# Satyabhan Singh v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-31
- **Case number:** Matter Under Article 227 No. 10928 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satyabhan-singh-v-state-of-u-p-ors-49916
- **Pages:** 11

## Headnote

A. Criminal Law - Confiscation of truck -
Delhi Excise Act, 2009 - Section 61 - U.P.
Excise Act, 1910 - Sections 5(A)(2), 60, 61
& 72 - N.D.P.S. Act,1985 - Section 21/22 -
Collector is sole authority under the Act to
pass an order for confiscation/release of
vehicle so seized under the law.

Collector is vested with exclusive jurisdiction to
confiscate any such thing like animal cart or
other conveyance, if he is of opinion that this is
subject to speedy wear and tear or natural
decay or it is otherwise expedient in public
interest, whether or not prosecution charges has
been instituted or concluded while exercising
powers of confiscation provided u/s 2 and 3 of
the Act. The collector has not to wait for
conclusion of trial relating to criminal offence
under the Act and while confiscation order, he
316 INDIAN LAW REPORTS ALLAHABAD SERIES
has to record his satisfaction that the offence
under the Act has been committed and the
vehicle has been seized by competent official
under provisions of the Act after giving
opportunity of hearing to the person who claims
to be owner of the vehicle. (Para 17)

In present case, this is admitted fact that no
application was filed by the applicant before
Court of Judicial Magistrate concerned for
release
of
seized
truck,
the
confiscation
proceedings were initiated by Collector (ADM
F&R) and on report of S.S.P, Mathura and after
giving
opportunity
of
hearing
to
the
applicant/petitioner,
learned
ADM
(F&R)/
collector passed impugned order of confiscation
of the vehicle as such. Confiscation proceedings
are not pending and are already decided by
competent authority. (Para 16)

B. Once a vehicle is seized in violation of
the provisions of U.P. Excise Act by
competent police or Excise officer, a heavy
burden is lied upon the owner of the
vehicle which he has to discharge before
the authorities concerned that firstly, he had
no knowledge that an illegal act (carrying the
illegal liquors) was being done with said vehicle
and secondly, that he applied all the necessary
safety and precautions to see that such an Act
may not be committed by the said vehicle. The
petitioner, in fact, failed to discharge his burden
before ADM, as well as before the District
Judge, that is the appellate authority.

The learned Additional District Magistrate while
passing confiscation order stated that due to
transportation of illicit liquor in the State of U.P.,
the vehicle is found to be involved in smuggling
of
liquor
and
its
seizure,
therefore
its
confiscation is found proper and therefore, it
has to be disposed of in terms of Section 72
U.P. Excise Act. (Para 19)

C. Principle of Vicarious Liability - Even if
the owner/petitioner was not found on
the spot along with when the vehicle was
seized in presence of co-accused, the
principle of vicarious liability will apply to
this police case as the vehicle was
operated by the driver at the time of
incident who was not the owner. The
petitioner has failed to prove the fact before the
Court below that the vehicle was transported
with
illicit
liquor
without
knowledge
or
connivance except the stand taken by him that
he was not aware about day to day movement
of the vehicle as the same was operated by the
driver on a fix rate paid to him on monthly
basis. (Para 20)

D. An option has been given to the
petitioner to pay the market value of the
vehicle as ascertained by ARTO in lieu of
its confiscation and therefore, it cannot be
said that the petitioner has become
entirely deprived of his vehicle by the
impugned order and if the vehicle has not
been auctioned yet, the collector will afford him
an opportunity to deposit the market price of
the vehicle as determined by ARTO concerned in
lieu of confiscation and if he does so, the vehicle
will be released in his favour and the amount
deposited by him in lieu of confiscation will lie in
the custody of Government subject to provisions
of Section 72(8). (Para 21)

Writ petition dismissed. (E-4)

Precedent fo

## Text

4 All. Satyabhan Singh Vs. State of U.P. & Ors.
315
to
incorrect
interpretation,
application
Paper No. 65-C was allowed only on the
ground of earlier order dated 29.08.2018,
taking away the mandate of order of the
High Court dated 07.02.2019.

