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

- **Citation:** (2021) 8 ILRA 689
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-03
- **Case number:** Application U/S 482. No. 17735 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikki-v-state-of-u-p-anr-47292
- **Pages:** 11

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Section 473 & U.P.
Excise Act,1910-Section 60/63-seeking
release of vehicle-magistrate rejected
the
application
being
not
maintainable-Section 72 of the Act
which is admittedly a local act does
not contain any provision for release of
anything
seized
or
detained
in
connection with a offence committed
under the Act in respect of which
confiscation proceedings are pendingSection 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-under the
scheme of Excise Act, any vehicle used
for carrying the intoxicant, upon being
seized, is required to be produced
before the Collector, who in turn has
been conferred with the power of its
confiscation.(Para 1 to 22)

The application is dismissed. (E-5)

List of Cases cited:

## Text

8 All. Vikki Vs. State of U.P. & Anr.
689
after passing of the order under Section 17,
consequent to an inquiry under Section 16,
the party concerned would have the
opportunity of availing statutory remedy of
an appeal under Section 18.

32. The provisions contained under
the Act, 1986, relating to attachment
proceedings, thus, provide a complete
scheme and ample opportunity to the
claimant at the stage of inquiry before the
Court and also the remedy of filing the
appeal.

33. In the case at hand, the
proceedings against which the present
application has been filed, are at a stage,
which is antecedent to the inquiry to be
held by the Special Court and in view
thereof, there appears to be no plausible
cause for the applicant to have approached
the Court at this stage.

34. Counsel for the applicant at this
stage, submits that the representation dated
20.7.2020, as contemplated under Section
15, filed by the applicant, has been
disposed of recently. If that be so, the
necessary consequences under the Act of
1986, relating to inquiry by the Special
Court, would follow and any order to be
passed after inquiry, would be subject to an
appeal under Section 18.

35. For all the aforestated reasons,
this Court is not inclined to exercise its
inherent jurisdiction under Section 482
Cr.P.C.

36.

The
application
stands,
accordingly, dismissed.
----------
(2021)08ILR A689
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2021
BEFORE

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

Application U/S 482. No. 17735 of 2020

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

Counsel for the Applicant:
Sri Rajesh Kumar Tiwari

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

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Section 473 & U.P.
Excise Act,1910-Section 60/63-seeking
release of vehicle-magistrate rejected
the
application
being
not
maintainable-Section 72 of the Act
which is admittedly a local act does
not contain any provision for release of
anything
seized
or
detained
in
connection with a offence committed
under the Act in respect of which
confiscation proceedings are pendingSection 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-under the
scheme of Excise Act, any vehicle used
for carrying the intoxicant, upon being
seized, is required to be produced
before the Collector, who in turn has
been conferred with the power of its
confiscation.(Para 1 to 22)

The application is dismissed. (E-5)

List of Cases cited:

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

2. Nand Vs St. of U.P.(1997) 1 AWC 41
690 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Rajiv Kumar Singh Vs St. of U.P. & ors.
(2017) 5 ADJ 351

4. Ved Prakash Vs St. of U.P.(1982) 19 ACC 183

5. St. (NCT of Delhi) Vs Narendra,(2014) 13 SCC
100

6. Maru Ram Vs UOI (1981) 1 SCC 107

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

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

1. Heard Sri Rajesh Kumar Tiwari,
learned counsel for the applicant and Sri
Pankaj
Saxena,
learned
Additional
Government Advocate-I appearing for the
State-opposite party.

2. The present application under
Section 482 Cr.P.C. has been filed seeking
to quash the order dated 08.09.2020 passed
by
Additional
District
&
Sessions
Judge/F.T.C.-1,
Deoria
in
Criminal
Revision No. 20 of 2020 (Vikki Vs. State
of U.P.) and the order dated 17.1.2020
passed by the Chief Judicial Magistrate,
Court No. 17, Deoria in Misc. Application
No. 36 of 2020 arising out of Case Crime
No. 924 of 2019 under Section 60/63 of the
U.P. Excise Act, 19101 and 473 IPC,
Police Station Kotwali, District Deoria.

3. The facts as reflected from the
records of the case indicate that an
application was filed by the applicant
herein before the court of Chief Judicial
Magistrate seeking release of vehicle
bearing Registration No. H.R.12-AJ-7586,
Engine No. D13 A5636506 and Chassis
No. MA3NYFB1SKE553161 contending
that no recovery of any intoxicant had been
made from the vehicle and that the
applicant had possessed all the valid papers
relating to the vehicle and accordingly a
prayer was made for release of the vehicle.
The Magistrate rejected the application as
being not maintainable by referring to a
Division Bench judgment of this Court in
Virendra Gupta Vs. State of U.P.2, for the
proposition that the provisions contained
under sub-sections (1) to (4) of Section 72
of the U.P. Excise Act, 1910, clearly
denude the Magistrate of his power to pass
any order under Section 457 of the Code of
Criminal
Procedure3
for
release
of
anything seized in connection with an
offence purporting to have been committed
under the Excise Act.

