# Jaikawar v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 432
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-04
- **Case number:** Application U/S 482 No. 9961 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaikawar-v-state-of-u-p-anr-46573
- **Pages:** 11

## Headnote

Excuse Act, 1944 - Section 72 - Application
filed
for
release
of
vehicle-rejectedprovision u/s 72 (1) to (4) of Excise Acthave the effect of denuding the Magistrate
of his power to pass any order u/s 47 of the
Code for release of any article seized under
offence
under
the
act-impugned
order
correct.

Application dismissed. (E-9)

List of Cases cited:

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

## Text

432 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The party shall file computer generated
copy of such order downloaded from the official
website of High Court Allahabad or certified
copy issued from the Registry of the High Court,
Allahabad.

14. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the official
website of High Court Allahabad and shall make
a declaration of such verification in writing.
----------
(2021)11ILR A432
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.10.2021

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 No. 9961 of 2021

Jaikawar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Punya Sheel Pandey

Counsel for the Opposite Parties:
A.G.A.

Excuse Act, 1944 - Section 72 - Application
filed
for
release
of
vehicle-rejectedprovision u/s 72 (1) to (4) of Excise Acthave the effect of denuding the Magistrate
of his power to pass any order u/s 47 of the
Code for release of any article seized under
offence
under
the
act-impugned
order
correct.

Application dismissed. (E-9)

List of Cases cited:

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

2. Nand Vs St of U.P., 1997 (1) AWC 41
3. Rajiv Kumar Singh Vs St. of U.P. & ors, 2017 (5)
ADJ 351

4.Vikas Kumar Vs St.of U.P. & anr., (Application u/s
482 No. 33012 of 2019, decided on 22.1.2020)

5.Chandra Pal Vs St. of U.P. & anr., (Application u/s
482 No. 1325 of 2021, decided on 12.2.2021)

6. Sunderbhai Ambalal Desai Vs St. of Guj. AIR 2003
SC 638

7. Vikki Vs St. of U.P., 2021 0 Supreme (All) 479

8.Ved Prakash Vs St. of U.P., 1982 19 ACC 183

9. Maru Ram Vs U.O.I. , (1981) 1 SCC 107

10. St. (U.O.I.) Vs Ram Sharan, (2003) 12 SCC 578

(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Punya Sheel Pandey, learned
counsel for the applicant and Sri Pankaj Saxena,
learned Additional Government Advocate-I
along with Ms. Rachna Tiwari, learned
Additional Government Advocate appearing for
State-opposite party.

2. The present application under Section
482 of the Code of Criminal Procedure1 has
been filed seeking to quash the order dated
08.09.2020 passed by the Additional Sessions
Judge/F.T.C. Court No.1, Deoria in Criminal
Revision No. 21 of 2020 (Jaikawar vs. State of
U.P.) and order dated 17.01.2020 passed by the
learned Chief Judicial Magistrate, Court No.17,
Deoria in Misc. Application No. 37 of 2020,
arising out of Case Crime No. 924 of 2019,
under Sections 60/63 of Excise Act and Section
473 IPC, P.S. Kotwali, District Deoria.

3. The facts as reflected from the records
of the case indicate that an application was filed
by the applicant herein before the court of Chief
Judicial Magistrate seeking release of vehicle
bearing Registration No. H.R. 60-J-1553, Engine
11 All. Jaikawar Vs. State of U.P. & Anr.
433
No. 15CRA1LPYW01221 and Chassis No.
MAT627121KLA01882 contending that no
recovery of any intoxicant had been made from
the vehicle and that the applicant had possessed
all the valid papers relating to the vehicle and
accordingly a prayer was made for release of the
vehicle. The Magistrate rejected the application
as being not maintainable by referring to a
Division Bench judgment of this Court in
Virendra Gupta Vs. State of U.P.2, for the
proposition that the provisions contained under
sub-sections (1) to (4) of Section 72 of the U.P.
Excise Act, 1910, clearly denude the Magistrate
of his power to pass any order under Section 457
of the Code for release of anything seized in
connection with an offence purporting to have
been committed under the Excise Act.

