
No.136
of
2020,
(Chandrapal Vs. State of U.P.). This
revision also came to be dismissed by
Additional Sessions Judge/ POCSO Act
Court No.2, Aligarh vide order dated
31.10.2020.

7.

Additional
Sessions
Judge
concluded that since proceedings under
Section 72 of U.P. Excise Act, 1910
504 INDIAN LAW REPORTS ALLAHABAD SERIES
(hereinafter referred to as 'Act 1910') are
pending, therefore no directions can be
issued for release of disputed vehicle.
Revisional court referred to Krishna
Mohan Sharma Vs. State of U.P. 1999 (2)
JIC 270 Alld, but observed that judgement
therein has been rendered by a learned
Single Judge. Reference was also made to
the decision of Apex Court in Sunderbhai
Ambalal Desai Vs. State of Gujarat 2002
(10) SCC 283. However, revisional court
observed that in aforesaid case Court has
considered Sections 451, 452, 457 Cr.P.C
and not the provisions of Act 1910.
Revisional Court further referred to the
Division Bench Judgement of this Court in
Virendra Gupta Vs. State of U.P. 2019(6)
ADJ 432 wherein law laid down in Ved
Prakash Vs. State of U.P. 1982 A.W.C.
167 has been affirmed. It was held by
division bench that during pendency of
confiscation proceedings under section 72
of Act, 1910, Magistrate has no jurisdiction
under Section 457 Cr. P. C. to direct release
of vehicle seized under the provsisions of
Act, 1910 However, irrespective of above,
Revisional Court instead of deciding
jurisdiction of criminal courts regarding
release of seized vehicle under section 457
Cr.P.C.
even
during
pendency
of
confiscation proceedings under section 72
of Act 1910 rejected the revision filed by
applicant by placing reliance upon State
(NCT OF DELHI) Vs. Narender (supra).

8. Thus, feeling aggrieved by orders
dated 31.10.2020 and 18.09.2020, referred
to above, applicant has now approached
this Court by means of present application
under Section 482 Cr.P.C.

9. Learned counsel for applicant
submitted that applicant is registered owner
of disputed vehicle bearing registration No.
DL 1 VB 8839 of Tata Sumo Gold Make.
Aforesaid vehicle was seized on 29.12.2019
and is lying unattended at Police Station-
Akbarbad, District- Aligarh since then. No
useful purpose shall be served by detaining
the
disputed
vehicle
under
custody.
Furthermore, as seized vehicle is lying
unattended in open at concerned police
station, same shall get rusted and its value
shall also diminish. As such interest of justice
demands that seized vehicle of applicant be
released forthwith.

10. On aforesaid premise, it is
submitted that in view of law laid down by
Apex Court in Sunderbhai Ambalal Desai
Vs. State of Gujarat, (supra), concerned
Magistrate
committed
an
illegality
in
rejecting
release
application
filed
by
applicant. Additional Sessions Judge, Aligarh
ought to have allowed the revision and
directed release of seized vehicle of
revisionist in view of various authoritative
pronouncements of this Court, after taking
recourse to any of the safeguards mentioned
in Sunderbhai Ambalal Desai (Supra).
Reliance is placed upon paragraphs 6, 7 and
14 of above noted judgement which are
reproduced herein below:-

"6. 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 panchanama before
handing over possession of 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
3 All. Chandra Pal Vs. State of U.P. & Anr.
505

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.

