Allahabad High Court
Chandra Pal vs State Of U.P. And Another on 12 February, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 89 A.F.R. Case :- APPLICATION U/S 482 No. - 1325 of 2021 Applicant :- Chandra Pal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Sunil Kumar Yadav, learned counsel for applicant and learned A.G.A. for State.
2. This application under Section 482 Cr.P.C. has been filed challenging order dated 18.09.2020 passed by Additional Chief Judicial Magistrate/Additional Civil Judge (Sr. Div.) Court No.3, Aligarh in Case Crime No. 338 of 2019 under Sections 62, 63, 72 U.P. Excise Act, Police Station- Akbarabad, District-Aligarh as well as order dated 31.10.2020 passed by Additional Sessions Judge/POCSO Act, Court No.02, Aligarh in Criminal Revision No. 136 of 2020 (Chandra Pal Vs. State of U.P.) under Sections-396, 397 Cr.P.C., arising out of order dated 18.9.2020, whereby above-mentioned criminal revision has been dismissed.
3. Record shows that in respect of an incident which occurred on 29.12.2019, an F.I.R. dated 29.12.2019 was lodged and was registered as Case Crime No.0338 of 2019 under Section 62, 63, 72 of U.P. Excise Act, Police Station- Akbarabad, District-Aligarh. In the aforesaid F.I.R., two unknown persons who were sitting in vehicle No. DL. 1 VB 8839 but fled away from spot were nominated as accused.
4. As per prosecution story as unfolded in above-mentioned F.I.R., it is alleged that police of concerned police station in routine check for ensuing peace laid check point near Bamba Pulia crossing to check vehicles. A Vehicle bearing registration number DL 1 VB 8839 of TATA Sumo Gold Make was detained for search and huge quantity of Indian made Foreign Liquor was recovered from aforesaid vehicle. However, driver and passenger of aforesaid vehicle managed to escape but the vehicle was seized.
5. Subsequently, applicant- Chandra Pal, registered owner of seized vehicle No. DL. 1 VB 8839 filed a release application seeking release of same. The release application was rejected by concerned Magistrate vide order date 18.09.2020. Magistrate concluded that Apex Court in State (NCT of Delhi) Vs. Narender 2014 (13) SCC 100 has observed that where confiscation proceedings (in this case under Delhi Excise Act) are pending then courts have no jurisdiction to direct release of seized vehicle.
6. Order dated 18.09.2020 passed by Magistrate was challenged by applicant by filing a criminal revision before Sessions Judge, Aligarh. Same was registered as Criminal Revision No.136 of 2020, (Chandrapal Vs. State of U.P.). This revision also came to be dismissed by Additional Sessions Judge/ POCSO Act Court No.2, Aligarh vide order dated 31.10.2020.
7. Additional Sessions Judge concluded that since proceedings under Section 72 of U.P. Excise Act, 1910 (hereinafter referred to as 'Act 1910') are pending, therefore no directions can be issued for release of disputed vehicle. Revisional court referred to Krishna Mohan Sharma Vs. State of U.P. 1999 (2) JIC 270 Alld, but observed that judgement therein has been rendered by a learned Single Judge. Reference was also made to the decision of Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujarat 2002 (10) SCC 283. However, revisional court observed that in aforesaid case Court has considered Sections 451, 452, 457 Cr.P.C and not the provisions of Act 1910. Revisional Court further referred to the Division Bench Judgement of this Court in Virendra Gupta Vs. State of U.P. 2019(6) ADJ 432 wherein law laid down in Ved Prakash Vs. State of U.P. 1982 A.W.C. 167 has been affirmed. It was held by division bench that during pendency of confiscation proceedings under section 72 of Act, 1910, Magistrate has no jurisdiction under Section 457 Cr. P. C. to direct release of vehicle seized under the provsisions of Act, 1910 However, irrespective of above, Revisional Court instead of deciding jurisdiction of criminal courts regarding release of seized vehicle under section 457 Cr.P.C. even during pendency of confiscation proceedings under section 72 of Act 1910 rejected the revision filed by applicant by placing reliance upon State (NCT OF DELHI) Vs. Narender (supra).
8. Thus, feeling aggrieved by orders dated 31.10.2020 and 18.09.2020, referred to above, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
9. Learned counsel for applicant submitted that applicant is registered owner of disputed vehicle bearing registration No. DL 1 VB 8839 of Tata Sumo Gold Make. Aforesaid vehicle was seized on 29.12.2019 and is lying unattended at Police Station- Akbarbad, District- Aligarh since then. No useful purpose shall be served by detaining the disputed vehicle under custody. Furthermore, as seized vehicle is lying unattended in open at concerned police station, same shall get rusted and its value shall also diminish. As such interest of justice demands that seized vehicle of applicant be released forthwith.
