# Vikas Kumar v. State of U.P. & Anr

- **Citation:** Application U/S 482 No. 33012 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-22
- **Case number:** Application U/S 482 No. 33012 of 2019
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-kumar-v-state-of-u-p-anr-46204
- **Pages:** 6

## Headnote

Criminal Law- Criminal Procedure Code (2
of 1974)- Sections. 451, 457 - Excise Act
Sections
60,
63,
72
-
Release
of
confiscated Vehicle - mere pendency of
confiscation
proceedings
before
the
District Magistrate u/s 72 of the U.P.
Excise Act shall not operate as a bar
against the release of the seized vehicle
which is required for trial under Section
60 of the U.P. Excise Act
 (Para 17,18, 19)

 Applicant registered owner of seized vehicle -
vehicle detained by police alleging it was
transporting liquor - release application rejected
by Judicial Magistrate only on the ground that
the
investigation
was
going
on
&
the
confiscation proceedings U/s 72 of UP Excise Act
were pending before the District Magistrate -
neither the State or any other person claimed
their ownership over the vehicle - Held - no
useful purpose will be served in keeping the
vehicle stationed at the police station in the
open yard for a long period allowing it to be
damaged with the passage of time. (Para 22)

Appeal allowed (E-5)

List of case cited :

## Text

3-5 All. Vikas Kumar Vs. State of U.P. & Anr.
1713
to who were the parties in the proceedings
or factum of acquittal. As such securing of
acquittal
by
co-accused
cannot
be
considered as relevant circumstances and
ground for exercising power under section
482 Cr.P.C., to quash the proceedings as
against those accused who has not faced the
trial. The judgment not inter parties cannot
justify the invocation of the doctrine of
issue stopple under the Law.

11. It is also well settled that power of
quashing the criminal proceedings at the
pre-trial stage should be exercised very
sparingly and with circumspection and that
too in the exceptional and rare case. The
extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the Court
to act according to its whim or caprice. As
such the inherent powers of the High Court
cannot normally be invoked, unless such
materials are of an unimpeachable nature,
which can be translated into legal evidence
in the course of trial.

12. As a fallout and consequences of
aforesaid discussion, I have no hesitation in
holding that even on the acquittal of coaccused, the charge sheet and criminal
proceeding pursuant thereto against the
remaining co-accused cannot be quashed
under section 482 Cr.P.C.

13. The application sans merit and is,
accordingly, dismissed.
----------

(2020)03-05ILR A1713
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2020

BEFORE
THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 33012 of 2019
Vikas Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Manvendra Narain Pathak

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

Criminal Law- Criminal Procedure Code (2
of 1974)- Sections. 451, 457 - Excise Act
Sections
60,
63,
72
-
Release
of
confiscated Vehicle - mere pendency of
confiscation
proceedings
before
the
District Magistrate u/s 72 of the U.P.
Excise Act shall not operate as a bar
against the release of the seized vehicle
which is required for trial under Section
60 of the U.P. Excise Act
 (Para 17,18, 19)

 Applicant registered owner of seized vehicle -
vehicle detained by police alleging it was
transporting liquor - release application rejected
by Judicial Magistrate only on the ground that
the
investigation
was
going
on
&
the
confiscation proceedings U/s 72 of UP Excise Act
were pending before the District Magistrate -
neither the State or any other person claimed
their ownership over the vehicle - Held - no
useful purpose will be served in keeping the
vehicle stationed at the police station in the
open yard for a long period allowing it to be
damaged with the passage of time. (Para 22)

Appeal allowed (E-5)

List of case cited :

1. Sunderbhai Ambalal Desai & C.M. Mudaliar
Vs. St. of Gujrat AIR 2003 SC 638

2. Nand Vs St. of UP 1996 Law Suit (All) 423

3. Jai Prakash Vs. St. of U.P. 1992 AWC 1744

4. Kamaljeet Singh Vs St. of U.P. 1986 U.P. Cri.
Ruling 50 (Alld)

(Delivered by Hon'ble Shamim Ahmed, J.)
1714 INDIAN LAW REPORTS ALLAHABAD SERIES

1. This application u/s 482 Cr.P.C.
has been filed by the applicant invoking the
inherent jurisdiction of this Court with the
prayer for quashing the order dated
10.06.2019 passed by Incharge Judicial
Magistrate, Court No.11 Deoria in Misc.
Case No.171 of 2019 (State Vs. Satya
Prakash Mall), arising out of Case Crime
No.318 of 2018, under Sections 419, 420,
467, 468, 471, 272 I.P.C. and under
Sections 60, 63, 72 of Excise Act, Police
Station Rudhrapur, District Deoria.