7. The question of proper custody of the
seized article is raised in number of matters.
In Smt. Basawa Kom Dyanmangouda Patil v.
State of Mysore and another, [1977] 4 SCC
358, this Court dealt with a case where the
seized articles were not available for being
returned to the complainant. In that case, the
recovered ornaments were kept in a trunk in
the police station and later it was found
missing, the question was with regard to
payment of those articles. In that context, the
Court observed as under:-

"4. The object and scheme of the various
provisions of the Code appear to be that
where the property which has been the
subject-matter of an offence is seized by the
police, it ought not to be retained in the
custody of the Court or of the police for any
time
longer
than
what
is
absolutely
necessary. As the seizure of the property by
the police amounts to a clear entrustment of
the property to a Government servant, the
idea is that the property should be restored to
the original owner after the necessity to
retain it ceases. It is manifest that there may
be two stages when the property may be
returned to the owner. In the first place it may
be returned during any inquiry or trial. This
may particularly be necessary where the
property concerned is subject to speedy or
natural
decay.
There
may
be
other
compelling reasons also which may justify the
disposal of the property to the owner or
otherwise in the interest of justice. The High
Court and the Sessions Judge proceeded on
the footing that one of the essential
requirements of the Code is that the articles
concerned must be produced before the Court
or should be in its custody. The object of the
Code seems to be that any property which is
in the control of the Court either directly or
indirectly should be disposed of by the Court
and a just and proper order should be passed
by the Court regarding its disposal. In a
criminal case, the police always acts under
the direct control of the Court and has to take
orders from it at every stage of an inquiry or
trial. In this broad sense, therefore, the Court
exercises an overall control on the actions of
the police officers in every case where it has
taken cognizance."

The Court further observed that
where the property is stolen, lost or
destroyed and there is no prima facie
defence made out that the State or its
officers had taken due care and caution
to protect the property, the Magistrate
may, in an appropriate case, where the
ends of justice so require, order payment
of the value of the property.

To avoid such a situation, in our
view, powers under Section 451 Cr.P.C.
should be exercised promptly and at the
earliest.

Valuable
Articles
and
Currency
Notes

14.In our view, whatever be the
situation, it is of no use to keep suchseized 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
applications for return of such vehicles."

11. He has then referred to the
judgement of a learned Single Judge of
this Court in Criminal Revision No. 3831
of 2017 (Harish Chandra Singh Vs. State
of U.P.), wherein, while dealing with
almost a similar issue regarding release
of minor mineral Court allowed the
revision
by
placing
reliance
upon
Sunderbhai
Ambalal
Desai
(supra).
506 INDIAN LAW REPORTS ALLAHABAD SERIES
Following was ultimately observed by the
Court:-

"Having
considered
the
rival
submissions raised by the parties as well as
the law on the subject as crystallized in the
above quoted judgements, this Court is of
the considered opinion that the Magistrate
has erred in refusing to entertain the
release application on the grounds as
mentioned in the order dated 09.10.2017.
From the discussions made herein above, it
is clear that the offence alleged against the
revisionist is compoundable and such
power is with the District Magistrate. In
spite of the time having been granted to
the learned A.G.A., nothing has been
brought on record to show the action
taken by the D.M. Kaushambi in this
regard. However, it may be noted that the
Court does not find any legal impediment
in compounding the offence complained
against the revisionist. Secondly, the power
to release the seized mineral, tool, vehicle
etc., is with the Court as settled by the
Division Bench judgement of this Court in
the case of Rajendra Singh (supra). Lastly,
the Apex Court in the case of Sunderbhai
Ambalal Desai (supra) had already issued
a general mandamus that the seized items
should not be retained unnecessarily. In
the light of the settled legal position, the
Court finds that the C.J.M., Kaushambi
has dealt with the matter in a very casual
manner. He has not at all adverted to the
proposition laid down by the Apex Court
in the case of Sunderbhjai Ambalal Desai
(supra) nor has he recorded a finding as to
why it is not congenial in the facts and
circumstances of the case to deny the
release of the seized mooram."

12. On the aforesaid premise, it is
urged that seized vehicle of applicant is
liable to be released.

13. Learned counsel for applicant
further contended that mere pendency of
confiscation proceedings before District
Magistrate, under section 72 of Act, 1910,
shall not operate as a bar regarding
jurisdiction of Magistrate under section 457
Cr.P.C. in respect of release of such vehicle
which has been seized under section 60 of
Act, 1910. In continuation of aforesaid
submission, it is urged that the issue as to
whether seized vehicle cannot be released
by Magistrate on account of pendency of
confiscation proceedings under Section 72
of Act, 1910 is no longer res-integra.

