# Manoj Kumar Jaiswal v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-23
- **Case number:** U/S 482/378/407 No. 5635 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-jaiswal-v-state-of-u-p-ors-46624
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 419, 420, 467, 468, 471 & Excise Act,
1910-Section 72(2) -quashing of order passed
by
the
Collector
for
releasing
vehiclePetitioners application u/s 72(2) has been
allowed by the Collector subject to the
condition of payment of 30% of the market
value of the vehicle which has been seized
carrying illicit liquor-the Proviso, under the Act,
gives power to the Collector to release the
vehicle to the owner thereof by giving a bond
to pay in lieu of its confiscation such fine at the
Collector thinks appropriate but not exceeding
on the date of its seizure-Petitioner could have
appealed against the order u/s 72(7) under the
Act-Hence, there is no abuse of process of
Court.(Para 1 to 18)

The application is rejected. (E-6)

List of Cases cited:

## Text

570 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Inspection
Team,
and
therefore
the
procedure that was followed for inspection of
the godown of the petitioner was under the Food
Safety and Standards Act. The sample was sent
to the Government Public Analyst Laboratory,
Lucknow and Dr. Rajesh Kumar duly appointed
as Food Analyst under the provisions of Food
Safety and Standards Act, 2006 for U.P.
received the samples from the Food Safety
Officer Laboratory. The condition of the seal on
the samples and outer covering of such sample
was found intact and unbroken. Dr. Rajesh
Kumar, the Analyst found the sample of Phool
Jhadoo seeds unfit for human consumption
under Regulations 2.9.8 (1) of the Food Safety
and Standards (Food Products and Food)
Regulation 2011. The method of testing of the
sample was as per the prescribed standards in
the Regulations of 2011 and it was an analyzed
as per the Food Safety and Standards Manual of
2016. It was found on the basis of test performed
as per the Manual, that the extraneous material
exceeds the prescribed limit 3.0 in the sample
and the sample was found as sub standard by the
Food
Analyst
and
noxious
for
human
consumption. The opinion given was that the
sample of Phul Jhadoo seeds was not a food
item,
and
it
was
noxious
for
human
consumption, and the sample was declared
'noxious' as per the Section 3.1 (zz) 11 of the
Food Safety and Standards Act, 2006.

(11) It has been submitted by the learned
A.G.A. that only because the Food Safety and
Standards Act would apply in such matter, the
offence of cheating as described under Section
420 of the I.P.C. cannot be said to have become
rebundant. It was open for the Authorities to
take action only under the Food Safety and
Standards Act or take action also under the IPC
as Section 272 and 273 relates to addictions of
noxious substance in a food item Phul Jhadoo
seeds were found to be noxious enough for
human consumption and therefore action could
have been taken under Sections 272-273 also.

(12) After considering the arguments of the
learned counsel for the petitioner and the learned
A.G.A. and going through the judgment of the
Division Bench in Pepsico (Supra), this Court is
of the opinion that it is still open for the
Investigating Officer to file supplementary
charge sheet under various provisions of Food
Safety and Standards Act. The Charge sheet may
have been submitted under the provisions of IPC
and cognizance may have been taken but that
does not exclude the application of the Food
Safety and Standards Act in the case of the
petitioner.

(13) This Court is not convinced with the
arguments made by the learned counsel or the
petitioner that only because the Food Safety
and Standard Act, 2006 was applicable and
wrong section has been applied in the Charge
sheet
upon
the
petitioner,
the
offence
committed by the accused would not stand
washed away.

(14) There being no good ground to show
interference at this stage in the Charge-sheet or
the summoning order because the ends of justice
would not be served in case this Court shows
interference in such a gross misconduct of the
accused, this petition stands dismissed.
----------
(2021)12ILR A570
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

U/S 482/378/407 No. 5635 of 2021

Manoj Kumar Jaiswal ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Anil Kumar Tripathi
11 All. Manoj Kumar Jaiswal Vs. State of U.P. & Ors.
571
Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 419, 420, 467, 468, 471 & Excise Act,
1910-Section 72(2) -quashing of order passed
by
the
Collector
for
releasing
vehiclePetitioners application u/s 72(2) has been
allowed by the Collector subject to the
condition of payment of 30% of the market
value of the vehicle which has been seized
carrying illicit liquor-the Proviso, under the Act,
gives power to the Collector to release the
vehicle to the owner thereof by giving a bond
to pay in lieu of its confiscation such fine at the
Collector thinks appropriate but not exceeding
on the date of its seizure-Petitioner could have
appealed against the order u/s 72(7) under the
Act-Hence, there is no abuse of process of
Court.(Para 1 to 18)

The application is rejected. (E-6)

List of Cases cited:

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

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. Ved Prakash Vs St. of U.P. (1982) AWC 167 Alld.

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. This petition has been filed with the
following main prayer:-

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may graciously
be pleased to set aside the impugned judgement
and order dated 17.12.2020 passed by the Uppr
Collector/Upper District Magistrate, Hardoi in
Case No. 01087/2020 (Computerized Case No.
D202010330001087 (State vs. Anuj Jaiswal @
Lachchhu) U/s 72 of the U.P. Excise Act in the
respect of the petitioner in the interest of jusice.

It is further prayed that this Hon'ble
Court may kindly be pleased to direct the
respondents to release the Vehicle No. U.P.
32/HH-5155 in favour of the Petitioner without
imposing any fine which has been illegally
seized by the Police Authority of District Hardoi
in Case Crime No. 398/2020 Under Section
60/63 of the U.P. Excise Act, 1910 & under
Sections
419/420/467/468/471
IPC
Police
Station, Beniganj, District Hardoi, in the
interest of justice."

2. It has been submitted that a Criminal
Case had been registered against the five persons
including the petitioner by the police as Case
Crime No. 398 of 2020 under Section 60/63 of
the U.P. Excise Act, 1910 & under Sections 419,
420, 467, 468, 471 IPC Police Station Beniganj,
District Hardoi. It was alleged by the police that
on the basis of information given by the
informer, a white coloured car (Swift) was
seized with illicit liquor. Two persons were
arrested from the car and they informed of the
name of the petitioner as owner of the car. The
petitioner was arrested, thereafter.

3. It has been submitted by the learned
counsel for the petitioner that the petitioner is
the registered owner of Vehicle No. UP 32 HH
5155 (Swift Desire) and his vehicle was not
used. A false FIR was registered against him.

4. The petitioner was issued a show cause
notice to which the petitioner replied that his car
was not involved and has been seized
improperly by the police. The petitioner
appeared
before
the
District
Magistrate/Additional
Collector,
Hardoi
in
pursuance of the show cause notice and the reply
submitted by him on 16.10.2020, praying for
release of his vehicle under Section 72(2) of the
U.P. Excise Act, 1910. The learned Additional
District Magistrate asked for comments from the
police and has accepted the application for
release with the condition that the petitioner may
572 INDIAN LAW REPORTS ALLAHABAD SERIES
deposit 30% of the value of the vehicle and also
given an undertaking that he shall not sell of the
vehicle or change its condition in any manner
and would produce the same before the learned
trial court as and when it is so summoned. The
copy of the order was directed to be sent by the
police to the Assistant Regional Transport
Officer, Hardoi.

5. It is the case of the petitioner that the
Additional District Magistrate exceeded his
jurisdiction when he passed an order of
depositing of 30% percent of the value of the
car. It has been submitted that in view of the law
settled by a Co-ordinate Bench of this Court in
Criminal Revision No. 2177 of 2018, 'Devendra
Gupta vs. State of U.P. and others decided on
31.08.2018, and in Criminal Revision No. 1568
of 2018, 'Rajiv Kumar Singh vs. State of U.P.
and others decided on 23.11.2016. The District
Magistrate should have directed the release of
the vehicle by taking Bank Gurantee instead of
asking for 30% of the value of the vehicle.

6. It has been submitted by the learned
counsel for the petitioner that he had earlier
approached this Court by filing a writ petition
under Article 226 of the Constitution of India,
namely, Writ Petition No. 23997 (MB) of 2021,
'Manoj Kumar Jaiswal vs. State of U.P. and
Anothers'. This Court had directed the petitioner
to avail the remedy as available to him under
law and dismissed the writ petition as
withdrawn.