4. Aggrieved against the order, the
applicant
preferred
a
revision
being
Criminal Revision No. 20 of 2020. The
revision was argued on the jurisdictional
point as to whether the Magistrate had the
power and jurisdiction to release the
vehicle when the confiscation proceedings
under Section 72 of the Act were pending
before the Collector, and after referring to
the facts and the material on record and
also the law laid down in the case of
Virendra Gupta (supra), the revision was
rejected

5. Learned counsel for the applicant
has sought to assail the orders of the courts
below by contending that mere pendency of
confiscation
proceedings
before
the
Collector under Section 72 of the Excise
Act shall not operate as a bar against
release of a vehicle seized under Section 60
of the Excise Act. In support of his
contention, reliance was placed upon the
judgments in the case of Nand Vs. State of
U.P.4, and Rajiv Kumar Singh Vs. State
of U.P. and others5.

6. Learned A.G.A.-I submits that in
terms of the scheme of the Act, the release
8 All. Vikki Vs. State of U.P. & Anr.
691
of any property which is subject matter of
confiscation proceedings under Section 72
of the Excise Act before the Collector
cannot be sought in terms of the powers
exerciseable under the Code. To support his
submission, he has placed reliance upon the
judgment in the case of Ved Prakash Vs.
State of U.P.6, and also the Division
Bench judgment in the case of Virendra
Gupta (supra).

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

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

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

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

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

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

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

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

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

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

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

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

(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."

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

"60.
Penalty
for
unlawful
import, export, transport, manufacture,
possession, sale, etc.- (1) Whoever, in
contravention of this Act or of any rule or
order made thereunder, or of any licence,
permit or pass obtained thereunder-

(a) exports any intoxicant; or

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

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

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

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

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

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

(h) sells any intoxicant, save in
the case provided for by Section 61; or
8 All. Vikki Vs. State of U.P. & Anr.
693

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

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

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

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

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

(a) every intoxicant in respect of
which such offence has been committed;

(b) every still, utensil, implement
or apparatus and all materials by means of
which such offence has been committed;

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

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

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

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

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

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

(4)Where such things or animals
are sold as aforesaid, and-

(a) no order of confiscation is
ultimately passed or maintained by the
Collector under sub-section (2) or on
review under 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 is seized, the
order of the court so requires,

the sale proceeds after deducting
the expenses of the sale shall be paid to the
person found entitled thereto.

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

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

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

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

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

(6) Where on an application in
that behalf being made to the Collector
within one month from any order of
confiscation made under sub-section (2), or
as the case may be, after issuing notice on
his own motion within one month from the
order under the sub-section refusing
confiscation to the owner of the thing or
animal seized or to the person from whose
possession it was seized, to show cause
why the order should not be reviewed, and
after giving him a reasonable opportunity
of being heard, the Collector is satisfied
that the order suffers from a mistake
apparent on the face of the record including
any mistake of law, he may pass such order
on review as he thinks fit.

(7) Any person aggrieved by an
order of the confiscation under subsection
(2) or sub-section (6) may, within one
month from the date of the communication
to him of such order, appeal to such judicial
authority as the State Government may
appoint in this behalf and the judicial
authority shall, after giving an opportunity
to the appellant to be heard, pass such order
8 All. Vikki Vs. State of U.P. & Anr.
695
as it may think fit, confirming, modifying
or annulling the order appealed against.

(8) Where a prosecution is
instituted for the offence in relation to
which such confiscation was ordered the
thing or animal "shall subject to the
provisions of sub- section (4) be disposed
of in accordance with the order of the
Court".

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

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

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

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

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

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

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

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

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

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

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

7. There can be no controversy
about the fact that the U.P. Excise Act is a
"local law" within the meaning of that
expression as used in Section 5 of the
Criminal Procedure Code. Section 72 of
that Act prescribes a special form of
procedure for dealing with the property
seized under the Excise Act and confers
power or jurisdiction on the Magistrate to
deal with the same. In view of the clear
provisions contained in Section 5 of the
Criminal Procedure Code, the provision
contained therein regarding the disposal of
property, can be used only to the extent
they are not inconsistent with Section 72 of
the U.P. Excise Act. Sub-section (4)(c) of
Section 72 says that if anything is sold
under Sub-section (3) the sale proceeds
shall be disposed of in accordance with
such order as the Magistrate trying the case
may choose to pass at the end. Sub-section
(8) provides that where the prosecution is
instituted for the offence in relation to
which such confiscation was ordered, the
thing or animal shall, subject to the
provisions of Sub-section (4), be disposed
of in accordance with the order of the
Court. It would mean that if the article in
question is sold by the Collector under subsection (3), then the Court seized of the
8 All. Vikki Vs. State of U.P. & Anr.
697
criminal case shall have jurisdiction to pass
orders with respect to the sale proceeds
only. If, however, the Collector has merely
ordered confiscation under sub-section (1)
and the sale of the property has not taken
place, the Magistrate will also have
jurisdiction, at the end of the trial, to pass
orders regarding the disposal of the
property
and,
despite
the
order
of
confiscation by the Collector, the property
shall be handed over to such party as may
be directed by the Court.