10. On aforesaid premise, it is submitted that in view of law laid down by Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujarat, (supra), concerned Magistrate committed an illegality in rejecting release application filed by applicant. Additional Sessions Judge, Aligarh ought to have allowed the revision and directed release of seized vehicle of revisionist in view of various authoritative pronouncements of this Court, after taking recourse to any of the safeguards mentioned in Sunderbhai Ambalal Desai (Supra). Reliance is placed upon paragraphs 6, 7 and 14 of above noted judgement which are reproduced herein below:-
"6. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under:-
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.
Valuable Articles and Currency Notes
14.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 applications for return of such vehicles."
11. He has then referred to the judgement of a learned Single Judge of this Court in Criminal Revision No. 3831 of 2017 (Harish Chandra Singh Vs. State of U.P.), wherein, while dealing with almost a similar issue regarding release of minor mineral Court allowed the revision by placing reliance upon Sunderbhai Ambalal Desai (supra). Following was ultimately observed by the Court:-
"Having considered the rival submissions raised by the parties as well as the law on the subject as crystallized in the above quoted judgements, this Court is of the considered opinion that the Magistrate has erred in refusing to entertain the release application on the grounds as mentioned in the order dated 09.10.2017. From the discussions made herein above, it is clear that the offence alleged against the revisionist is compoundable and such power is with the District Magistrate. In spite of the time having been granted to the learned A.G.A., nothing has been brought on record to show the action taken by the D.M. Kaushambi in this regard. However, it may be noted that the Court does not find any legal impediment in compounding the offence complained against the revisionist. Secondly, the power to release the seized mineral, tool, vehicle etc., is with the Court as settled by the Division Bench judgement of this Court in the case of Rajendra Singh (supra). Lastly, the Apex Court in the case of Sunderbhai Ambalal Desai (supra) had already issued a general mandamus that the seized items should not be retained unnecessarily. In the light of the settled legal position, the Court finds that the C.J.M., Kaushambi has dealt with the matter in a very casual manner. He has not at all adverted to the proposition laid down by the Apex Court in the case of Sunderbhjai Ambalal Desai (supra) nor has he recorded a finding as to why it is not congenial in the facts and circumstances of the case to deny the release of the seized mooram."
12. On the aforesaid premise, it is urged that seized vehicle of applicant is liable to be released.
13. Learned counsel for applicant further contended that mere pendency of confiscation proceedings before District Magistrate, under section 72 of Act, 1910, shall not operate as a bar regarding jurisdiction of Magistrate under section 457 Cr.P.C. in respect of release of such vehicle which has been seized under section 60 of Act, 1910. In continuation of aforesaid submission, it is urged that the issue as to whether seized vehicle cannot be released by Magistrate on account of pendency of confiscation proceedings under Section 72 of Act, 1910 is no longer res-integra.
14. To lend legal support to aforesaid submission, he has referred to following judgements and contends that view expressed in Ved Prakash (Supra) has not been followed in subsequent judgements. He, therefore, contends that courts below have committed a jurisdictional error in rejecting the release application filed by applicant by recording an erroenous finding that on account of judgement of Apex Court in State (NCT of Delhi) (Supra) the seized vehicle cannot be released.
S.NO JUDGEMENTS NAME 1 Ved Prakash V State of U.P 1982 (19) ACC 183/1982 AWC 167
2. Mohd. Hanif Vs. State of U.P. 1984 ACrR 23 3 Kamaljeet Singh V State of U.P 1986 U.P Cri Rullings 50 (Alld) 4 Jagat Singh Vs. State of U.P. 1991 (28) ACC 561 5 Jai Prakash Sharma V State of Uttar Pradesh (1993) 30 ACC 6/1992 (3) AWC 1744 6 Sri Nand V State of U.P (1997) 34 ACC 32 7 Virender Pal Singh V State of Uttar Pradesh (2008) 60 ACC 481 8 Rama Shankar Yadav V State of U.P (2010) 68 ACC 16 9 Ramesh Chandra Junwal V State of U.P 2015 (8) ADJ 138 10 Rajiv Kumar Singh Vs. State of U.P. and others 2017 (99) ACC 260 11 Harish Chandra Singh V State of U.P Cr Rev No. 3831/2017 (AHC) decided on 10..08.2018 12 Mustafa and others Vs. State of U.P. and others 2018 (3) ALJ 351 13 Vikas Kumar V State of U.P 2020 (7) ADJ 656 14 Karmvir v State of U.P Matter Under Article 227 No. 3401/2020 (A.H.C) decided 22.01.2021.