7. Sri S. P. Tiwari, learned AGA for the State
has raised a preliminary objection regarding the
maintainability of this petition under Section 482
of the Cr.P.C. by referring to Section 72 (2) of the
U.P. Excise Act, and thereafter, Sub-Section (7) of
the same Section 72 where it has been provided
that any person aggrieved by an order of
confiscation under Section 72 (2) to (6) may within
one month from the date of the order file an appeal
to the judicial authority nominated by the State
Government in this behalf.

8. It has been submitted that the order having
been
passed
by
the
Additional
District
Magistrate/Collector remedy lies in filing an
appeal Section 72 (2) before the District Judge on
the civil side under the Excise Act.

9. It has been submitted by the learned
counsel for the petitioner that since there is an
abuse of process of Court by the Collector,
therefore, a petition under Section 482 of the
Cr.P.C. will be maintainable before this Court. It
has been submitted by the learned counsel for
petitioner on the basis of orders passed in the
aforementioned two judgements that the Collector
was bound to release the vehicle during pendency
of the proceedings for confiscation and he could
not have passed the order directing the petitioner to
deposit 30% of the value of the car/seized vehicle.

10. This Court has carefully perused the
judgement in the case of Virendra Gupta vs. State
of U.P. (Supra) and finds that it has been passed in
a Criminal Revision against the order passed by
the Chief Judicial Magistrate, Mau rejecting the
application for release of a vehicle seized under
Section 451 (1) of the Cr.P.C., in connection with
Case Crime No. 50 of 2018, under Sections 60, 63,
72 of the U.P. Excise Act, and Sections 272, 273,
419, 420, 467, 468, 471 IPC. The vehicle was
found
transporting
country-made
adulterated
liquor. The revisionist application had been
rejected on the ground that since confiscation
proceedings in relation to the vehicle were in
progress, it would not be appropriate in the interest
of justice to release the vehicle in favour of the
revisionist.

11. This Court in Virendera Gupta
(Supra)
has
placed
reliance
upon
the
observations made by Hon'ble Supreme Court in
the case of "Sunderbhai Ambalal Desai vs.
State of Gujarat, 2002 (10) SCC 283, to say that
a vehicle seized in a crime and parked at police
station should be immediately released by taking
appropriate Bond and Guarantee as well as the
11 All. Manoj Kumar Jaiswal Vs. State of U.P. & Ors.
573
Security for return of the said vehicle, if required
at any point of time. This can be done pending
hearing of applications for return of such
vehicle. The Co-ordinate Bench has also placed
reliance upon the judgement rendered in case of
Nand vs. State of U.P. 1997 (1) AWC 41 where
the jurisdiction of the Magistrate under Section
451 Cr.P.C. to release the seized vehicle pending
investigation
or
trial
notwithstanding
the
pending of the confiscation proceedings before
the Collector was dealt with by this Court. The
Court had observed in Nand (Supra) that since
the ownership of the seized vehicle was not
disputed the revisionist could give a bank
guarantee of Rs. 2,00,000/- before the Chief
Judicial Magistrate, Kanpur Dehat and file a
bond that he shall be producing the truck as and
when needed by the criminal courts or the
District Magistrate, Kanpur Dehat, and he shall
not make any variation in the truck.

12. The Court relied upon the observations
made in another judgement in the case of Rajiv
Kumar Singh vs. State of U.P. and others, 2017
(5) ADJ, 351, where the Court observed that the
vehicle from which country-made liquor had
been recovered and was seized could be released
under Section 72 of the Excise Act, if the
revisionist therein was ready to furnish the
sureties before the Court concerned. The Court
dealt with Section 451 to 457 of the Cr.P.C. and
the general principles governing release pending
investigation or trial, and had observed that
vehicle seized in connection with a crime should
not be left to deteriorate at the police station.
The Court observed that the U.P. Excise Act is
related to seizure and confiscation of vehicles,
but still the power under Section 451 or 457 of
the Cr.P.C. would be available to the Magistrate
pending confiscation proceedings under the
special or the local law. The judgement rendered
in
the
case
of
Sunderbhai
Ambalal
Desai(supra) was distinguished by this Court
and the law laid down by this Court in Ved
Prakash vs. State of U.P., 1982 AWC 167
Allahabad was followed where it was observed
that the apprehension of vehicle carrying liquor
in contravention of the law be dealt with in
proceedings under Section 457 of the Cr.P.C.