24. The order of High Court dated
07.02.2019 has annulled the effect of order
dated 29.08.2018 passed by Judge, Small
Causes Court, Saharanpur, with liberty to
petitioner to raise this issue again after, in
case, any order has been passed for striking
off of the defence. The spirit of the order of
High Court is that, in case of passing of
fresh order for striking off of the defence,
petitioner would have full liberty to
challenge the same and court below is
required to decide the same on merits,
without being impressed with the its earlier
order dated 29.08.2018.

25. Even otherwise, while passing the
order considering all the evidence under
Order XV Rule 5, C.P.C. Court must have
been very conscious, as passing of such
order would take away the liberty of
petitioner-defendant to lead the evidence
and all other consequences, certainly
resulting into allowing of suit without any
protest.

26. Therefore, under such facts and
circumstances of the case, the petition is
allowed.
The
impugned
order
dated
14.11.2022, passed by Judge, Small Causes
Court, Saharanpur in SCC Suit No. 25 of
2014, and order dated 31.01.2023 passed
by District Judge, Saharanpur in SCC
Revision No. 132 of 2022 are hereby
quashed.

27. Matter is remanded back to Judge
Small Causes Court, Saharanpur to decide
afresh the application Paper No. 41-Ga,
objection paper No. 44-Ga, application
Paper No. 65-C and objection Paper No.
67-C maximum within two months from
the production of certified copy of this
order in light of observation made herein
above.

28. It is made clear that petitionerdefendant is not granted liberty to file any
fresh paper except judgments of courts.
----------
(2023) 4 ILRA 315
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matter Under Article 227 No. 10928 of 2022

Satyabhan Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Petitioner:
Sri Ashutosh Singh

Counsel for the Respondents:
G.A.

A. Criminal Law - Confiscation of truck -
Delhi Excise Act, 2009 - Section 61 - U.P.
Excise Act, 1910 - Sections 5(A)(2), 60, 61
& 72 - N.D.P.S. Act,1985 - Section 21/22 -
Collector is sole authority under the Act to
pass an order for confiscation/release of
vehicle so seized under the law.

Collector is vested with exclusive jurisdiction to
confiscate any such thing like animal cart or
other conveyance, if he is of opinion that this is
subject to speedy wear and tear or natural
decay or it is otherwise expedient in public
interest, whether or not prosecution charges has
been instituted or concluded while exercising
powers of confiscation provided u/s 2 and 3 of
the Act. The collector has not to wait for
conclusion of trial relating to criminal offence
under the Act and while confiscation order, he
316 INDIAN LAW REPORTS ALLAHABAD SERIES
has to record his satisfaction that the offence
under the Act has been committed and the
vehicle has been seized by competent official
under provisions of the Act after giving
opportunity of hearing to the person who claims
to be owner of the vehicle. (Para 17)

In present case, this is admitted fact that no
application was filed by the applicant before
Court of Judicial Magistrate concerned for
release
of
seized
truck,
the
confiscation
proceedings were initiated by Collector (ADM
F&R) and on report of S.S.P, Mathura and after
giving
opportunity
of
hearing
to
the
applicant/petitioner,
learned
ADM
(F&R)/
collector passed impugned order of confiscation
of the vehicle as such. Confiscation proceedings
are not pending and are already decided by
competent authority. (Para 16)

B. Once a vehicle is seized in violation of
the provisions of U.P. Excise Act by
competent police or Excise officer, a heavy
burden is lied upon the owner of the
vehicle which he has to discharge before
the authorities concerned that firstly, he had
no knowledge that an illegal act (carrying the
illegal liquors) was being done with said vehicle
and secondly, that he applied all the necessary
safety and precautions to see that such an Act
may not be committed by the said vehicle. The
petitioner, in fact, failed to discharge his burden
before ADM, as well as before the District
Judge, that is the appellate authority.