4. Aggrieved against the order, the
applicant preferred a revision being Criminal
Revision No. 21 of 2020. The revision was
argued on the jurisdictional point as to whether
the Magistrate had the power and jurisdiction to
release the vehicle when the confiscation
proceedings under Section 72 of the Act were
pending before the Collector, and after referring
to the facts and the material on record and also
the law laid down in the case of Virendra
Gupta (supra), the revision was rejected.

5. Learned counsel for the applicant has
sought to assail the orders of the courts below by
contending that mere pendency of confiscation
proceedings before the Collector under Section 72
of the Excise Act shall not operate as a bar against
release of a vehicle seized under Section 60 of the
Excise Act. In support of his contention, reliance
has been placed upon the judgments in the case of
Nand Vs. State of U.P.3, Rajiv Kumar Singh
Vs. State of U.P. and others4, Vikas Kumar vs.
State of U.P. and another5, Chandra Pal vs.
State of U.P. and another6 and Sunderbhai
Ambalal Desai vs. State of Gujarat7.

6.

Learned
Additional
Government
Advocate-I submits that in terms of the scheme
of the Act, the release of any property which is
subject matter of confiscation proceedings under
Section 72 of the Excise Act before the
Collector cannot be sought in terms of the
powers exerciseable under the Code. It is
pointed out that the controversy in the present
case stands squarely covered by a recent
judgment of this Court in the case of Vikki vs.
State of U.P.8 and also the earlier decisions in
the case of Ved Prakash Vs. State of U.P.9 and
Virendra Gupta (supra).

7. In order to appreciate the rival
contentions the provisions as contained under
Sections 5, 451, 452 and 457 of the Code of
Criminal Procedure may be adverted to, and the
same are as under :-

"5. Saving.-Nothing contained in this
Code shall, in the absence of a specific provision
to the contrary, affect any special or local law
for the time being in force, or any special
jurisdiction or power conferred, or any special
form of procedure prescribed, by any other law
for the time being in force.

451. Order for custody and disposal
of property pending trial in certain cases.-
When any property is produced before any
Criminal Court during an 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-
434 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) property of any kind or document
which is produced before the Court or which is
in its custody,

(b) any property regarding which an
offence appears to have been committed or
which appears to have been used for the
commission of any offence.

452. Order for disposal of property
at conclusion of trial.-(1) When an inquiry or
trial in any Criminal Court is concluded, the
Court may make such order as it thinks fit for
the disposal, by destruction, confiscation or
delivery to any person claiming to be entitled to
possession thereof or otherwise, of any property
or document produced before it or in its custody,
or regarding which any offence appears to have
been committed, or which has been used for the
commission of any offence.

(2) An order may be made under subsection (1) for the delivery of any property to
any person claiming to be entitled to the
possession thereof, without any condition or on
condition that he executes a bond, with or
without sureties, to the satisfaction of the Court,
engaging to restore such property to the Court if
the order made under sub-section (1) is modified
or set aside on appeal or revision.

(3) A Court of Session may, instead of
itself making an order under sub-section (1), direct
the property to be delivered to the Chief Judicial
Magistrate, who shall thereupon deal with it in the
manner provided in Sections 457, 458 and 459.

(4) Except where the property is
livestock or is subject to speedy and natural
decay, or where a bond has been executed in
pursuance of sub-section (2), an order made
under sub-section (1) shall not be carried out for
two months, or when an appeal is presented,
until such appeal has been disposed of.

(5) In this section, the term" property"
includes, in the case of property regarding which
an offence appears to have been committed, not
only such property as has been originally in the
possession or under the control of any party, but
also any property into or for which the same
may have been converted or exchanged, and
anything acquired by such conversion or
exchange, whether immediately or otherwise.

457. Procedure by police upon
seizure of property.-(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.

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."

8. Sections 60 and 72 of the U.P. Excise
Act, 1910 which are also relevant for the
purposes of the controversy at hand, read as
follows :-

"60. Penalty for unlawful import,
export, transport, manufacture, possession,
sale, etc.- (1) Whoever, in contravention of this
Act or of any rule or order made thereunder, or
11 All. Jaikawar Vs. State of U.P. & Anr.
435
of any licence, permit or pass obtained
thereunder-

(a) exports any intoxicant; or

(b)
transports
or
possesses
any
intoxicant which is not covered under Section 63
of this Act; or

(c) collects or sells the leaves and
small stalks (not accompanied by flowering or
fruiting tops) of natural and spontaneous growth
of wild Indian Hemp plant (Cannabis Sativa)
other than charas, ganja or any other intoxicating
drug covered under the Narcotic Drugs and
Psychotropic Substances Act, 1985; or

(d) constructs or works any distillery,
brewery, manufactory or vintnery; or

(e) uses, keeps or has in his possession
any material, still, utensil, implement or
apparatus, whatsoever, for the purpose of
manufacturing any intoxicant other than tari; or

(f) removes any intoxicant from any
distillery, brewery, manufactory, vintnery or
warehouse licenced, established or continued
under this Act; or

(g) bottles any liquor for the purposes
of sale; or

(h) sells any intoxicant, save in the
case provided for by Section 61; or

(i) taps, or draws tari from any tari
producing tree in the areas notified under
Section 42;

shall be punished with imprisonment
which may extend to two years and with fine
which may extent to one thousand rupees in the
case of an offence under sub-clause (i) and in
any other case, with imprisonment which may
extend to three years and with fine which shall,
not be less than ten times of the amount of
consideration fee or duty which would have
been leviable if such intoxicant had been dealt
with in accordance with this Act and the rules
and orders made thereunder or in accordance
with any licence, permit or pass obtained
thereunder, or two thousand rupees whichever is
greater.

(2) Whoever in contravention of this
Act or any rule or order made thereunder or of
any licence, permit or pass, obtained under this
Act, manufactures any intoxicant shall be
punished with imprisonment which shall not be
less than six months and which may extend to
three years and also with fine which shall not be
less than five thousand rupees and which may
extend to ten thousand rupees.

(3) Whoever, in contravention of this
Act, or any rule or order made thereunder,
consumes any intoxicant, shall be punished with
fine which shall not be less than one thousand
rupees and which may extend to two thousand
rupees.]

"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;

(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 which any intoxicant as aforesaid or
436 INDIAN LAW REPORTS ALLAHABAD SERIES
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 and the Collector
is satisfied for reasons to be recorded that an
offence has been committed due to which such
thing
or
animal
has
become
liable
to
confiscation under sub-section (1), he may order
confiscation of such thing or animal whether or
not a prosecution for such offence has been
instituted:

Provided that in the case of anything
(except on 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
things, including any animal, cart, vessel or
other conveyance, is of the opinion that "any
such things 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 things (except an intoxicant) or
animal to be sold at the market price by auction
or otherwise.

(4)Where such things or animals are
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 subsection (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 entitled thereto.

(5) (a) No order of confiscation under
this section shall be made unless the owner
thereof or the person from whom it is seized is
given-

(i) a notice in writing informing him of
the grounds on which such confiscation is
proposed;

(ii) an opportunity of making a
representation in writing within such reasonable
time as may be specified in the notice; and

(iii) a reasonable opportunity of being
heard in the matter.

(b) Without prejudice to the provisions
of clause (a), no order confiscating any animal,
cart, vessel, or other conveyance shall be made
if the owner thereof proves to the satisfaction of
the Collector that it was used in carrying the
contraband goods without the knowledge or
connivance of the owner, his agent, if any, and
the person in charge of the animal, cart, vessel or
other conveyance and that each of them had
taken all reasonable and necessary precautions
against such use.

(6) Where on an application in that
behalf being made to 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
11 All. Jaikawar Vs. State of U.P. & Anr.
437
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 any mistake of law, he may pass such
order on review as he thinks fit.

(7) Any person aggrieved by an order of
the confiscation under subsection (2) or subsection (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 with the order
of the Court".

(9) No order of confiscation made by
the Collector under this section shall prevent the
infliction of any punishment to which the person
affected thereby may be liable under this Act."