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

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

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

19. "...Section 72 of the 'Act'
which is admittedly a local act does not
contain any provision for release of
anything seized or detained in connection
with an offence committed under the Act in
respect of which confiscation proceedings
are pending. In fact the sub-section (1) to
sub-section (4) of Section 72 of the 'Act'
prescribe the manner in which anything
seized in connection with an offence
committed under the 'Act' and in respect of
which
confiscation
proceedings
under
Section 72 of the 'Act' are pending, shall be
dealt with. Section 72 of the 'Act' does not
contain any provision indicating that such
seized property may be released by the
Magistrate in the exercise of his power
under Section 457 Cr.P.C. The provisions
contained in sub-sections (1) to (4) of
Section 72 of the 'Act', clearly denudes the
Magistrate of his power to pass any order
under Section 457 Cr.P.C. for release of
anything seized in connection with an
offence purporting to have been committed
under the 'Act'.

20. In view of the foregoing
discussion, we find that the case of Ved
Prakash (supra) lays down the correct law
on the subject-matter of this reference and
neither Nand v. State of U.P., 1997 (1)
AWC 41 or Rajiv Kumar Singh v. State of
U.P. and others, 2017 (5) ADJ 351 nor
Sunderbhai Ambalal Desai v. State of
Gujarat, 2002 (10) SCC 283, can be said to
be authorities on the power of the
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate to release anything seized or
detained in connection with an offence
committed under the 'Act' in respect of
which
confiscation
proceedings
under
Section 72 of the U.P. Excise Act are
pending before the Collector."

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

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

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

17. The question with regard to the
applicability of the provisions contained
under Sections 451, 452 and 457 of the
Code in a case where the property had been
seized and was subject to confiscation
proceedings under the special Act namely
Delhi Excise Act was considered in State
(NCT of Delhi) Vs. Narendra7 and it was
held as follows :-

"12. It is relevant here to state
that in the present case, the High Court,
while releasing the vehicle on security has
exercised its power under Section 451 of
the Code. True it is that where any property
is produced by an officer before a criminal
court during an inquiry or trial under this
section, the court may make any direction
as it thinks fit for the proper custody of
such property pending the conclusion of the
inquiry or trial, as the case may be. At the
conclusion of the inquiry or trial, the court
may also, under Section 452 of the Code,
make an order for the disposal of the
property produced before it and make such
other direction as it may think necessary.
Further, where the property is not produced
before a criminal court in an inquiry or
trial, the Magistrate is empowered under
Section 457 of the Code to make such order
as it thinks fit.

13. In our opinion, the general
provision of Section 451 of the Code with
regard to the custody and disposal of the
property or for that matter by destruction,
confiscation or delivery to any person
entitled to possession thereof under Section
452 of the Code or that of Section 457
authorising a Magistrate to make an order
for disposal of property, if seized by an
officer and not produced before a criminal
court during an inquiry or trial, however,
has to yield where a statute makes a special
provision with regard to its confiscation
and disposal."

18. The applicability of the Code in
an area covered by a special or local law, in
the context of the saving clause under
Section 5 of the Code was considered in the
Constitution Bench judgment in the case of
8 All. Manu Sharma & Ors. Vs. State of U.P. & Anr.
699
Maru Ram Vs. Union of India8 and also
in State (Union of India) Vs. Ram
Sharan9, and it was held that the section
consists of three components: (i) the Code
covers matters covered by it; (ii) if a
special or local law exists covering the
same area, the said law is saved and will
prevail; (iii) if there is a special provision
to the contrary, that will override the
special or local law.

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

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

21. The view taken by the courts
below in declining to entertain the
application of the applicant for release of
the vehicle during the pendency of the
confiscation proceedings under Section 72
of the Act before the Collector, thus does
not warrant interference.

22. The application under Section 482
Cr.P.C. accordingly stands dismissed.
----------
(2021)08ILR A699
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 30080 of 2019

Manu Sharma & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Karunesh Narayan Tripathi

Counsel for the Opposite Parties:
A.G.A., Sri Deepesh Kumar Ojha, Sri
Saurabh Yadav, Sri Ved Prakash Pandey

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1860-Sections 498-A, 323,
504,
506, 342
&
Dowry Prohibition
Act,1961-Section 3⁄4-quashing of entire
proceedings-mediation failed-parties have
not arrived at any positive agreement-at
this stage, disputed question of fact
cannot be considered-therefore, in view of
the law laid down by the Apex Court
prayer
for
quashing
the
entire
proceedings, is refused. (Para 2 to 11)

The application is disposed of. (E-5)

List of Cases cited:

1. R.P. Kapur Vs St. of Punj.(1960) AIR SC 866

2. St. of Haryana Vs Bhajan Lal (1992) SCC
(Cri) 426

3. St. of Bih. Vs P.P Sharma (1992) SCC (Cri)
192