14. To lend legal support to aforesaid
submission, he has referred to following
judgements
and
contends
that
view
expressed in Ved Prakash (Supra) has not
been followed in subsequent judgements.
He, therefore, contends that courts below
have committed a jurisdictional error in
rejecting the release application filed by
applicant by recording an erroenous finding
that on account of judgement of Apex
Court in State (NCT of Delhi) (Supra) the
seized vehicle cannot be released.

S.
No.
Judgement Name
1
Ved Prakash V State
of U.P
1982
(19)
ACC
183/1982
AWC 167
2
Mohd. Hanif Vs.
State of U.P.
1984 ACrR
23
3
Kamaljeet Singh V
State of U.P
1986
U.P
Cri
Rullings 50
(Alld)
4
Jagat
Singh
Vs.
State of U.P.
1991
(28)
ACC 561
5
Jai Prakash Sharma
V State of Uttar
Pradesh
(1993)
30
ACC
6/1992
3 All. Chandra Pal Vs. State of U.P. & Anr.
507
(3)AWC
1744
6
Sri Nand V State of
U.P
(1997)
34
ACC 32
7
Virender Pal Singh
V State of Uttar
Pradesh
(2008)
60
ACC 481
8
Rama
Shankar
Yadav V State of
U.P
(2010)
68
ACC 16
9
Ramesh
Chandra
Junwal V State of
U.P
2015
(8)
ADJ 138
10
Rajiv Kumar Singh
Vs. State of U.P.
and others
2017
(99)
ACC 260
11
Harish
Chandra
Singh V State of
U.P
Cr Rev No.
3831/2017
(AHC)
decided on
10..08.2018
12
Mustafa and others
Vs. State of U.P.
and others
2018
(3)
ALJ 351
13
Vikas
Kumar
V
State of U.P
2020
(7)
ADJ 656
14
Karmvir v State of
U.P
Matter
Under
Article 227
No.
3401/2020
(A.H.C)
decided
22.01.2021.

15. Per contra, learned A.G.A. has
opposed this application. He contends that
transport of illicit liquor is not only a crime
against State but also against society.
According to learned A.G.A. Section 72 of
Act, 1910 is a penal provision and
therefore, requires to be strictly construed.
On a plain reading of Section 72 of Act,
1910 it cannot be inferred even remotely
that aforesaid provision provides for a
mechanisam for release of a seized vehicle
by Magistrate in exercise of powers under
section 457 Cr.P.C. regarding which,
confiscation proceedings under section 72
of Act, 1910 are pending. It is also urged
that Magistrate cannot usurp jurisdiction in
this case by placing reliance upon Section 5
Cr. P. C. He further submits that since
vehicle of applicant has been used for
transporting
illicit
liquor
and
no
proceedings having been initiated by
applicant regarding theft or otherwise of
seized vehcle before seizure of same,
equity demands that disputed vehicle be not
released in favour of applicant.

16. Learned A.G.A. has relied upon a
Division Bench judgement of this Court in
Virendra Gupta Vs. State of U.P. (supra),
wherein Court has considered the law laid
down in some of above mentioned cases
and ultimately held that ratio laid down in
Ved Prakash (Supra) is the correct law.
Following has been observed by Division
Bench in paragraphs 19 and 20:-

"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'
508 INDIAN LAW REPORTS ALLAHABAD SERIES
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. "

On the basis of above, learned A.G.A.
contends that release application filed by
applicant seeking release of seized vehicle
before
Magistrate
was
itself
not
maintainable. Therefore, no illegality has
been committed by Courts below in
refusing to release the disputed vehicle.