9. As per Section 72 of the Excise Act,
whenever an offence punishable under the Act
has been committed the articles enumerated
under sub-section (1) are liable to confiscation
and the Collector, upon being satisfied for
reasons to be recorded, may pass an order for
confiscation.

10. In the case of Virendra Gupta
(supra), the question referred for consideration
was as follows:-

"Whether
pending
confiscation
proceedings under Section 72 of the U.P. Excise
Act before the Collector, the Magistrate/Court
has jurisdiction to release any property subjectmatter of confiscation proceedings, in the
exercise of powers under Sections 451, 452 or
457 of the Code of Criminal Procedure?"

11. The views taken in the judgments in
the case of Nand and Rajiv Kumar Singh
(supra), which have been relied upon by
counsel for the applicant, were considered and
the views taken therein were not approved. It
was stated as follows:-

"15. As far as Nand (supra) is
concerned, Section 72 of the U.P. Excise Act
was not examined by the learned Single Judge
while deciding that case. In the case of Rajiv
Kumar Singh (supra), the day on which the
release application was rejected, no confiscation
proceedings under Section 72 of the 'Act' were
pending and were started thereafter. In Mustafa
(supra), another single Judge of this Court
although examined the effect of Section 5 of the
Code of Criminal Procedure and Section 72 of
the U.P. Excise Act on the power of a Magistrate
to release the vehicle under Section 457 Cr.P.C.
which was seized on account of it being
connected with a case under the 'Act' but since
the date on which the application for release was
made, the confiscation proceedings stood
decided and hence, the issue was left undecided.
In the case of Dilipsinh Ramsinh Solanki (supra)
and General Insurance Counsel (supra), the issue
involved was entirely different from the one
which is engaging our attention. Similarly, the
Apex Court in Sundarbhai Ambalal Desai
(supra) was dealing with a case in which
challenge was to an order of police remand for
the petitioners granted to the prosecuting
agency, where the petitioners were police
personnel involved in offences punishable under
Sections 429, 420, 465, 468, 477A and 114
I.P.C. on the charges that they had committed
438 INDIAN LAW REPORTS ALLAHABAD SERIES
offences for a period of time involving
replacement of valuable articles retained as case
property
by
other
spurious
articles,
misappropriation of money also seized in
connection with cases, unauthorized auction of
property seized and kept at the police station,
pending investigation. Thus, the offences which
were the subject-matter of the case of
Sundarbhai Ambalal Desai (supra) were under
the I.P.C. to which the provisions of Section 451
and 457 Cr.P.C. were applicable with full force.
The Hon'ble Apex Court in the case of
Sundarbhai Ambalal Desai (supra) had neither
any occasion to examine the effect of Section 72
of the 'Act' on the power of a Magistrate to
release seized properties in view of Section 5 of
the Code of Criminal Procedure. Therefore,
Sundarbhai Ambalal Desai (supra) can at best be
said to be an authority on the general law
regarding
release
of
vehicles
seized
in
connection with any criminal case.

16. Thus, in our opinion, none of the
authorities relied upon by the learned counsel for
the applicant can be said to be authorities on the
issue involved in this matter."

12. The judgment in the case of Ved
Prakash (supra) was also considered and the
view taken therein that the provisions regarding
disposal of property as contained in the Code,
can be invoked only to the extent they are not
inconsistent with Section 72 of the Excise Act,
having regard to the language of Section 5 of the
Code, was noticed, and the following paragraphs
of the judgment in the case of Ved Prakash
were reproduced with approval.

"5. Learned Counsel for the applicant
urged that even accepting that the Collector has
complete powers to deal with the property seized
in connection with the commission of an offence
under the U.P. Excise Act, the power of the
Magistrate, before whom the prosecution is
pending, is not taken away and if the Magistrate
exercises his jurisdiction to pass an order under
Section 457 Cr.P.C. it will prevail. In other
words the argument is that the jurisdiction of the
Magistrate under Section 457 Cr.P.C. shall
override the jurisdiction conferred on the
Collector under Section 72 of the U.P. Excise
Act. The argument fails to impress me.