The learned Additional District Magistrate while
passing confiscation order stated that due to
transportation of illicit liquor in the State of U.P.,
the vehicle is found to be involved in smuggling
of
liquor
and
its
seizure,
therefore
its
confiscation is found proper and therefore, it
has to be disposed of in terms of Section 72
U.P. Excise Act. (Para 19)

C. Principle of Vicarious Liability - Even if
the owner/petitioner was not found on
the spot along with when the vehicle was
seized in presence of co-accused, the
principle of vicarious liability will apply to
this police case as the vehicle was
operated by the driver at the time of
incident who was not the owner. The
petitioner has failed to prove the fact before the
Court below that the vehicle was transported
with
illicit
liquor
without
knowledge
or
connivance except the stand taken by him that
he was not aware about day to day movement
of the vehicle as the same was operated by the
driver on a fix rate paid to him on monthly
basis. (Para 20)

D. An option has been given to the
petitioner to pay the market value of the
vehicle as ascertained by ARTO in lieu of
its confiscation and therefore, it cannot be
said that the petitioner has become
entirely deprived of his vehicle by the
impugned order and if the vehicle has not
been auctioned yet, the collector will afford him
an opportunity to deposit the market price of
the vehicle as determined by ARTO concerned in
lieu of confiscation and if he does so, the vehicle
will be released in his favour and the amount
deposited by him in lieu of confiscation will lie in
the custody of Government subject to provisions
of Section 72(8). (Para 21)

Writ petition dismissed. (E-4)

Precedent followed:

1. Ved Prakash Vs Uttar Pradesh, 1987 AWC 167

2. Virendra Gupta Vs State, Criminal Revision
No. 2177 of 2018 (Para 6)

3. State (NCT of Delhi) Vs Narender, 2014 (13)
SCC 100 (Para 6, 13)

4. Mustafa Vs St. of U.P. & anr., Civil Appeal No.
6418 of 2019, SCC online Web edn p. 1 (Para 6, 16)

Precedent cited:

1. Sunder Bhai Ambalal Desai Vs St. of Guj.,
2003 (46) A.C.C. 223 (Para 8)

2. Chadra Pal Vs St. of U.P. & anr., Judgment of
this
Hon'ble
Court
dated
12.02.2021
in
Application u/s 482 No. 1325 of 2021 (Para 9)

3. Pappu Yadav @ Bhoo Prakash Yadav Vs St. of
U.P., (2014) AILJ 50 (Para 10)

Present petition challenges the order
dated 30.05.2022, passed by learned
4 All. Satyabhan Singh Vs. State of U.P. & Ors.
317
District Judge, Mathura in Civil Appeal No.
25
of
2020
(Satyabhan
Vs.
District
Magistrate and another) as well as order
dated 17.01.2019 passed by Additional
District Magistrate (F&R), Mathura in Case
No. 01798 of 2018 (Satyabhan Vs. State
State).

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
petitioner Shri Ashutosh Singh and learned
A.G.A. for the State.

2. Instant criminal Misc. petition
under Article 227 of the Constitution of
India has been filed by the petitioner to set
aside the order dated 30.05.2022 passed by
learned District Judge, Mathura in Civil
Appeal No. 25 of 2020 (Satyabhan Vs.
District Magistrate and another) as well as
order
dated
17.01.2019
passed
by
Additional District
Magistrate
(F&R),
Mathura in Case No. 01798 of 2018
(Satyabhan Vs. State State) under Section
72 U.P. Excise Act, 1910 otherwise
petitioner shall suffer irreparable loss. By
the impugned order dated 17.01.2019,
learned A.D.M (F&R) has passed an order
of confiscation of the truck bearing
registration No. HR 67 B 1888 seized by
police under Sections 60/72 Excise Act
under Crime No. 382/2017 under Sections
420, 120B I.P.C.

3. Learned ADM (F&R) has directed
auction of said vehicle and sale proceeds be
deposited with Government treasury in
criminal head, and also given an option to
vehicle owner to deposit the current price
of vehicle as ascertained by R.T.O.