17. I have considered the rival
submissions. The issue that emerges for
consideration in this application is whether
courts below committed a jurisdictional error
by rejecting the release application filed by
applicant by placing reliance upon STATE
(NCT of DELHI) Vs. NARENDER (supra)
without deciding their own jurisdiction under
Section 457 Cr. P. C. to adjudicate upon an
application seeking release of sezied vehicle
in respect of which, confiscation proceedings
under section 72 of Act, 1910 are pending
before District Magistrate.

18. Apex Court in STATE (NCT of
DELHI) Vs. NARENDER (supra) dealt
with provisions of Sections 33, 58 and 61 of
Delhi Excise Act. On basis of aforesaid,
Court concluded that jurisdiction of Courts to
pass orders of release under Sections 451,
452 and 457 Cr. P. C. relating to such
property
which
is
subject
matter
of
confiscation proceedings under aforesaid
provisions of Delhi Excise Act is clearly
ousted. Following has been observed by
Apex Court in paragrapshs 12, 13, 14, 15 and
16:-

"12. It is relevant here to state that in
the present case, the High Court, while
releasing the vehicle on security has
exercised its power under Section 451 of
the Code. True it is that where any property
is produced by an officer before a criminal
court during an inquiry or trial under this
section, the court may make any direction
as it thinks fit for the proper custody of
such property pending the conclusion of the
inquiry or trial, as the case may be. At the
conclusion of the inquiry or trial, the court
may also, under Section 452 of the Code,
make an order for the disposal of the
property produced before it and make such
other direction as it may think necessary.
Further, where the property is not produced
before a criminal court in an inquiry or
trial,
the
Magistrate
is
empowered
under Section 457 of the Code to make
such order as it thinks fit.
3 All. Chandra Pal Vs. State of U.P. & Anr.
509

13. In our opinion, the general
provision of Section 451 of the Code with
regard to the custody and disposal of the
property or for that matter by destruction,
confiscation or delivery to any person
entitled to possession thereof underSection
452 of
the
Code
or
that
of Section
457 authorising a Magistrate to make an
order for disposal of property, if seized by
an officer and not produced before a
criminal court during an inquiry or trial,
however, has to yield where a statute makes
a special provision with regard to its
confiscation and disposal.

14. We have referred to the scheme of
the Act and from that it is evident that the
vehicle seized has to be produced before
the Deputy Commissioner, who in turn has
been conferred with the power of its
confiscation or release to its rightful owner.
The requirement of production of seized
property before the Deputy Commissioner
under Section 59(1) of the Act is,
notwithstanding anything contained in any
other law, and, so also is the power of
confiscation. Not only this, notwithstanding
anything to the contrary contained in any
other law for the time being in force, no
court, in terms of Section 61 of the Act, has
jurisdiction to make any order with regard
to the property used in commission of any
offence under the Act.

15. In the present case, the Legislature
has used a non-obstante clause not only
in Section 59 but also in Section 61 of the
Act. As is well settled, a non-obstante
clause is a legislative device to give effect
to the enacting part of the section in case of
conflict over the provisions mentioned in
the non-obstante clause. Hence, Section
451, 452 and 457 of the Code must yield to
the provisions of the Act and there is no
escape from the conclusion that the
Magistrate or for that matter the High
Court, while dealing with the case of
seizure of vehicle under the Act, has any
power to pass an order dealing with the
interim custody of the vehicle on security or
its release thereof.

16. The view which we have taken
finds support from a judgment of this Court
in the case of State of Karnataka v. K.A.
Kunchindammed, (2002) 9 SCC 90, which
while dealing with somewhat similar
provisions under the Karnataka Forest Act
held as follows:-

"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 CrPC 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.

24. From the statutory provisions and
the analysis made in the foregoing
paragraphs the position that emerges is
510 INDIAN LAW REPORTS ALLAHABAD SERIES
that the learned Magistrate and the learned
Sessions Judge were right in holding that
on facts and in the circumstances of the
case, it is the Authorized Officer who is
vested with the power to pass order of
interim custody of the vehicle and not the
Magistrate. The High Court was in error in
taking a view to the contrary and in setting
aside the orders passed by the Magistrate
and the Sessions Judge on that basis."

19. In order to appreciate the above,
reference be made to the observations made
by a learned Single Judge of this Court in
Virendra Gupta Vs. State of U.P. 2018
(105) ACC 518 wherein Court has
observed as under in paragraphs 16 and
17:-

"16. The view which we have taken
finds support from a judgment of this Court
in the case of State of Karnataka v. K.A.
Kunchindammed (2002) 9 SCC 90, which
while dealing with somewhat similar
provisions under the Karnataka Forest Act
held as follows:

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 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.

24. From the statutory provisions and
the analysis made in the foregoing
paragraphs the position that emerges is
that the learned Magistrate and the learned
Sessions Judge were right in holding that
on facts and in the circumstances of the
case, it is the Authorized Officer who is
vested with the power to pass order of
interim custody of the vehicle and not the
Magistrate. The High Court was in error in
taking a view to the contrary and in setting
aside the orders passed by the Magistrate
and the Sessions Judge on that basis.

17. From a conspectus of what we
have observed above, the impugned order
of the High Court is found to be vulnerable
and, therefore, the same cannot be allowed
to stand."

17. It must be mentioned here 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, and, quoted in
paragraph 11 of the report in State (GNCT
of Delhi) (supra). "

21. Power of Distirct Magistrate to
order confiscation in respect of seized
vehicle / goods under Section 72 of Act,
1910, came up for consideration recently
before Apex Court in Civil Appeal No.
6438 of 2019 Mustfa Vs. State of U.P. and
3 All. Chandra Pal Vs. State of U.P. & Anr.
511
others reported in SCC online Web
Edition, Page1.

21. Court elaborately dealt with the
scheme contained in Section 72 of Act,
1910. Earlier judgement in State (NCT of
Delhi) Vs. Narender (supra) and others
and also issue regarding release of seized
vehicle in respect of which proceedings
under Section 72 of Act, 1910 are pending
were also considered.

22. Court meticulously considered the
above and upon evaluation observed as
follows in paragraphs 14, 15, 16, 17, 18, 19
, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29:-

" 14) Section 72(1) of the Act confers
power of confiscation of animal, cart,
vessel or other conveyance used by means
of which an offence has been committed.
Sub-section (2) of Section 72 of the Act
confers power upon the Collector to order
confiscation of such thing or animal
"whether or not a prosecution for such
offence has been instituted". Therefore, the
power of the Collector to confiscate the
seized thing or animal is independent of
prosecution. This Court in Yogendra Kumar
Jaiswal was dealing with the confiscation
of property under the Orissa Special Courts
Act, 2006 and the Bihar Special Courts Act,
2009. It was held that such confiscation is
independent of result of prosecution under
the Prevention of Corruption Act, 1988.
The Court held as under:

"146. In the case at hand, the entire
proceeding is meant to arrive at the
conclusion whether on the basis of the
application
preferred
by
the
Public
Prosecutor and the material brought on
record, the whole or any other money or
some of the property in question has been
acquired illegally and further any money or
property or both have been acquired by the
means of the offence. After arriving at the
said conclusion, the order of confiscation is
passed. The order of confiscation is subject
to appeal under Section 17 of the Orissa
Act.

That
apart,
it
is
provided
under Section
19 where
an
order
of
confiscation made under Section 15 is
modified or annulled by the High Court in
appeal or where the person affected is
acquitted by the Special Court, the money
or property or both shall be returned to the
person affected. Thus, it is basically a
confiscationwhich is interim in nature.
Therefore, it is not a punishment as
envisaged in law and hence, it is difficult to
accept the submission that it is a pre-trial
punishment and, accordingly, we repel the
said submission.