2. Further prayer has also been made
to quash the order dated 18.07.2019 passed
by Additional District and Sessions Judge,
Court No.7, Deoria in Criminal Revision
No.93 of 2019 (Vikas Kumar Vs. State of
U.P.) filed against the aforesaid order of
learned
Incharge
Judicial
Magistrate,
Deoria, rejecting the release application
which has been confirmed by the learned
revisional court.

3. Counter and rejoinder affidavits
have been exchanged between the parties.

4. Heard learned counsel for the
applicant, learned A.G.A. for the opposite
parties and perused the record.

5. Learned counsel for the applicant
has submitted that the applicant is the
registered
owner
of
vehicle/Mahindra
Scorpio
bearing
Chasis
No.
MA1TA2TDKJ2J39166
and
Engine
No.TDJ4J79127,
in
this
regard
sale
certificate and trade certificate were issued
by the agency. Thereafter, the applicant has
applied for registration of the said vehicle
before the Regional Transport Officer,
Siwan and when the vehicle of the
applicant was driven by driver, while going
to Deoria for treatment of his relative, then
police of Police Station Rudhrapur, District
Deoria caught the vehicle and detained at
Police Station Deoria without any reason.
When the applicant came to know about
this incident he went to police station to
ensure about the incident but the vehicle of
the applicant was not there and it was
detained by the police to some other place
keeping the vehicle in their custody.

6. Learned counsel for the applicant
further argued that the applicant has been
falsely implicated in the case to extract
illegal gratification from him and after the
denial the police, thereafter, lodged an
F.I.R. under Sections 419, 420, 467, 468,
471, 272 I.P.C. and under Sections 60, 63,
72 of Excise Act, Police Station Rudhrapur,
District Deoria and vehicle was ceased by
the police. Learned counsel for the
applicant further argued that the applicant
was released on bail on 28.01.2019 in
respect of the above incident.

7. Learned counsel for the applicant
submits that the applicant has moved
release application before the learned
Magistrate stating therein that he is an
agriculturist and was using his vehicle for
personal use and when the vehicle was
ceased by the police, driver of the applicant
was going to Deoria for treatment of his
relative and the vehicle was wrongly
detained by the police. Learned counsel for
the applicant further submits that it was
wrongly stated by the police that applicant
was transporting the liqueur in the said
vehicle.

8. Learned counsel for the applicant
further submits that the release application
of the applicant was rejected by the learned
Magistrate on 10.06.2019 only on the
ground that the investigation was going on
and the confiscation proceedings under
Section 72 of U.P. Excise Act were
3-5 All. Vikas Kumar Vs. State of U.P. & Anr.
1715
pending before the District Magistrate,
Deoria, therefore, the vehicle cannot be
released. Against the order of learned
Magistrate, the applicant has filed criminal
revision before the Additional District and
Sessions Judge, Deoria bearing Case No.93
of 2019 (Vikas Vs. State of U.P.) and the
learned
revisional
court
rejected
the
criminal
revision
vide
order
dated
18.07.2019 on the same ground, observing
that the confiscation proceedings are
pending before the District Magistrate,
Deoria, therefore, the vehicle in question
cannot be released.

9. Learned counsel for the applicant
has submitted that the vehicle is standing in
open yard in the police station since long
and with the passage of time ultimately it
will become junk and after sometime it is
not useful for any purpose. Reliance has
been placed on the law laid down by the
Hon'ble Apex Court in the case of
Sunderbhai Ambalal Desai and C.M.
Mudaliar Vs. State of Gujrat, AIR 2003
SC 638.

10. Learned counsel for the applicant
has further drawn the attention of the Court
regarding the provisions of Sections 451
and 457 of Cr.P.C., which is quoted as
under:-

"451. Order for custody and
disposal of property pending trial in certain
cases. When any property is produced before
any Criminal Court during any inquiry or
trial, the Court may make such order as it
thinks fit for the proper custody of such
property pending the conclusion of the inquiry
or trial, and, if the property is subject to
speedy and natural decay, or if it is otherwise
expedient so to do, the Court may, after
recording such evidence as it thinks necessary,
order it to be sold or otherwise disposed of.

Explanation.- For the purposes of
this section," property" includes-

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

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

457. Procedure by police upon
seizure of property.

(1) Whenever
the
seizure
of
property by any police officer is reported to a
Magistrate under the provisions of this Code,
and such property is not produced before a
Criminal Court during an inquiry or trial, the
Magistrate may make such order as he thinks
fit respecting the disposal of such property or
the delivery of such property to the person
entitled to the possession thereof, or if such
person cannot be ascertained, respecting the
custody and production of such property.