4. Feeling aggrieved by the said
confiscation order passed by learned ADM
(F&R), the petitioner/owner of vehicle
preferred a civil appeal under Section 72
Excise Act, before District Judge, Mathura
who dismissed the appeal and affirmed the
impugned order passed by learned ADM
(F&R). The factual matrix of the case in
brief are that the informant Excise
Inspector, during his course of duty
received an information on 22.09.2017 that
a
truck
of Ashok
Leyland
bearing
registration No. HR 67 B 1888 was likely
to pass through Laxminagar crossing
Mathura which is loaded with cartons of
illicit liquor. The informant laid a trap
placing reliance on said information with
assistance of his colleagues and intercepted
the said truck, however, the truck driver
tried to run away by stepping down from
the truck, but he was caught by one Excise
Constable at around 1900 hours and
another person who was sitting beside the
driver in the cabin of the truck was also
caught by team of excise officials in the
process of escape. The arrested person
disclosed their name as Vinod (Driver) and
Parmendra. On searching the truck 100
cartons of Royal Stag brand classic whisky
bottles and 40 half bottles of Royal Stag
were found. The wrappers of said bottles
displayed that "For Sale in Haryana Only".
The papers of the truck were seized from
dashboard of the vehicle which revealed
that Satyawan s/o Ram Singh resident of
Risalu, Panipat was registered as owner of
the vehicle. The intensity of the seized
liquor was tested on spot by breaking open
the seal of three bottles which were
separately sealed as sample. The cartons
consisted 1200 full and 960 half bottles of
whisky.

5. As said truck was caught on the
charge of in the inter-state smuggling of the
liquor, a report was made by S.S.P. Mathura
on 31.10.2017 to District Magistrate for
initiating confiscation proceedings under
318 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 72 Excise Act, according to rules, a
suo moto notice was issued on 6.11.2017 to
the petitioner and service of notice on
petitioner was held to be sufficient and an
ex-parte confiscation order was passed on
22.11.2017. However, same was recalled
on application of petitioner and after
affording him an opportunity of hearing the
impugned order for confiscation of vehicle
was passed by ADM(F&R) on 17.01.2019
and civil appeal against that order was
dismissed by District Judge on 30.05.2022.

6. Learned District Judge placing
reliance on observations of Apex Court in
Mustafa Vs. State of Uttar Pradesh and
others, C.A. No. 6418/ 2019 (SC), (GNTC
of Delhi) Vs. Narender (2014) 13 SCC,
100 and Ved Prakash Vs. Uttar Pradesh
1987 AWC 167, Virendra Gupta Vs.
State Criminal Revision No. 2177 of 2018
decided by this Court that the case law
cited by learned counsel for the appellant is
not applicable to the facts of the case as the
alleged vehicle was carrying the illegal
liquors seized by Excise officials and was
involved in inter-state transportation of the
same against rules. No fault could be found
in impugned order passed by learned ADM
(F&R) Mathura, while issuing confiscation
order in regard to said truck. He finally
concluded that there is no perversity,
illegality, impropriety, material irregularity
or jurisdictional error in order passed by
learned Additional
District
Magistrate
concerned and thus, affirmed the impugned
order and dismissed the civil appeal
preferred by the petitioner.

7. Learned counsel for the petitioner
submitted that the said truck was hired by
Vinod son of Ramphal for Rs. 45,000/- rent
on oral agreement as he was known to the
petitioner for last 4 to 5 years. However, on
22.09.2017 said truck was seized by excise
officials
within
jurisdiction
of
P.S.
Jamunapur, District- Mathura on charges of
inter-state smuggling of liquor and was
lodged by Excise Inspector in this regard.
There is no dispute regarding ownership of
the petitioner regarding the vehicle, he is
registered owner of the said truck and
wrongly added as an accused in said
criminal case only due to the fact that he is
owner of the said truck. The police filed a
charge-sheet against him in said offence
and cognizance has been taken against him
by the Court. The petitioner had prayed for
bail before the Court below and he has
been released on bail. The order passed by
learned Additional
District
Magistrate
dated 22.11.2017 was an ex-parte order in
which the vehicle is directed to be
confiscated,
the
petitioner
filed
an
restoration application for reviewing the
said ex-parte order before learned ADM
and same was recalled vide order dated
27.10.2018 and matter was reheard by him,
however, confiscation order with regard to
said vehicle was passed on 17.01.2019 and
he did not consider the fact that said truck
was used by driver Vinod on condition of
paying Rs. 45,000/- per month as rent to
the owner. The petitioner was not present at
the time of the incident on the spot and he
is not supposed to be aware of the day to
day commercial activities of the driver in
whose custody the truck was lying. Learned
District Judge also failed to appreciate the
facts of the case in proper manner and
dismissed his civil appeal preferred against
order of learned ADM. The said liquor was
not obtained from possession of the
petitioner, therefore the petitioner had to
seek constitutional remedy before this
Hon'ble Court. He further submitted that
the vehicle has been kept idle since long
resulting in wear and tear of the vehicle and
its efficacy is deteriorating day by day, he
earns his livelihood from this vehicle. This
4 All. Satyabhan Singh Vs. State of U.P. & Ors.
319
is admitted position that he was not arrested
on the spot.

8. Learned counsel for the appellant
placed reliance on pronouncement of
Hon'ble Apex Court in Sunder Bhai
AmbalaI Desai Vs. State of Gujarat 2003
(46) A.C.C.223 wherein Hon'ble Apex
Court observed that it is of no use to keep
such-seized 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 the
applications for return of such vehicles. In
case where the vehicle is not claimed by
the accused, owner, or the insurance
company or by third person, then such
vehicle may be ordered to be auctioned by
the Court.

9. Learned counsel for the appellant
also placed reliance on an AFR judgment of
this court dated 12.02.2021 in Application
under Section 482 No.1325 of 2021
Chadra Pal Vs. State of U.P. and
Another, wherein it is held in view of law
laid down by Apex Court as well as this
Court as cited in judgment, 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 with regard to
which are pending consideration before
District Magistrate under Section 72 of Act,
1910. However, the said issue remains
unanswered by both the courts below. Thus,
the order impugned in present application
cannot
be
sustained
on
account
of
erroneous reasoning and therefore, liable to
be quashed and matter is remitted to
concerned Magistrate to decide release
application of the applicant afresh in the
light of observations made herein above
within a period of one month.

10. Learned counsel for the appellant
further placed reliance on judgment of this
Court in Paapu Yadav alias Bhoo
Prakash Yadav Vs. State of U.P.(2014)
AIILJ 50,the fact of the case were
somewhat similar to present case as S.H.O
Sikandrarau, District-Hathras intercepted
an Indica car which was loaded with illicit
liquor and intoxicating power, acting on a
secret information. The petitioner was sole
occupant of the vehicle, the intoxicating
power
appeared
diazapam
powder
weighing 110 gms, he was apprehended
under Section 60 of United Provinces
Excise Act, 1910under Section 21/22 of
N.D.P.S. Act. He was released on bail in
due course and applied for release of
vehicle before Judicial Magistrate who
rejected the application on ground that
confiscation proceedings with regard to
said vehicle were under way before District
Magistrate. He made a representation
before District Magistrate under Section
5(A)(2) of Section 72 but same was
rejected and confiscation order was passed
and the vehicle was directed to be sold by
public auction. The appeal preferred against
order of District Magistrate was also
dismissed by learned Additional Sessions
Judge, Hathras. This Court observed that
the appeal against confiscation order passed
by District Magistrate will be heard as civil
appeal not criminal appeal by District
Judge. The word 'District Judge' is defined
in Section 3(17) of the General Clauses Act
as follows:-