xx xx xx

149. We have already held that
confiscation is not a punishment and
hence, Article 20(1) is not violated. The
learned counsel for the State would lay
stress on the decision in State of A.P. v.
Gandhi [State of A.P. v. Gandhi, (2013) 5
SCC 111: (2013) 2 SCC (Cri) 884]. In that
case, the issue that arose for consideration
was: when the disciplinary proceeding was
initiated one type of punishment was
imposable and when the punishment was
imposed due to amendment of rule, a
different punishment, which was a greater
one, was imposed. The High Court opined
that the punishment imposed under the
amended rule amounted to imposition of
two major penalties which was not there in
the old rule. Dealing with the issue the
Court referred to the rule that dealt with
major penalties and the rule- making
power. Reference was made to the decision
in Pyare Lal Sharma v. J&K Industries Ltd.
[Pyare Lal Sharma v. J&K Industries Ltd.,
(1989) 3 SCC 448 : 1989 SCC (L&S) 484]
wherein it has been stated that no one can
512 INDIAN LAW REPORTS ALLAHABAD SERIES
be penalised on the ground of a conduct
which was not penal on the date it was
committed.
Thereafter,
the
two-Judge
Bench referred to the authority in K.
Satwant Singh v. State of Punjab [K.
Satwant Singh v. State of Punjab, AIR 1960
SC 266 : 1960 Cri LJ 410] wherein it has
been held thus: (Gandhi case [State of A.P.
v. Gandhi, (2013) 5 SCC 111 : (2013) 2
SCC (Cri) 884] , SCC pp. 133-34, para 46)

"46. ... ''28. ... In the present case a
sentence of imprisonment was, in fact,
imposed and the total of fines imposed,
whether
described
as
''ordinary'
or
''compulsory', was not less than the amount
of money procured by the appellant by
means of his offence. Under Section 420 of
the Penal Code an unlimited amount of fine
could be imposed. Article 20(1) of the
Constitution is in two parts. The first part
prohibits a conviction of any person for any
offence except for violation of law in force
at the time of the commission of the act
charged as an offence. The latter part of the
article prohibited the imposing of a penalty
greater than that which might have been
inflicted under the law in force at the time
of the commission of the offence. The
offence with which the appellant had been
charged
was
cheating
punishable
under Section 420 of the Penal Code which
was certainly a law in force at the time of
the commission of the offence. The sentence
of imprisonment which was imposed upon
the appellant was certainly not greater than
that permitted by Section 420. The sentence
of fine also was not greater than that which
might have been inflicted under the law
which had been in force at the time of the
commission of the offence, as a fine
unlimited in extent could be imposed under
the section.'" ( K. Satwant Singh case [K.
Satwant Singh v. State of Punjab, AIR 1960
SC 266 : 1960 Cri LJ 410] , AIR p. 275,
para28)"

15) Recently, this Court in Uday Singh
referred to earlier judgments of this Court
in State of Madhya Pradesh and Others v.
Kallo Bai8 and Divisional Forest Officer
and Another v. G. V. Sudhakar Rao and
Others9 to approve the argument that
criminal proceedings are distinct from
confiscation proceedings. The Court held
as under:

"22. In 2017, a similar view has been
taken by another two judge Bench of this
Court
in
Kallo
Bai
(supra)
while
construing the provisions of the Madhya
Pradesh Van Upaj (Vyapar Viniyam)
Adhiniyam,
1969.
By
virtue
of
the
amendments made to the Adhiniyam,
Sections 15-A to 15-D were introduced to
provide for confiscation proceedings in line
with the provisions contained in the Forest
Act as amended in relation to the State of
Madhya Pradesh. Relying on the earlier
decisions of this 8 (2017) 14 SCC 502 9
(1985) 4 SCC 573 Court including GV
Sudhakar Rao (supra), Justice NV Ramana,
speaking for the two judge Bench held:

"23. Criminal prosecution is distinct
from confiscation proceedings. The two
proceedings are different and parallel, each
having a distinct purpose. The object of
confiscation proceeding is to enable speedy
and effective adjudication with regard to
confiscation of the produce and the means
used for committing the offence while the
object of the prosecution is to punish the
offender.