6. Section 5 of the Code of Criminal
Procedure reads as follows:

"Nothing contained in this Code shall,
in the absence of a specific provision to the
contrary, affect any special or local law for the
time being in force, or any special jurisdiction or
power conferred, or any special form of
procedure prescribed, by any other law for the
time being in force."

7. There can be no controversy about
the fact that the U.P. Excise Act is a "local law"
within the meaning of that expression as used in
Section 5 of the Criminal Procedure Code.
Section 72 of that Act prescribes a special form
of procedure for dealing with the property seized
under the Excise Act and confers power or
jurisdiction on the Magistrate to deal with the
same. In view of the clear provisions contained
in Section 5 of the Criminal Procedure Code, the
provision contained therein regarding the
disposal of property, can be used only to the
extent they are not inconsistent with Section 72
of the U.P. Excise Act. Sub-section (4)(c) of
Section 72 says that if anything is sold under
Sub-section (3) the sale proceeds shall be
disposed of in accordance with such order as the
Magistrate trying the case may choose to pass at
the end. Sub-section (8) provides that where the
prosecution is instituted for the offence in
relation to which such confiscation was ordered,
the thing or animal shall, subject to the
provisions of Sub-section (4), be disposed of in
accordance with the order of the Court. It would
mean that if the article in question is sold by the
Collector under sub-section (3), then the Court
11 All. Jaikawar Vs. State of U.P. & Anr.
439
seized of the criminal case shall have
jurisdiction to pass orders with respect to the
sale proceeds only. If, however, the Collector
has merely ordered confiscation under subsection (1) and the sale of the property has not
taken place, the Magistrate will also have
jurisdiction, at the end of the trial, to pass orders
regarding the disposal of the property and,
despite the order of confiscation by the
Collector, the property shall be handed over to
such party as may be directed by the Court.

8. There can be yet another situation in
which the order of the Magistrate will prevail. It
will be where the criminal case is disposed of by
the Court before the Collector is able to pass
final orders under sub-section (1) of Section 72.
In such a case, in my opinion, the Court shall
have the jurisdiction to pass such orders
regarding the disposal of property as it may
deem fit and, thereafter, the Collector shall have
no jurisdiction to further deal with the property.

9. It may be argued that since the
words used in sub-section (8) "where a
prosecution is instituted for the offence in
relation to which such confiscation was ordered"
indicate that sub-section (8) shall come into play
only after the confiscation has been ordered. To
my mind, however, it cannot be so. If even after
the confiscation it is the order of the Court
which shall be decisive regarding the custody or
disposal, where is the sense in continuing
proceedings for confiscation after final orders
are passed by the Court, including orders
regarding custody and disposal of property. Subsection (8) has been couched in the existing
language only because the legislature thought
that the proceedings before the Collector being
of summary nature, he shall always be able to
finalise the same before the Court is able to
decide the criminal case."

13. The Division Bench thereafter
answered the reference by recording its
conclusion that the view taken in the case of
Ved Prakash had laid down the law correctly. It
was stated thus :-

"19...Section 72 of the 'Act' which is
admittedly a local act does not contain any
provision for release of anything seized or
detained
in
connection
with
an
offence
committed under the Act in respect of which
confiscation proceedings are pending. In fact the
sub-section (1) to sub-section (4) of Section 72
of the 'Act' prescribe the manner in which
anything seized in connection with an offence
committed under the 'Act' and in respect of
which confiscation proceedings under Section
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 under Section 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 under
Section 457 Cr.P.C. for release of anything
seized in connection with an offence purporting
to have been committed under the 'Act'.

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 v. State of U.P.,
1997 (1) AWC 41 or Rajiv Kumar Singh v. State
of U.P. and others, 2017 (5) ADJ 351 nor
Sunderbhai Ambalal Desai v. 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 under Section
72 of the U.P. Excise Act are pending before the
Collector."

14. The question with regard to the
applicability of the provisions contained under
Sections 451, 452 and 457 of the Code in a case
440 INDIAN LAW REPORTS ALLAHABAD SERIES
where the property had been seized and was
subject to confiscation proceedings under the
special Act namely Delhi Excise Act was
considered in State (NCT of Delhi) Vs.
Narendra10 and it was held as follows :-

"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.