"(17) "District Judge" shall mean the
Judge of a principal Civil Court of original
jurisdiction, but shall not include a High
320 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in the exercise of its ordinary or
extraordinary original civil jurisdiction." It
is evident from the It is evident from the
Notification that the appointed Appellate
Judicial Authority is District Judge. An
appeal to the District Judge should not
have been heard or registered as Criminal
Appeal. It should have been registered as
Civil Appeal and should have been
disposed of by the District Judge himself.
Whenever a Judicial Authority is appointed
as persona designata, hearing should be
done by that Authority and as far as
possible benefit of other Acts should not be
taken." Endeavour should be made to
decide the appeal by the District Judge
himself. In Pappu Yadav's case this Court
quashed
impugned
order
of
District
Magistrate confiscating the vehicle of the
petitioner and the order passed by the
lower appellate court being erroneous and
illegal and the respondents were directed to
release the said Car in favour of the
petitioner
immediately
in
the
same
condition as it was on the date of its
seizure. However, aforesaid case appears to
be decided on ground that the Additional
District Judge had decided the appeal as a
criminal appeal instead of civil appeal and
the same should have been decided by
District
Judge
himself
instead
of
transferring the same to concurrent of
Additional District Judge. The Collector
while exercising powers of confiscation
under Section 72 of said Act is not a
criminal
court
rather
the
Collector
exercises its powers as a revenue authority.
This Court also observed that the lower
appellate court, thus, has not applied his
mind to the facts of the case and the law
applicable thereto and dismissed the appeal
on the same ground as taken by the
Collector for his satisfaction to confiscate
the vehicle. It further observed in para
11that there is even not a single word in the
confiscation
order
to
meet
out
the
objections made as above by the petitioner.
This clearly indicates that the Collector
while passing the impugned order of
confiscation of the vehicle of the petitioner
has not applied his mind to satisfy himself
that the petitioner has committed any
offence under any provisions of the U.P. Act
No. IV of 1910. Thus, the impugned order is
in the sheer violation of the legislative
mandate as mentioned in sub-section (2) of
Section 72 of the Act. The reason recorded
by the Collector in his satisfaction that the
petitioner has committed an offence due to
which his car has become liable to
confiscation simply because he disclosed
his name as Pappu Yadav while in fact his
name was Bhoo Prakash. In this regard, on
inquiry made by the Collector itself, it was
found that Pappu and Bhoo Prakash are
one and the same person and Pappu Yadav
is his nick name. Thus, the reason recorded
for his satisfaction by the Collector that the
petitioner has committed offence due to
which his car has became liable to
confiscation, is baseless. The Collector
while exercising its discretionary power
under Section 72 of U.P. Act No. IV of 1910
is not supposed to pass an order in a
routine manner. The Collector has to apply
his mind after going through the record or
material of his own and record independent
reasons for satisfaction that an offence
under the said Act has been committed due
to which the said vehicle is liable to be
confiscation in sub-section (1) of Section
72 of the Act."

11. Provisions of Section 72 of the
Act is reproduced as follows:-

72.
What
things
are
liable
to
confiscation - (1) Whenever an offence
punishable under this Act has been
committed-
4 All. Satyabhan Singh Vs. State of U.P. & Ors.
321

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

(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 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 thereof proves to
the satisfaction of the Collector that it was
used in carrying the contraband goods
without the knowledge or connivance of the
owner, his agent, if any, and the person-incharge of the animal, cart, vessel or other
conveyance and that each of them had
taken
all
reasonable
and
necessary
precautions against such use.
(6) Where on an application in that behalf
being made to Collector within one month
322 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subsection 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 subsection (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 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. "

12. On a meticulous analysis of Section
72 of U.P. Act No. IV of 1910, it emerges out
that the Collector is empowered to confiscate
anything described under Section 72(1) of the
Actwhere the conditions prescribed in sub
Section(1)(a) to (e) is satisfied and he has to
afford a reasonable opportunity of being heard
to the owner of the vehicle after issuing a notice
in writing informing him of the grounds on
which such confiscation is proposed and an
opportunity of making a representation in
writing against such proposed confiscation.

13. Per contra, learned A.G.A. submitted
that there is no illegality, irregularity or
perversity in impugned orders passed by
learned
confiscating
authority, Additional
District Magistrate (F&R) who has confiscated
the vehicle in question, in exercise of powers
under Section 72 of U.P. Excise Act, 1910
conferred on collector as well as order passed
by learned District Judge, Mathura. The
impugned orders are well within jurisdiction of
both the statutory authorities and in consonance
with provisions of Section 72 of the Act. So far
as the judgment of this Court in Chandra Pal
Vs. State of U.P. and Another (supra) is
concerned, this case was decided on its own
facts as in that case the release application of the
vehicle seized under provisions of Section 62,
63, 72 U.P. Excise Act was moved before
learned Additional Chief Judicial Magistrate
who had rejected the application for release of
the vehicle by placing reliance upon judgment
of Apex Court in State (NCT of Delhi) Vs.
Narender 2014 (13) SCC 100 without
deciding his jurisdiction to entertain the release
application filed by the applicant seeking
release of seized vehicle in terms of Section 457
Cr.P.C. and the same was affirmed by learned
Sessions Judge in criminal revision filed by the
applicant against the order of learned
Magistrate.

14. This Court observed that orders
impugned could not be sustained on
account
of
erroneous
reasoning
and
therefore, liable to be quashed.

15. This Court also observed that
upon comparison of provisions in Delhi
Excise Act 2009 as well as U.P. Excise Act,
4 All. Satyabhan Singh Vs. State of U.P. & Ors.
323
1910, the Court finds that there is no
provision in Act of 1910 similar to the
provisions contained in Section 61 of U.P.
Excise Act accordingly, ratio laid down in
Section 61 of the Delhi Excise Act, 2009
bars the jurisdiction of all Courts but, even
in the absence of similar provisions in the
State (NCT of Delhi) Vs Narender ( supra)
is confined to matters arising out of Delhi
Excise Act as such, aforesaid judgement is
distinguishable and the ratio laid down
therein cannot be applied ipso facto for
deciding release application in respect of
seized vehicle regarding which confiscation
proceedings are pending in terms of
Section 72 of Act, 1910.

16. In present case, this is admitted
fact that no application was filed by the
applicant
before
Court
of
Judicial
Magistrate concerned for release of seized
truck, the confiscation proceedings were
initiated by Collector (ADM F&R) and in
present case on report of S.S.P, Mathura
and after giving opportunity of hearing to
the
applicant/petitioner,
learned ADM
(F&R)/ collector passed impugned order of
confiscation of the vehicle as such. In
present case, confiscation proceedings are
not pending and are already decided by
competent authority. It is not in dispute that
collector is sole authority under the Act to
pass an order for confiscation/release of
vehicle so seized under the law. In this
regard has been stated by Hon'ble Apex
Court in Civil Appeal No. 6418 of 2019
Mustafa Vs. State of U.P. and Anothers
reported in SCC online Web edn p.1,
wherein Hon'ble Apex Court observed that
Section 61 of the Delhi Excise Act, 2009
bars the jurisdiction of all Courts but, even
in the absence of similar provisions in the
Act, the principle laid down in State( NCT
of Delhi) Vs. Narender 2014, is applicable
in the present case as the Act is inconsistent
with the provisions of the Code. The Court
held
that
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 subsection (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.

17. On perusal of aforesaid dictum of
Hon'ble Apex Court together with the
statutory provisions under Section 72 of the
Act, it can be held that collector is vested
with exclusive jurisdiction to confiscate
any such thing like animal cart or other
conveyance, if he is of opinion that this is
subject to speedy wear and tear or natural
decay or it is otherwise expedient in public
interest, whether or not prosecution charges
has been instituted or concluded while
exercising powers of confiscation provided
under Section 2 and 3 of the Act. The
collector has not to wait for conclusion of
trial relating to criminal offence under the
Act and while confiscation order, he has to
record his satisfaction that the offence
under the Act has been committed and the
324 INDIAN LAW REPORTS ALLAHABAD SERIES
vehicle has been seized by competent
official under provisions of the Act after
giving opportunity of hearing to the person
who claims to be owner of the vehicle.

18. On perusal of Section 72 of the
Act, it appears that in Section 72(V)(b) it is
provided that "Without prejudice to the
provisions
of
clause
(a),
no
order
confiscating any animal, cart, vessel, or
other conveyance shall be made if the
owner thereof proves to the satisfaction of
the Collector that it was used in carrying
the
contraband
goods
without
the
knowledge or connivance of the owner, his
agent, if any, and the person incharge of
the animal cart, vessel or other conveyance
and that each of them had taken all
reasonable and necessary precautions
against such use."

19. Now, it is absolutely clear that
once a vehicle is seized in violation of the
provisions of U.P. Excise Act by competent
police or Excise officer, a heavy burden is
lied upon the owner of the vehicle which he
has to discharge before the authorities
concerned that firstly, he had no knowledge
that such an act was being done with said
vehicle and secondly, that he applied all the
necessary safety and precautions to see that
such an Act may not be committed by the
said vehicle. The petitioner, in fact, failed
to discharge his burden before Addl.
District Magistrate, as well as before the
District Judge, that is the appellate
authority. The learned Additional District
Magistrate while passing confiscation order
with regard to the vehicle has dealt with the
case of petitioner with prayer to release the
vehicle in his favour and after arriving at a
conclusion that the said vehicle has been
used in illegal smuggling of illicit liquor
which consists of 140 cartons of Royal Stag
brand manufactured in Haryana against
U.P. Excise, which is a serious offence
against State revenue and a conspiracy to
defeat the U.P. Excise policy and for that
reason an F.I.R lodged under Section 60/72
Excise Act along with Section 420, 120B
I.P.C.
He
also
stated
that
due
to
transportation of illicit liquor in the State of
U.P., the vehicle is found to be involved in
smuggling of liquor and its seizure,
therefore its confiscation is found proper
and therefore, it has to be disposed of in
terms of Section 72 U.P. Excise Act.

