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

- **Citation:** (2022) 4 ILRA 330
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-03
- **Case number:** Application U/S 482 No. 28477 of 2021
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yashpal-v-state-of-u-p-anr-48323
- **Pages:** 3

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Excise
Act, 1910- Sections 60/72-release of
vehicle-vehicle
in
question
has
been
confiscated by the District Magistrate and
the applicant has not challenged the order
of confiscation before the Appellate CourtAs per Section 72(7) of U.P. Excise Act,
Civil appeal would lie before the District
Judge against the order of confiscation
passed by the District Magistrate-thus, the
instant application is not maintainable on
account of having alternative statutory
remedy available to the applicant.(Para 1
to 12)
The application is dismissed. (E-6)

## Text

330 INDIAN LAW REPORTS ALLAHABAD SERIES

"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 exercise of
powers under Sections 451, 452 or 457 of
the Code of Criminal Procedure?"

7. The Division Bench interpreting
the various provisions of Cr.P.C. and U.P.
Excise Act and the law laid down by the
Apex Court in (Sunderbhai Ambalal Desai
vs. State of Gujarat), 2002 (10) SCC 283
and (State GNCJ of Delhi) vs. Narendra
(2014) 13 SCC 100 answered the aforesaid
question in para no.20 of the judgment
which is reproduced as below:

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

8. So the law has been settled by the
Division Bench of this Court which has
held that during confiscation proceeding,
the Magistrate has no power under sections
451 or 457 Cr.P.C. to release the vehicle.

9. Learned counsel for the revisionist
has placed reliance on the case of Chandra
Pal vs. State of U.P. in Application U/s 482
Cr.P.C. No.1325 of 2021 decided on
21.02.2021 and Murad Ali vs. State of U.P.
and two ors in Application U/s 482 Cr.P.C.
No.21547 of 2021 decided on 23.11.2021.
In the aforesaid case, the learned Single
Judge has held that Magistrate has
jurisdiction to release the vehicle during
confiscation proceedings but in view of the
law propounded by the Division Bench of
Allahabad High Court this view cannot be
adopted.

10. From the aforesaid discussion, it
is
clear
that
during
confiscation
proceedings,
the
Magistrate
has
no
jurisdiction to release the vehicle seized
under section 72 of U.P. Excise Act. The
findings recorded by the learned Magistrate
and upheld by the revisional court are
according to law. There is no illegality or
infirmity in the impugned order and the
application U/s 482 Cr.P.C. is liable to be
dismissed.

11. According the application U/s 482
Cr.P.C. is hereby dismissed.
----------
(2022)04ILR A330
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482 No. 28477 of 2021

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

Counsel for the Applicant:
Sri Raghvendra

Counsel for the Opposite Parties:
A.G.A.
4 All. Yashpal Vs. State of U.P. & Anr.
331
A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Excise
Act, 1910- Sections 60/72-release of
vehicle-vehicle
in
question
has
been
confiscated by the District Magistrate and
the applicant has not challenged the order
of confiscation before the Appellate CourtAs per Section 72(7) of U.P. Excise Act,
Civil appeal would lie before the District
Judge against the order of confiscation
passed by the District Magistrate-thus, the
instant application is not maintainable on
account of having alternative statutory
remedy available to the applicant.(Para 1
to 12)
The application is dismissed. (E-6)

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard learned counsel for the
applicant, learned AGA for opposite party
no. 1 and perused the record.

2. The instant application under
Section 482 Cr.P.C. has been preferred by
the applicant to quash the order dated
08.10.2021 passed by Judicial Magistrate,
Court No. 2, Mainpuri whereby an
application for release of Vehicle No. UP84-AH-0198 of the applicant has been
rejected mainly on the ground that Vehicle
No. UP-84-AH-0198 of the applicant
which was seized in Case Crime No. 144 of
2021, under Section 60 Excise Act, Police
Station Ghiror, District Mainpuri has been
confiscated by the order of District
Magistrate in favour of the State, therefore,
application under Section 457 Cr.P.C. for
release of the said vehicle by the applicant
is not maintainable.

