Allahabad High Court
Vikki vs State Of U.P. And Another on 3 August, 2021
Author: Y.K.Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 84 Case :- APPLICATION U/S 482 No. - 17735 of 2020 Applicant :- Vikki Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar Tiwari Counsel for Opposite Party :- G.A. 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 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 sub-section (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 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
(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.
(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 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 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 sub-section (3), then the Court seized of the 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 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 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.
Order Date :- 3.8.2021 Pratima (Dr.Y.K.Srivastava,J.)