20. Learned District Judge has also
not found any infirmity, illegality or
perversity in appeal preferred against the
confiscation order which is by learned
Collector/ADM
(F&R).
Even
if
the
owner/petitioner was not found on the spot
along with when the vehicle was seized in
presence of co-accused, the principle of
vicarious liability will apply to this police
case as the vehicle was operated by the
driver at the time of incident who was not
the owner. The petitioner has failed to
prove the fact before the Court below that
the vehicle was transported with illicit
liquor without knowledge or connivance
except the stand taken by him that he was
not aware about day to day movement of
the vehicle as the same was operated by the
driver on a fix rate paid to him on monthly
basis.

21. Learned Collector has also given
an option in impugned order to owner of
the vehicle(present petitioner) to deposit
the current price of vehicle as ascertained
by ARTO and in that case, the vehicle will
not be auctioned, otherwise same will be
auctioned and the sale proceeds will be
deposited in Government treasury and this
order is in consonance with the provisions
of Section 72(2) proviso which provided
that in the case of anything (except an
4 All. Manoj Gupta @ Manoj Kumar Gupta Vs. State of U.P. & Anr.
325
intoxicant) or animal referred to in subsection (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. Therefore, the option given to
the petitioner to pay the market value of the
vehicle as ascertained by ARTO in lieu of
its confiscation and therefore, it cannot be
said that the petitioner has become entirely
deprived of his vehicle by the impugned
order and if the vehicle has not been
auctioned yet, the collector will afford him
an opportunity to deposit the market price
of the vehicle as determined by ARTO
concerned in lieu of confiscation and if he
does so, the vehicle will be released in his
favour and the amount deposited by him in
lieu of confiscation will lie in the custody
of Government subject to provisions of
sub-Section 8 of Section 72.

22. In view of the foregoing
discussions, I find no illegality, irregularity
or perversity in impugned orders passed by
learned
District
Judge
as
well
as
Collector/ADM (F&R) concerned and the
appeal is liable to be dismissed.

23. With above observations, the
present writ petition stands dismissed.
----------
(2023) 4 ILRA 325
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.03.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 706 of 2021

Manoj Gupta @ Manoj Kumar Gupta
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties
Counsel for the Applicant:
Sri Shashank Tripathi, Sri Atharva Dixit, Sri
Manish Tiwary (Senior Adv.)

Counsel for the Opp. Parties:
G.A., Sri Manish Tandon, Sri Rakesh Dubey, Sri
Sayed Imran Ibrahim

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 & Indian
Penal Code, 1860-Sections 147, 148,
149,302, 34, 307, 120B and Section 7 of
Criminal
Law
(Amendment)
Act-The
applicant was arrested at Chindwara,
Madhya Pradesh by U.P. Police-No transit
remand was obtained by the U.P. Police
from
the
concerned
Magistrate
at
Chindwara-applicant was produced before
the remand Magistrate Kanpur Nagar,
much after the expiry of 24 hours from the
date and time of his arrest.-the detention
of applicant by police after expiry of a
period of 24 hours from the time of his
arrest is manifestly illegal, the order of
remand passed by the Magistrate Kanpur
Nagar will not wipe out the aforesaid
illegality-Thus, the fact that the charge
sheet has been submitted against the
applicant within 90 days from the date
subsequent to the order of remand is
wholly misconceived and is of no help to
the state or the opposite party.(Para 1 to
38)

The application is allowed. (E-6)
List of Cases cited:

1. Madhu Limaye & ors. Vs St. of Bih. (1969)
AIR SC 1014

2. Manoj Vs St. of M.P. (1999) 3 SCC 715
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Mr. Anoop Trivedi, the
learned senior counsel assisted by Mr.
Ramesh Chandra Agrahari, the learned
counsel for applicant-Asim @ Pappu
Smart, Mr. Sayed Imran Ibrahim, the