3. Learned counsel for the applicant
submits that aforesaid vehicle of the
applicant is lying in police station and in
case, the same is not released in favour of
the applicant, the condition of the vehicle
will be deteriorated, therefore, no useful
purpose would be served in keeping the
said vehicle in the police station.

4. Learned AGA submits that in view
of the alternative remedy available under
the U.P. Excise Act, 1910 for filing civil
appeal against the order of confiscation of
vehicle, the instant application is not
maintainable and there is no illegality in the
impugned order dated 08.10.2021.

5. Having examined the matter in its
entirety, it is relevant to mention that
clause (e) of sub-Section (1) of Section
72 of U.P. Excise Act, 1910 provides that
whenever an offence is punishable under
this Act, every animal, cart, vessel or
other conveyance used in carrying such
receptacle or package shall be liable to
confiscation. The power of confiscation
of vehicle has been given to the Collector
of the District and sub-section 7 of
Section 72 provides appeal against the
order of confiscation under sub-section 2
or sub-section 6 of Section 72 to the
Judicial Authority as the Government
may appoint.

6. Sub-section 7 of Section 72 of U.P.
Excise Act, 1910 is being reproduced as
under:-

"(7) Any person aggrieved by an
order of confiscation under sub-section (2)
or sub-section (6) may, within one month
from the date of the communication to him
of such order, appeal to judicial authority
as the State Government may appoint in
this behalf and the judicial authority shall,
after giving an opportunity to the appellant
to be heard, pass such order as it may think
fit, confirming, modifying or annulling the
order appealed against."
332 INDIAN LAW REPORTS ALLAHABAD SERIES

7. It is noteworthy that for the purpose
of section 72(7) of U.P. Excise Act vide
Notification No.4986 (E)/XIII-517 dated
June 4th, 1978 of आबकाऱी अनुिाग ,
appellate judicial authority appointed by
the State Government is "District Judge"
and an appeal should be regarded as Civil
Appeal (not Criminal) and is required to be
decided by the District Judge himself.

8. In view of the above, there is no
dispute that as per provisions of Section
72(7) of U.P. Excise Act, 1910, against the
order of confiscation passed by the District
Magistrate, Civil Appeal would lie before
the District Judge of the respective District.

9. Having heard learned counsel for
the parties, I find that learned counsel for
the applicant does not dispute the aforesaid
fact that vehicle in question has already
been confiscated by the District Magistrate
and the applicant has not challenged the
order of confiscation before the Appellate
Court.

10.

Accordingly,
the
instant
application is not liable to be entertained on
account of having alternative statutory
remedy available to the applicant as
mentioned above.

11. The application lacks merit and is
accordingly dismissed.

12. However, it is open for the
applicant to file civil appeal as per the
provisions of U.P. Excise Act, 1910 before
the competent Civil Courts, the District
Judge,
Mainpuri
subject
to
law
of
limitation.
----------
(2022)04ILR A332
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 37040 of 2016

Arvind Upadhyay ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rahul Mishra

Counsel for the Opposite Parties:
A.G.A., Sri Anil Kumar Chaudhary, Sri Ved
Prakash Shukla

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Protection
of Women from Domestic Violence Act,
2005-Section 31 - quashing of entire
proceeding-maintenance-
Harassment
faced by wives even after several years
from the date of orders-appeal- no relief
regarding right to residence was givenexecution- applicant does not comply the
order for five years- Instead, an FIR was
lodged about the applicant's missing -
applicant escaping from his wife and
daughter deliberately-the matter could
not be resolved even giving opportunity
to the parties before the court -Several
cases, are pending and even notices have
not been served upon the parties due to
which women are suffering-to safeguard
the
right
of
maintenance
of
wives,
direction given to thee Director General of
Police to ensure the summons are served
upon the person concerned.(Para 1 to 21)

The application is dismissed. (E-6)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. On 4th February, 2021, this Court
passed following order: