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

- **Citation:** (2024) 7 ILRA 421
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-05
- **Case number:** Matters U/A 227 No. 6929 of 2024
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramit-v-state-of-u-p-anr-52277
- **Pages:** 10

## Headnote

422 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Uttar Pradesh Excise
Act,
1910-
Section
72-
confiscation
proceedings pending before the District
Magistrate- Vehicle confiscated- release
application
filed
before
judicial
Magistrate-
Section
457
of
CrPC-
dismissed on the ground of pendency of
confiscation proceedings before District
Magistrate- criminal revision preferred
against it- dismissed- both the orders
under challenge in the instant petition.

B. Judicial Magistrate- denuded of his
power under Section 457 CrPC- during
pendency
of
confiscation
proceedings
under Section 72 of the Act, 1910- Dictum
in Virendra Gupta followed and reiterated-
Vehicle seized under provisions of Excise
Act-confiscation
proceedings
pending
before the Collector- Judicial Magistrate
has no jurisdiction to release the vehicle -
Impugned orders not suffering from any
legal lacuna- upheld-Petition dismissed.
(Paras 17 to 22)

HELD:

Hence, in view of the decision of the Division
Bench of this Court in Virendra Gupta (supra)
wherein the reference made in Virendra Gupta
(referred by learned Single Judge of this Court)
(supra) was answered as mentioned here-inabove. The controversy sets at rest and it can
safely be held that if a vehicle is seized under
the provisions of the Excise Act and confiscation
proceedings in respect thereof are going on
before the Collector, a Judicial Magistrate has
got no jurisdiction to release the aforesaid
vehicle. Needless to say that even if the
petitioner before the Court is the registered
owner of the vehicle, this fact does not offer any
certificate regarding his entitlement to move an
application for release of such vehicle before the
Court of a Judicial Magistrate who is denuded of
his
jurisdiction
in
such
matters
as
the
jurisdiction is an ornament of the Court which
cannot be imposed or created and it is inherited
in a particular Court. (Para 21)

Appeal allowed. (E-14)

List of Cases cited:

## Text

7 All. Pramit Vs. State of U.P. & Anr.
421
of sub-section (1) shall be presumed to be
true until the contrary is proved.

27. Section 49 of the U. P.
Consolidation of Holdings Act provides
that: -

 "49.
Bar
to
Civil
Court
jurisdiction.-Notwithstanding
anything
contained in any other law Courts for the
time being in force, the declaration and
adjudication of rights of tenure-holder in
respect of land, lying in an area, for which
a notification has been issued under subsection (2) of Section 4, or adjudication of
any other right arising out of consolidation
proceedings and in regard to which a
proceeding could or ought to have been
taken under this Act, shall be done in
accordance with the provisions of this Act
and no Civil or Revenue Court shall
entertain any suit or proceeding with
respect to rights in such land or with
respect to any other matters for which a
proceeding could or ought to have been
taken under this Act:

 Provided that nothing in this
section
shall
preclude
the
Assistant
Collector from initiating proceedings under
Section 122-B of
the U.P.
Zamindari
Abolition and Land Reforms Act, 1950
(U.P. Act 1 of 1951) in respect of any land,
possession over which has been delivered
or deemed to be delivered to a Gram Sabha
under or in accordance with the provisions
of this Act.

28. In spite of the aforesaid
statutory provision barring the jurisdiction
of civil and revenue Courts, the petitioner
had filed the application under Section
11(2) of the Ceiling Act, which has rightly
been dismissed on the ground that the land
continued to be recorded in the name of
Rana Uma Nath Bux Singh, who had died
about 50 years' ago and thereafter the
name of his heir Rana Swayambar Singh
was recorded in the Khatauni, which is
the new revenue record of rights prepared
under Section 27(1) of the U. P.
Consolidation of Holdings Act on C.H.
Form 45 and the petitioner had not
challenged this entry..

29. In view of the aforesaid
discussion, there is no illegality in the order
28.10.1987 passed by the Additional
District Magistrate (Finance and Revenue),
Raebareli
rejecting
the
petitioner's
application under Section 11(2) of the
Ceiling Act, or in the order dated
15.03.1989 passed by the Additional
Commissioner
(Judicial),
Lucknow
Division, Lucknow, dismissing the Appeal
filed by the petitioner against the aforesaid
order dated 28.10.1987.

30. The Writ Petition lacks merit
and the same is dismissed. Costs made
easy.
---------
(2024) 7 ILRA 421
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Matters U/A 227 No. 6929 of 2024

Pramit ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Mohd. Naushad, Rajiv Sisodia

Counsel for the Respondents:
G.A.
422 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Uttar Pradesh Excise
Act,
1910-
Section
72-
confiscation
proceedings pending before the District
Magistrate- Vehicle confiscated- release
application
filed
before
judicial
Magistrate-
Section
457
of
CrPC-
dismissed on the ground of pendency of
confiscation proceedings before District
Magistrate- criminal revision preferred
against it- dismissed- both the orders
under challenge in the instant petition.

B. Judicial Magistrate- denuded of his
power under Section 457 CrPC- during
pendency
of
confiscation
proceedings
under Section 72 of the Act, 1910- Dictum
in Virendra Gupta followed and reiterated-
Vehicle seized under provisions of Excise
Act-confiscation
proceedings
pending
before the Collector- Judicial Magistrate
has no jurisdiction to release the vehicle -
Impugned orders not suffering from any
legal lacuna- upheld-Petition dismissed.
(Paras 17 to 22)

HELD:

Hence, in view of the decision of the Division
Bench of this Court in Virendra Gupta (supra)
wherein the reference made in Virendra Gupta
(referred by learned Single Judge of this Court)
(supra) was answered as mentioned here-inabove. The controversy sets at rest and it can
safely be held that if a vehicle is seized under
the provisions of the Excise Act and confiscation
proceedings in respect thereof are going on
before the Collector, a Judicial Magistrate has
got no jurisdiction to release the aforesaid
vehicle. Needless to say that even if the
petitioner before the Court is the registered
owner of the vehicle, this fact does not offer any
certificate regarding his entitlement to move an
application for release of such vehicle before the
Court of a Judicial Magistrate who is denuded of
his
jurisdiction
in
such
matters
as
the
jurisdiction is an ornament of the Court which
cannot be imposed or created and it is inherited
in a particular Court. (Para 21)

Appeal allowed. (E-14)

List of Cases cited:

1. Chandra Pal Vs St. ofU.P. & anr.(Application
u/s 482 No. - 1325 of 2021) decided on
12.2.2021

2. Vikas Kumar Vs St. ofU.P & anr.(Application
u/s 482 No. - 33012 of 2019) decided on
22.1.2020

3. Virendra Gupta Vs St. ofU.P., 2019 (6) ADJ
432 (D.B.)

4. Jaikawar Vs St. ofU.P. & anr.(Application u/s
482 No. - 9961 of 2021) decided on 4.10.2021

5.
Akhilesh
Kumar
Vs
St.
ofU.P.
&
anr.(Application u/s 482 No. - 20096 of 2021)
decided on 4.3.2022

6. Sunderbhai Ambalal Desai, AIR 2003 SC 638,
Nand Vs St. ofU.P., 1996 Law Suit (All) 423

7. Jai Prakash Vs St. ofU.P., 1992 AWC 1744

8. Kamaljeet Singh Vs St. ofU.P. 1986 U.P. Cri.
Ruling 50 (Alld)

9. Mustafa Vs St. ofUttar Pradesh & Ors. decided
by the Hon'ble Supreme Court in Civil Appeal
No.6438 of 2019 (arising out of SLP (Civil)
No.11110 of 2018) on 20.8.2019

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

1. Heard Sri Rajiv Sisodia, learned
counsel for the petitioner, learned A.G.A.
for the State and perused the record.

2.

Criminal
Misc.
Exemption
Application is allowed.