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 under Section 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."

15. The applicability of the Code in an area
covered by a special or local law, in the context
of the saving clause under Section 5 of the Code
was considered in the Constitution Bench
judgment in the case of Maru Ram Vs. Union
of India11 and also in State (Union of India)
Vs. Ram Sharan12, and it was held that the
section consists of three components: (i) the
Code covers matters covered by it; (ii) if a
special or local law exists covering the same
area, the said law is saved and will prevail; (iii)
if there is a special provision to the contrary, that
will override the special or local law.

16. The aforementioned legal position has
been discussed in Vikki Vs. State of U.P. and
another8, and thereafter it has been held as
follows :-

"14. As per terms of Section 60 of the
Excise Act, the transportation of any intoxicant
in contravention of the provisions of the Act or
of any rule or order made thereunder or any
licence, permit or pass obtained thereunder, is
punishable and any vehicle used for carrying the
same, is liable for confiscation under Section 72
of the Excise Act.

15. Section 72 of the Excise Act deals
with the powers of confiscation of the Collector
and sub-section (2) thereof provides that where
anything is seized under any provision of the
Act, the officer seizing and detaining such
property shall produce the same along with a
detailed report, seizure memo and other relevant
documents before the Collector. The Collector,
if satisfied for reasons to be recorded that an
offence has been committed, may order
confiscation.

16. It is therefore seen that under the
scheme of the Excise Act, any vehicle used for
carrying the intoxicant, upon being seized, is
required to be produced before the Collector,
who in turn has been conferred with the power
of its confiscation.

xxx

19. The U.P. Excise Act is a 'local law'
within the meaning of Section 5 of the Code and
11 All. Jaikawar Vs. State of U.P. & Anr.
441
in view thereof the general provision contained
under Section 451 of the Code with regard to the
custody and disposal of the property pending
trial or the power for making an order for
disposal of property at the conclusion of the trial
under Section 452 or the procedure whereunder
the Magistrate is authorised to make an order for
disposal of property upon its seizure by the
police under Section 457, would therefore be
subject to the powers exerciseable under Section
72 of the Excise Act, which makes a special
provision with regard to confiscation and
disposal of the seized property.

20. It can therefore be said that the
provisions contained under sub-sections (1) to
(4) of Section 72 of the Act would have the
effect of denuding the Magistrate of his power to
pass any order under Section 457 of the Code for
release of any article seized in connection with
an offence purporting to have been committed
under the Act."

17. Having regard to the foregoing
discussion and the law as laid down in terms of
the decisions in the case of Virendra Gupta
and Vikki (supra), it is clear that the provisions
contained under sub-section (1) to (4) of Section
72 of the Excise Act would have the effect of
denuding the Magistrate of his power to pass
any order under Section 457 of the Code for
release of any article seized in connection with
an offence purporting to have been committed
under the Act.

18. As regards the decision in the case of
Vikas Kumar (supra) sought to be relied upon
by the counsel for the applicant it may be taken
note of that the aforesaid decision has been
rendered
without
considering
authoritative
pronouncement made by the Division Bench in
the case of Virendra Gupta (supra) and has
followed the view taken in the case of Nand
(supra), which has been disapproved by the
Division Bench in the case of Virendra Gupta;
therefore, the decision in the case of Vikas
Kumar cannot be of any aid to the counsel for
the applicant.

19. The other judgment relied upon by the
counsel for the applicant which is the case of
Chandra Pal (supra) is also distinguishable on
facts since in that case the criminal courts
instead of deciding the jurisdiction regarding
release of the seized vehicle rejected the revision
by placing reliance upon the judgment in the
case of State (NCT of Delhi) vs. Narendra10
which was based upon a consideration of the
provisions of the Delhi Excise Act, 2009 and
accordingly the court held that the ratio in the
case of State (NCT of Delhi) (supra) would be
confined to the matters arising out of Delhi
Excise Act.