(2) If the person so entitled is
known, the Magistrate may order the property
to be delivered to him on such conditions (if
any) as the Magistrate thinks fit and if such
person is unknown, the Magistrate may detain
it and shall, in such case, issue a proclamation
specifying the articles of which such property
consists, and requiring any person who may
have a claim thereto, to appear before him
and establish his claim within six months from
the date of such proclamation."

11. Learned counsel for the applicant
has further submitted that the applicant is
ready to comply with all the conditions,
which the lower court will impose while
releasing
the
vehicle.
Undisputedly,
applicant is the rightful owner of the
1716 INDIAN LAW REPORTS ALLAHABAD SERIES
vehicle, therefore, the vehicle be released in his
favour and the impugned orders be quashed.

12. Learned A.G.A. has opposed the
application and detailed counter affidavit has
been filed. In the counter affidavit it has been
stated that the proceedings under Section 72 of
the U.P. Excise Act are pending before the
District Magistrate, Deoria who is the
competent authority to decide this issue
whether the vehicle be released or not and the
applicant may appear before the District
Magistrate and apprise him regarding his
grievances. Learned A.G.A. further submits
that the vehicle is involved in criminal case
under Sections 419, 420, 467, 468, 471, 272
I.P.C. and under Sections 60, 63, 72 of Excise
Act and therefore, the vehicle cannot be
released in favour of the applicant.

13. In the rejoinder affidavit filed by
the applicant, it has been stated by the
learned counsel for the applicant that
applicant is an innocent person and has
been falsely implicated in the case and the
vehicle has nothing do with the alleged
offence. It was further submitted that no
evidence was collected by the investigating
officer under Section 17 of the Excise Act
and the police personnel cannot lodge a
complaint under Excise Act, therefore, the
entire proceedings is against the process of
law and is liable to be quashed.

14. Learned counsel for the applicant
has contented that mere pendency of
confiscation proceedings before the District
Magistrate under Section 72 of the U.P.
Excise Act shall not operate as a bar
against the release of vehicle seized under
Section 60 of the U.P. Excise Act.

15. After having heard the learned
counsel for the parties, I have carefully
gone through the relevant legal provisions
and the judgments rendered by the Hon'ble
Apex Court in the case of Sunderbhai
Ambalal Desai (supra) and the judgment
passed by this court in various cases under
the U.P. Excise Act.

16. The Hon'ble Apex Court in the
case of Sunderbhai Ambalal Desai, AIR
2003 SC 638 (supra) in para 17 and 21 has
been pleased held as under:-

"17. In our view, whatever be the
situation, 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 application for
return of such vehicles.

21. However these powers are to
be exercised by the concerned Magistrate.
We hope and trust that the concerned
Magistrate would take immediate action for
seeing that powers under Section 451
Cr.P.C.
Are
properly
and
promptly
exercised and articles are not kept for a
long time at the police station, in any case,
for not more than fifteen days to one month.
This Object can also be achieved if there is
proper supervision by the Registry of the
concerned High Court in seeing that the
rules framed by the High Court with regard
to such articles are implemented properly."

17. In Nand Vs. State of U.P., 1996 Law
Suit (All) 423 this Court has observed that
pendency of the confiscation proceedings under
Section 72 of the U. P. Excise Act is not a bar
for release of the vehicle which is required for
the trial under Section 60 of the U. P. Excise
Act. It has been clearly observed by this Court
in para 7 that:-
3-5 All. Vikas Kumar Vs. State of U.P. & Anr.
1717

" I think it is not proper to allow
the truck to be damaged by remaining
stationed at police station. Admittedly, the
ownership of the truck is not disputed. The
State of Uttar Pradesh does not claim its
ownership. Therefore, I think it will be
proper and in the larger interest of public
as well as the revisionist that the revisionist
gives a Bank guarantee of Rs. 2 lakhs
before the C.J.M., Kanpur Dehat and files
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 changes nor any
variation in the truck."

18. This Court further has held in
the case of Jai Prakash Vs. State of
U.P., 1992 AWC 1744 that mere
pendency of confiscation proceedings
before the Collector is no bar to release
the vehicle.

19. In Kamaljeet Singh Vs. State of
U.P., 1986 U.P. Cri. Ruling 50 (Alld), the
same view was taken by this court that
pendency of confiscation proceedings shall
not operate as bar against the release of
vehicle seized u/s 60 of Excise Act.

20. In the opinion of this Court, it is
not disputed that the power under Section
451 of Cr.P.C. is not properly and widely
used by the court below while passing the
orders. The power conferred under Section
451 of Cr.P.C. be exercised by the court
below with judicious mind and without any
unnecessarily delay. So that the litigant
may not suffer, merely keeping the article
in the custody of the police in the open yard
will not fulfill any purpose and ultimately it
result the damage of the said property. The
owner of the property be allowed to enjoy
the fruits of the said property for the
remaining period for which the property is
being made.

21. Further in the opinion of this
Court, the procedure as contemplated under
Section 457 of Cr.P.C. be also followed
promptly, so that the concerned Magistrate
may take prompt decision for disposal of
such properties and be released in favour of
the entitled person of the said property,
keeping the said property in the custody
will not solve any purpose and that gives a
mental and financial torture to the owner of
the said property which is also against the
law and against the principles of natural
justice.

22. As per the legal propositions
mentioned above and keeping in view this
fact that undisputedly the applicant is the
registered owner of the seized vehicle and
the ownership of the vehicle is not
indispute neither the State or any other
person has claimed their ownership over
the vehicle, therefore, no useful purpose
will be served in keeping the vehicle
stationed at the police station in the open
yard for a long period allowing it to be
damaged with the passage of time.

23. In view of the above facts and
circumstances of the case, the impugned
orders are not sustainable in the eyes of law
and require interference by this court.

24. Accordingly, the application u/s
482 Cr.P.C. is allowed and the impugned
order dated 10.06.2019 & order dated
18.07.2019 are set aside and the case is
remitted back to the concerned Magistrate
to decide the release application of the
applicant afresh within a period of two
months from the date of certified copy of
this order is filed before the court below
1718 INDIAN LAW REPORTS ALLAHABAD SERIES
in the light of the aforesaid observations
and the law as discussed above.
----------

(2020)03-05ILR A1718
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.

Application U/S 482 No. 37200 of 2010

Uma Shankar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Bharat Bhushan Paul, Sri S.P. Sharma

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

Criminal Law-Negotiable Instruments Act
(26 of 1881)-Section.142 - Negotiable
Instruments
(Amendment
and
Miscellaneous Provision) Act, (55) 2002 -
amendment
of
Section
142
w.e.f.
-
6.2.2003-Dishonour of cheque - Complaint
- Limitation - cognizance of a complaint
may be taken by the court after the
prescribed period, if the complainant
satisfies the court that he had sufficient
cause for not making the complaint within
such period - no need for filing an
application separately under Section 5 of
the Limitation Act

Complainant fell seriously ill & was bed ridden
so she could not file complaint within time -
Complainant filed medical certificate along with
complaint - Complaint filed onon 1.5.2006
i.e.after amendment of S.142 came into force -
Hence complaint not barred by limitation.
(Para 18 19)

Application dismissed (E-5)

Cases relied on:

Subodh S. Salaskar Vs. Jayprakash M. Shah U.P.
Criminal Rulings 2008 (3) 614

(Delivered by Hon'ble Naheed Ara
Moonis, J.)

1. Heard learned counsel for the
applicants, the learned AGA for the State
and perused the record.

2. The instant application has been
filed invoking the inherent powers of this
court under Section 482 Cr.P.C. to quash
the proceeding of complaint Case No. 1288
of 2010 whereby the applicant has been
summoned to face trial under Section 138
of Negotiable Instrument Act, police
station M.M. Gate, district Agra and the
order dated 18.10.2010 passed by the
Additional Chief Judicial Magistrate-II,
Agra in the aforesaid case.

3. The submission of the learned
counsel for the applicant is that the
applicant is maliciously being prosecuted
pursuant to the complaint lodged by the
opposite party no.2 under Section 138 of
Negotiable Instrument Act on 1.5.2006. It
is alleged in the complaint that the opposite
party no.2 had sold her two plots to the
wife of the applicant for consideration of
Rs. 5 lacs, the payment whereof was given
by two cheques. One cheque was honour
by the bank while another cheque no.
546759 dated 25.6.2005 was dishonoured
by the bank with the memorandum dated
21.12.2005 mentioning "not arranged for".
It was mentioned in the complaint that the
opposite party no.2 had sent a registered
notice on 4.1.2006 but the same was never
received by the applicant and has been
alleged that despite service of notice no
reply was given by the applicant nor made
any payment. On the basis of the aforesaid
complaint dated 1.5.2006 the statements of