3. The factual matrix of the matter
may be summarized in the manner that two
persons
Pramit
and
Surendra
were
intercepted by the police while engaged in
transporting 12 bottles of illegal liquor
having a wrapper with remark of 'Royal
Stag Whisky for sale in Haryana and Delhi'
endorsed upon it in a Ford Ecosport Car
7 All. Pramit Vs. State of U.P. & Anr.
423
bearing registration No. HR 06AH - 2718
on 25.10.2023 at 18:30 P.M. Both the
accused persons were arrested and the
liquor was seized and sample was taken by
the police on spot and memo of recovery
and arrest was also prepared and F.I.R. was
lodged under Sections 60, 63, 72 of the
Uttar Pradesh Excise Act, 1910 (hereinafter
referred to as the 'Act').

4. Subsequently an application for
release of Car No. HR 06AH - 2718
claiming himself to be the registered owner
of the said vehicle was moved by one of the
accused Pramit, but the said application
was
rejected
by
the
Chief
Judicial
Magistrate,
Shamli
vide
order
dated
19.12.2023 in case crime no.591 of 2023
simply on the ground that since the
confiscation proceedings are reported to be
pending before the District Magistrate, the
Judicial Magistrate has got no jurisdiction to
entertain the application for release of the
vehicle seized under the provisions of the
Excise Act in respect thereof confiscation
proceedings are pending before the District
Magistrate. The said order was challenged by
way of criminal revision no.1 of 2024 before
the District Judge, Shamli which on the same
analogy was rejected by the revisional court as
well vide judgment and order dated 6.4.2024,
feeling aggrieved to which the present petition
under article 227 of the Constitution of India
has been preferred.

5. It is submitted by learned counsel for
the petitioner that the impugned orders passed
by the learned Chief Judicial Magistrate as
well as by the District Judge are bad in law
and have been passed without taking into
account the correct legal position into the
matter.

Another point of argument is that
the release application was rejected by the
Chief Judicial Magistrate, Shamli solely on
the
ground
that
since
confiscation
proceedings are going on before the
District Magistrate, the case property could
not be released under Section 72 of the Act
and the said view was legally not
sustainable.

It has been further urged by the
learned counsel for the petitioner that the
aforesaid wrong legal notion was affirmed
by the District & Sessions Judge in
criminal revision no.1 of 2024 and the
impugned order passed by the learned
Magistrate was upheld and the revision was
dismissed.

Another limb of argument is that
the legal position in this regard is very
explicit according to which even if the
confiscation proceedings are going on
before the District Magistrate in a case
under the Act, the release of property
cannot be refused on this ground alone. The
petitioner before the Court is the registered
owner of the vehicle in question and the
Magistrate was fully empowered to pass an
order for release of the said vehicle under
Section 457 of the Code of Criminal
Procedure.

Reliance has been placed by the
learned counsel for the petitioner upon the
decisions of the Single Bench of this Court
rendered in Chandra Pal Vs. State of U.P.
and Another (Application u/s 482 No. -
1325 of 2021) decided on 12.2.2021 and
Vikas Kumar Vs. State of U.P and
Another (Application u/s 482 No. - 33012
of 2019) decided on 22.1.2020 by a
learned Single Judge of this Court.

6. Per contra, learned A.G.A.
vehemently opposed the prayer made in the
petition. It has been urged that in the facts
and circumstances of the present case, the
Magistrate was seized of his power to
release the vehicle in question under
424 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 457 Cr.P.C. In support of his
contention, he has placed reliance on the
following
decisions
rendered
by
the
coordinate Benches of this Court -

(i) Virendra Gupta Vs. State of
U.P., 2019 (6) ADJ 432 (D.B.)

(ii) Jaikawar Vs. State of U.P.
and Another (Application u/s 482 No. -
9961 of 2021) decided on 4.10.2021

(iii) Akhilesh Kumar Vs. State
of U.P. and Another (Application u/s 482
No. - 20096 of 2021) decided on 4.3.2022

7. The provisions of Article 227 of the
Constitution of India under which the
present petition has been filed, are
extracted below -

"227. Power of superintendence
over all courts by the High Court --(1)
Every
High
Court
shall
have
superintendence
over
all
courts
and
tribunals
throughout
the
territories
interrelation
to
which
it
exercises
jurisdiction.

(2) Without prejudice to the
generality of the foregoing provisions, the
High Court may--

(a) call for returns from such
courts;

(b) make and issue general rules
and prescribe forms for regulating the
practice and proceedings of such courts;
and

(c) prescribe forms in which
books, entries and accounts shall be kept by
the officers of any such courts.

(3) The High Court may also
settle tables of fees to be allowed to the
sheriff and all clerks and officers of such
courts and to attorneys, advocates and
pleaders practising therein:Provided that
any rules made, forms prescribed or tables
settled under clause (2) or clause (3) shall
not be inconsistent with the provision or
any law for the time being in force, and
shall require the previous approval of the
Governor.

(4) Nothing in this article shall be
deemed to confer on a High Court powers
of superintendence over any court or
tribunal constituted by or under any law
relating to the Armed Forces."

8. In order to adjudge the validity of
the impugned orders, to cast a fleeting
glance over the provisions of Section 72 of
the Act would be appropriate which are
extracted as below.

"72. What things are liable to
confiscation -(1) Whenever an offence
punishable under this Act has been
committed-

(a)every [intoxicant]2 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]2 lawfully
imported, transported, manufactured, held
in possession or sold along with or in
addition to any [ intoxicant]2 liable to
confiscation under clause (a) ;

(d)every receptacle, package and
covering in which any [intoxicant]2 as
aforesaid or any materials, still, utensil,
implement or apparatus is or are found,
together with the other contents (if any ) of
such receptacle or package ; and

(e)every animal, cart, vessel or
other conveyance used in carrying such
receptacle or package; shall be liable to
confiscation.

(2) Where anything or animal is
seized under any provision of this Act and
the Collector is satisfied for reasons to be
recorded
that
an
offence
has
been
7 All. Pramit Vs. State of U.P. & Anr.
425
committed due to which such thing or
animal has become liable to confiscation
under sub-section (1), he may order
confiscation of such thing or animal
whether or not a prosecution for such
offence has been instituted :

Provided that in the case of
anything (except an intoxicant)or animal
referred to in sub-section (1), the owner
thereof shall be given an option to pay in
lieu of its confiscation such fine as the
Collector thinks adequate not exceeding its
market value on the date of its seizure.

(3) Where the Collector on
receiving report of seizure or on inspection
of the seized thing, including any animal,
cart, vessel or other conveyance, is of the
opinion that any such thing or animal is
subject to speedy wear and tear or natural
decay or it is otherwise expedient in the
public interest so to do, he may order such
thing (except an intoxicant) or animal to be
sold at the market price by auction or
otherwise.

(4) Where any such thing or
animal is sold as aforesaid, and -

(a) no order of confiscation is
ultimately passed or maintained by the
Collector under sub-section (2) or on
review under sub-section (6); or (b) an
order passed on appeal under sub-section
(7) so requires; or (c) in the case of a
prosecution being instituted for the offence
in respect of which the thing or the animal
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 therof proves to the satisfaction of
the Collector that it was used in caring
the
contraband
goods
without
the
knowledge or connivance of the owner,
his agent, if any, and the person-incharge of the animal, cart, vessel or other
conveyance and that each of them had
taken
all
reasonable
and
necessary
precautions against such use.

(6) Where on an application in
that behalf being made to Collector
within one month from any order of
confiscation made under sub-section (2),
or as the case may be, after issuing notice
on his own motion within one month
from the order under that 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 confiscation under sub-section(2)
or sub-section (6) may, within one month
from the date of the communication to him
of such order, appeal to judicial authority
as the State Government may appoint in
this behalf and the judicial authority shall,
after giving an opportunity to the appellant
426 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Section 72 of the Act stipulates that
whenever an offence punishable under the
Act has been committed then every thing or
article seized in respect of which such
offence has been committed, Section 72 of
the Act empowers the Collector to
confiscate the articles enumerated therein
which are in any manner connected with
any offence punishable under the Act.

10. The sole question involved in this
matter is whether the Judicial Magistrate
has got any jurisdiction to deal with the
matter in respect of the release of a vehicle
seized under the provisions of the Act
while in connection thereof, confiscation
proceedings are pending before the District
Magistrate.

11. The issue involved in this matter
has been a debatable point in the legal
circle for long, but the controversy has now
been set at rest by the Division Bench
judgment of this Court passed in Virendra
Gupta (supra).

12. Before referring to the judgment
of the Division Bench in Virendra Gupta
(supra) it would be appropriate to discuss
the law promulgated in Chandra Pal (supra)
and Vikas Kumar (supra) decided on
12.2.2021 and 22.1.2020 respectively,
relied upon by the learned counsel for the
petitioner.

13. In Chandra Pal (supra) it was
found that on challenge of the order of the
Magistrate refusing to release the vehicle
seized under the provisions of the Excise
Act, the revisional court in a criminal
revision filed against the said order of the
Magistrate
concluded
that
since
proceedings under section 72 of the Act are
pending, no directions can be issued for the
release of the vehicle in question. The
learned Single Judge observed that albeit
the release application was rejected by the
Magistrate and the criminal revision filed
against the said rejection order was also
dismissed by the revisional court but both
the courts declined to decide the issue
regarding
their
own
jurisdiction
for
releasing the vehicle in exercise of powers
under the Code in respect of the vehicle
which has been seized and confiscation
proceedings in respect of which are
pending consideration before the District
Magistrate under section 72 of the Act and
since the said issue remains unanswered by
both the subordinate courts and their orders
were silent on the point of their own
jurisdiction, the application under section
482 Cr.P.C. was allowed and the matter
was remitted to the Magistrate to decide the
release application afresh in the light of the
observations
made
in
the
judgment
aforesaid.

14. In Vikas Kumar (supra), the
learned Single Judge of this Court while
referring to Sunderbhai Ambalal Desai,
AIR 2003 SC 638, Nand Vs. State of
U.P., 1996 Law Suit (All) 423, Jai
Prakash Vs. State of U.P., 1992 AWC
7 All. Pramit Vs. State of U.P. & Anr.
427
1744 and Kamaljeet Singh Vs. State of
U.P. 1986 U.P. Cri. Ruling 50 (Alld)
opined that in the matter of release of a
vehicle, the Magistrate Court should follow
the procedure as contemplated under
section 457 Cr.P.C. promptly. In the said
case also, the application for release of the
vehicle seized under the provisions of the
Act in respect of which confiscation
proceedings were pending before the
District Magistrate under section 72 of the
Act was rejected. The application u/s 482
Cr.P.C. was allowed and the Magistrate
concerned was directed to decide the
release application afresh in the light of the
observations made in the body of the said
judgment.

15. Since the Chandra Pal (supra)
case deals with another aspect of the matter
which is not a subject matter of the instant
petition, it offers no assistance to the case
of the petitioner.

16. In Jaikawar (supra) and Akhilesh
Kumar (supra), the issue involved was
identical and the same and it was explicitly
held in both the judgments that during
confiscation proceedings pending in respect
of a vehicle involved under the provisions
of the Excise Act, the Magistrate has no
power under Sections 451 and 457 Cr.P.C.
to release the said vehicle and a Division
Bench judgment of this Court in Virendra
Gupta Vs. State of U.P., 2019 (6) ADJ
432 was relied upon in both the judgments
in support of the conclusion arrived at
therein.

17. In Virendra Gupta Vs. State of
U.P., 2018 105 AllCriC 518, learned
Single Judge of this Court while referring
to the discordant views expressed by the
learned Single Judges of this Court in
several decisions over the subject, found it
appropriate to refer the matter to the larger
Bench to set the controversy at rest and the
following question was found to be arisen
for consideration by the Court which was
as hereunder:

"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?"

18. On reference, the matter was dealt
with by the Division Bench of this Court in
Virendra Gupta (supra) wherein various
laws on the subject were taken into
consideration
such
as
Sunderbhai
Ambalal Desai vs. State of Gujarat, 2002
(10) SCC 283, Nand vs. State of U.P.,
1997 (1) AWC 41, Rajiv Kumar Singh
vs. State of U.P. and others, 2017 (5)
ADJ 351, Ved Prakash vs. State of U.P.,
1982 AWC 167 All, (G.N.C.T. of Delhi)
vs. Narender, (2014) 13 SCC 100,
General Insurance Counsel and others
Vs. State of Andhra Pradesh and others,
Muntazir Vs. State of U.P. and Another,
Dilip Sinh Ram Sinh Solanki Vs. State of
Gujarat and Mustafa and Another Vs.
State of U.P. and Another and the
Division Bench expatiated upon the correct
legal position to be kept in mind by the
Magistrate at the time of dealing with the
issue of release of any thing seized under
the provisions of the Act and in connection
of which confiscation proceedings are
going on before the Collector under section
72 of the Act and it was concluded by the
Division Bench of this Court as follows :

"Section 72 of the 'Act' which is
admittedly a local act does not contain any
428 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subsection (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 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'.

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."

19. The Division Bench got an
opportunity to examine the various aspects
of the matter pertaining to the release of a
vehicle to which provisions of Sections 451
and 457 Cr.P.C. were applicable and
Sunderbhai Ambalal Desai (supra) case
was distinguished on the point that the
Hon'ble Supreme Court in the said case 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 the section 5 of the Code of
Criminal Procedure nor any direction in
respect of the vehicle seized under any
special enactment was specifically given by
the Hon'ble Supreme Court. Further, the
law laid down by the Single Bench of this
Court in Ved Prakash (supra) explaining
the power of the Magistrate to release the
vehicle seized under the provisions of the
Excise Act in respect of which confiscation
proceedings are going on was held as a
good and correct law on the subject by the
Division Bench.

20. To refer the view taken in Ved
Prakash (supra) which was marked as a
correct law on the subject shall be
advantageous and relevant at this juncture.
The legal principle which was enumerated
in Ved Prakash (supra) is that the
Magistrate is denuded of his jurisdiction to
release anything under section 457 Cr.P.C.
seized in connection with a criminal case in
respect of which confiscation proceedings
under section 72 of the Act are pending.

21. Hence, in view of the decision of
the Division Bench of this Court in
Virendra
Gupta
(supra)
wherein
the
reference made in Virendra Gupta (referred
by learned Single Judge of this Court)
(supra) was answered as mentioned herein-above. The controversy sets at rest and it
can safely be held that if a vehicle is seized
under the provisions of the Excise Act and
confiscation proceedings in respect thereof
are going on before the Collector, a Judicial
Magistrate has got no jurisdiction to release
the aforesaid vehicle. Needless to say that
even if the petitioner before the Court is the
7 All. Pramit Vs. State of U.P. & Anr.
429
registered owner of the vehicle, this fact
does not offer any certificate regarding his
entitlement to move an application for
release of such vehicle before the Court of
a Judicial Magistrate who is denuded of his
jurisdiction
in
such
matters
as
the
jurisdiction is an ornament of the Court
which cannot be imposed or created and it
is inherited in a particular Court.

22. Mustafa Vs. State of Uttar
Pradesh & Ors. decided by the Hon'ble
Supreme Court in Civil Appeal No.6438
of 2019 (arising out of SLP (Civil)
No.11110 of 2018) on 20.8.2019 is another
authority on the subject of this petition
wherein legal position as enumerated by
the Division Bench of this Court in
Virendra Gupta (supra) has been reiterated
and it was so concluded:

"30)
After
examining
the
provisions of the Act, we hold that the
Collector has exclusive jurisdiction to
confiscate the vehicles and in case the
seized things are subject to speedy wear
and tear or natural decay, he may order to
sell the same in the manner prescribed
under sub-section (3) of Section 72 of the
Act. Sub- section (4) deals with distribution
of sale proceeds when the seized thing is
sold which is subject to wear and tear and
natural decay or when it is expedient in
public interest to do so. Sub- section (8) of
Section 72 of the Act deals with a situation
where a prosecution of an offence is
instituted in relation to which confiscation
was ordered, the thing or animal shall be
disposed of subject to the provisions of
sub-section (4) of Section 72 of the Act in
accordance with the order of the Court. The
order of the Court in sub-section (8) of
Section 72 of the Act is after conclusion of
the prosecution which is different from the
seized things which are subject to speedy
wear and tear or natural decay as
contemplated by sub-section (3) of Section
72 of the Act.

31) In view of the above, we do
not find any error in the order passed by the
High Court which may warrant interference
in the present appeal. Since the High Court
has decided the matter only on the question
of jurisdiction of the Collector to order
confiscation, the matter is remitted back to
the High Court to exercise power of
judicial
review
over
the
order
of
confiscation passed by the Collector and as
affirmed by the District Judge. The appeal
is disposed of accordingly."

23. In view of the above settled legal
position, the decision made in Vikas Kumar
(supra) and relied upon by the learned
counsel for the petitioner is also not helpful
to him in any manner in the issue involved
in the case in hand.

24. In the impugned order dated
19.12.2023 passed by the Chief Judicial
Magistrate, Shamli, reliance has been
placed over the decision of this Court in
Virendra Gupta Vs. State of U.P. (D.B.)
(Criminal Revision No.2177 of 2018, order
dated 26.4.2019) and on the basis thereof it
was
held
that
if
the
confiscation
proceedings under Section 72 of the Excise
Act are pending, the seized property under
the said Act cannot be released by the
Magistrate in exercise of its power under
Section 457 Cr.P.C. and the power to
release such property to be exercised by the
Magistrate is barred under the provisions of
Sub-section (1) of Section 72 of the Excise
Act.

25. In the impugned order dated
6.4.2024 passed by the learned District
Judge, Shamli, reliance has been placed
upon Mustafa (supra) passed by the
430 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Supreme Court and the judgment
passed by Division Bench of this Court in
Virendra Gupta (supra) and relying upon
the
aforesaid
decisions,
the
criminal
revision was dismissed by the leaned
District Judge, Shamli by the impugned
order dated 6.4.2024.

26. The aforesaid discussion brings
the Court to the conclusion that if
confiscation proceedings are going on
before the Collector in respect of release of
a vehicle seized under the provisions of
U.P. Excise Act, 1910, the Judicial
Magistrate has got no jurisdiction to release
the same and this conclusion is drawn on
the basis of the law promulgated by
Hon'ble Supreme Court in Mustafa (supra)
and this Court in Virendra Gupta (Alld.)
(D.B.) (supra) which is authoritative law on
the subject.

27. Hence, both orders dated
19.12.2023 passed by the Chief Judicial
Magistrate, Shamli and dated 6.4.2024
passed by the District Judge, Shamli, in my
considered opinion are having no perversity
or legal lacuna and need no interference or
direction to be issued by this Court in the
instant Petition. The Petition under article
227 of the Constitution of India has no
force and is liable to be dismissed and is
accordingly dismissed.
----------
(2024) 7 ILRA 430
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.07.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482. No. 617 of 2020
And
Other Connected Cases

M/s Kitply Industries & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Amit Saxena, Sr. Advocate, Sri Anupam
Laloriya

Counsel for the Opposite Parties:
Sri Mithilesh Kumar, A.G.A., Sri Sushil
Shukla

A. Criminal Law - bunch of cases- commercial
transaction between parties- number of cheques
allegedly issued in favour of complainant by
applicant
company
dishonoured-
complaint
proceedings under Section 138, 141 and 142 NI
Act- summons issued against applicants n
excluding the applicant company as it was not
arrayed
as
accused-
summoning
order
challenged
under
criminal
revision-matter
remanded- applicant company impleaded to fill
legal lacuna-fresh summoning order passedagain challenged in criminal revision-revision
dismissed- both the summoning order and order
dismissing revision under challenge.

B. Applicants have no right to challenge the
order of revisional court remanding the matterno legal requirement of the accused to be heard
at the stage of summoning-complaint-opposite
party has specifically stated opposite party
(Company) has issued
cheques-trial court
committed no error in considering impleadment
application-however, trial court committed two
errors-impleadment application not decided
finally- reason assigned to summon applicants
suffered with a legal error-complainant could
not be penalised- summoning orders in all cases
set aside- matter remitted back to trial court to
be decided afresh-Application disposed of.
(Paras 9 and 10)

HELD:
The impugned order has two errors, first
impleadmentapplication was not finally decided
and secondly, reason assigned tosummon
applicants suffered with a legal error, however,
for botherrors, the complainant could not be