20. In the case of Sunderbhai Ambalal
Desai Vs. State of Gujarat13 which is sought
to be relied upon on behalf of the applicant, the
subject matter of consideration was a challenge
which had been raised to an order of police
remand granted to the prosecuting agency for the
petitioners therein, who were police personnel
involved in offences punishable under Sections
429, 420, 465, 468, 477-A and 114 of the Indian
Penal Code, 1860 on allegations that they had
committed offences during a period of time by
replacing of valuable articles retained as case
property
by
other
spurious
articles,
misappropriation of the amount which was kept
at the police station, unauthorised auction of the
property which was seized and kept in the police
custody pending trial and tampering with the
records of the police station. The offences which
were subject matter of the case were under the
penal code and not under a special Act, and
accordingly, the provisions under Sections 451
and 457 were applicable. The judgment in the
case Sunderbhai Ambalal Desai (supra), which
is an authority relating to release of vehicles
seized in connection with criminal proceedings
under general law, would not be applicable
442 INDIAN LAW REPORTS ALLAHABAD SERIES
under the facts of the present case which relate
to proceedings under a special Act, particularly
in view of the provisions under Section 5 of the
Code.

21. Learned counsel for the applicant has
not been able to dispute the aforesaid legal
position.

22. No other ground was urged.

23. For the aforestated reasons, this Court
is of the view that the orders passed by the
courts below do not warrant any interference.

24. The application under Section 482
Cr.P.C. accordingly stands dismissed.
----------
(2021)11ILR A442
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2021

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

Application U/S 482 No. 10674 of 2021

Jai Shankar Singh (Karta) ....Applicant
Versus
U.O.I. & Ors. ....Opposite Parties

Counsel for the Applicant:
Sri Amit Mahajan

Counsel for the Opposite Parties:
G.A.

Income Tax Act, 1961- Section 276 - CCApplicant-an assessee-he belatedly submitted
return-issued show cause notice-no reply by
the Applicant-'in due time' used in section 276
-CC-no provision for condonation-as due term
prescribed u/s 139 (1) or (2) will not get
diluted by filing return u/s 139 (4) -it is against
the legislative intent-.

Held, Thus, when examined in light of said legal
position, then the argument that applicant had
already furnished his return in terms of Section 139
(4) will not take away the liability of filing the return
'in due time' as mentioned in Section 276-CC, merely
because no notice was issued prior to filing of the
return. (para 38)

Application dismissed. (E-9)

List of Cases cited:

1. Suchitra Components Ltd. Vs Commissioner of
Central Excise, Guntur; 2007 (208) ELT 321 (SC)

2. Commissioner of Central [4] Application U/S 482
No. - 10674 of 2021 Excise, Bangalore Vs Mysore
Electricals Industries Ltd; 2006 (204) ELT 517 (SC)

3. Director of Income Tax Circle 26 (1), New Delhi Vs
S.R.M.B. Dairy Farming (P) Ltd.; [2018 (400) ITR 9]

4. S.C. Naregal Vs Commissioner of Income Tax &
ors.; [2019 (418) ITR 455 (SC)]

5. Rakapalli Raja Rama Gopala Rao Vs Naragani
Govinda Sehararao & anr.; AIR 1989 SC 2185

6. St. of Orissa & ors. Vs Mohd. Illiyas; (2006) 1 SCC
275

7. Income-Tax Officer Vs Autofil & ors.; [1990 (184)
ITR 47]

8. Narayan Vs U.O.I. ; [1994 (208) ITR 82 (M.P.)

9. Rajkumar Thiyagarajan Vs Income Tax Department,
Ward II, Theni; [2021 (277) Taxman 437 (Madras)]

10. Suresh Sholapurmath Vs Income Tax Department;
(2017) 397 ITR 147

11. Forzza Projects (P) Ltd. & ors. Vs Principal,
Commissioner of Income Tax, Kochi & ors.; [2021 (2)
KLJ 473]

12. M/S. Jai Fibres Ltd. Vs Commissioner of Central
Excise, Mumbai-III; (2008) 1 SCC 434

13. Jay Mahakali Rolling Mills Vs U.O.I. & ors.; (2007)
12 SCC 198