13. This Court has carefully considered the
judgement rendered in the case of Virendra
Gupta (Supra) that it was rendered in Criminal
Revision arising out of an order of the Chief
Judicial Magistrate, Mau dated 13.06.2018
rejecting an application for release under Section
451 of the Cr.P.C., on the ground that
confiscation proceedings under Section 72 of the
Excise Act were pending before the Collector.
The Court had referred the matter in its order
dated 31.08.2018 to the Hon'ble Chief Justice
for constitution of a larger Bench to decide the
question:-

"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 subject
matter of confiscation proceedings, in the
exercise of powers under Sections 451, 452 or
457 of the Code of Criminal Procedure?"

14. The judgement cited by the learned
counsel for the petitioner does not help him insofar
as no definite opinion had been expressed with
regard to applicability of the Section 72 of the U.P.
Excise Act or that of Section 451 or 457 of the
Cr.P.C. The other judgement cited by the learned
counsel for the petitioner in Rajiv Kumar Singh vs.
State of U.P. & Another also was a judgement
rendered in a Criminal Revision where the
Additional Chief Judicial Magistrate had rejected
the application of the revisionist for release of
vehicle under Section 60 of the Excise Act on the
ground that confiscation proceedings under Section
72 of the U.P. Excise Act, were pending before the
Collector, and it would complicate the matter.

15. In this case, the petitioners application
under Section 72 Sub-Section 2 has been
574 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed by the Collector subject to the condition
of payment of 30% of the market value of the
vehicle which has been seized carrying illicit
liquor. The very language of Section 72 of the
Excise Act, and its Proviso, gives power to the
Collector to release the vehicle to the owner
thereof by giving a bond to pay in lieu of its
confiscation such fine at the Collector thinks
appropriate but not exceeding on the date of its
seizure.

16. It is apparent from the language of the
Act that the Collector can impose a fine up to
the extent of entire market value of the seized
vehicle. In the instant case obviously thirty
percent of the value of the seized car have been
directed to be paid.

17. Under Sub-Section (7) of Section 72,
the petitioner could have appealed against such
an order as it has a statutory remedy provided
under the Act, which could not be bye passed.

18. There is no abuse of process of Court
as alleged by the counsel for the petitioner for
this Court to exercise its inherent jurisdiction
under Section 482 of the Cr.P.C.

18. Accordingly, the petition stands
rejected.

19. No order as to costs.
----------
(2021)12ILR A574
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Application U/S 482 No. 17336 of 2021

Gangaram & Ors. ...Applicants
Versus
The State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Anil Kumar Bind

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

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860 -
Sections
325,
120-B
-quashing
of
entire
proceeding-a litigation was going on between
the parties, later on having been lost the said
litigation, a false FIR was lodged-applicants
have been summoned on total non-application
of mind on a cyclostyled format-the conduct of
the judicial officers concerned in passing orders
on printed proforma by filling up the blanks
without
application
of
judicial
mind
is
objectionable and deserves to be deprecatedthe summoning of accused in a criminal cases is
a serious matter and order must reflect that
Magistrate had applied his mind to the facts as
well as law applicable thereto-Learned court
below failed to exercise the jurisdiction vested
in him resulting in miscarriage of justice-The
order cannot be legally sustained.(Para 1 to 30)

The application is allowed. (E-6)

List of Cases cited:

1. R.R. Chari Vs St. of U.P. (1951) AIR SC 207

2. Ajit Kumat Palit Vs St. of W. B. & ors. (1963) AIR
SC 765

3. Tularam & ors. Vs Kishore Singh (1977) 4 SCC 459

4. Hareram Satpathy Vs Tikaram Agarwala & ors.
(1978) 4 SCC 58

5. Chandra Deo Singh Vs Prokar Chandra Bose(3)

6.
S.K
Sinha
Chief
Informant
Vs
Videocon
International CRLA No. 175 of 2007

7. Sunil Bharti Mittal Vs C.B.I. (2015) AIR SC 1923

8. Sunil Todi & ors. Vs St. of Guj. & anr. CRLA
No.1446 of 2021

9. Bhushan Kumar & anr. Vs State (NCT of Delhi) &
Anr (2012) 5 SCC 424