15. Per contra, learned A.G.A. has opposed this application. He contends that transport of illicit liquor is not only a crime against State but also against society. According to learned A.G.A. Section 72 of Act, 1910 is a penal provision and therefore, requires to be strictly construed. On a plain reading of Section 72 of Act, 1910 it cannot be inferred even remotely that aforesaid provision provides for a mechanisam for release of a seized vehicle by Magistrate in exercise of powers under section 457 Cr.P.C. regarding which, confiscation proceedings under section 72 of Act, 1910 are pending. It is also urged that Magistrate cannot usurp jurisdiction in this case by placing reliance upon Section 5 Cr. P. C. He further submits that since vehicle of applicant has been used for transporting illicit liquor and no proceedings having been initiated by applicant regarding theft or otherwise of seized vehcle before seizure of same, equity demands that disputed vehicle be not released in favour of applicant.
16. Learned A.G.A. has relied upon a Division Bench judgement of this Court in Virendra Gupta Vs. State of U.P. (supra), wherein Court has considered the law laid down in some of above mentioned cases and ultimately held that ratio laid down in Ved Prakash (Supra) is the correct law. Following has been observed by Division Bench in paragraphs 19 and 20:-
"19. The aforesaid argument of the learned counsel for the applicant at the first instance may appear to be attractive but upon a perusal of Section 72 of the 'Act' and Section 23 of the Delhi Excise Act, the aforesaid argument is liable to be rejected. Section 23 of the Delhi Excise Act expressly excludes the power of a Magistrate to release anything seized or detained u/s 457 Cr.P.C. if confiscation proceedings in respect of such seized articles are pending before the Collector. 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 u/s 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 u/s 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 u/s 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 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 u/s 72 of the U.P. Excise Act are pending before the Collector. "
On the basis of above, learned A.G.A. contends that release application filed by applicant seeking release of seized vehicle before Magistrate was itself not maintainable. Therefore, no illegality has been committed by Courts below in refusing to release the disputed vehicle.
17. I have considered the rival submissions. The issue that emerges for consideration in this application is whether courts below committed a jurisdictional error by rejecting the release application filed by applicant by placing reliance upon STATE (NCT of DELHI) Vs. NARENDER (supra) without deciding their own jurisdiction under Section 457 Cr. P. C. to adjudicate upon an application seeking release of sezied vehicle in respect of which, confiscation proceedings under section 72 of Act, 1910 are pending before District Magistrate.
18. Apex Court in STATE (NCT of DELHI) Vs. NARENDER (supra) dealt with provisions of Sections 33, 58 and 61 of Delhi Excise Act. On basis of aforesaid, Court concluded that jurisdiction of Courts to pass orders of release under Sections 451, 452 and 457 Cr. P. C. relating to such property which is subject matter of confiscation proceedings under aforesaid provisions of Delhi Excise Act is clearly ousted. Following has been observed by Apex Court in paragrapshs 12, 13, 14, 15 and 16:-
"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 underSection 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.
14. We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation or release to its rightful owner. The requirement of production of seized property before the Deputy Commissioner under Section 59(1) of the Act is, notwithstanding anything contained in any other law, and, so also is the power of confiscation. Not only this, notwithstanding anything to the contrary contained in any other law for the time being in force, no court, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in commission of any offence under the Act.
15. In the present case, the Legislature has used a non-obstante clause not only in Section 59 but also in Section 61 of the Act. As is well settled, a non-obstante clause is a legislative device to give effect to the enacting part of the section in case of conflict over the provisions mentioned in the non-obstante clause. Hence, Section 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof.
16. The view which we have taken finds support from a judgment of this Court in the case of State of Karnataka v. K.A. Kunchindammed, (2002) 9 SCC 90, which while dealing with somewhat similar provisions under the Karnataka Forest Act held as follows:-
"23..........The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under CrPC has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.
24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis."
19. In order to appreciate the above, reference be made to the observations made by a learned Single Judge of this Court in Virendra Gupta Vs. State of U.P. 2018 (105) ACC 518 wherein Court has observed as under in paragraphs 16 and 17:-
"16. The view which we have taken finds support from a judgment of this Court in the case of State of Karnataka v. K.A. Kunchindammed (2002) 9 SCC 90, which while dealing with somewhat similar provisions under the Karnataka Forest Act held as follows:
23. ..... The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under Cr.P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.
24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis.
17. From a conspectus of what we have observed above, the impugned order of the High Court is found to be vulnerable and, therefore, the same cannot be allowed to stand."
17. It must be mentioned here that in the Delhi Excise Act, there is a provision expressly excluding the jurisdiction of the Court in the matter of release of anything seized or detained under that Act, embodied in Section 61, and, quoted in paragraph 11 of the report in State (GNCT of Delhi) (supra). "
21. Power of Distirct Magistrate to order confiscation in respect of seized vehicle / goods under Section 72 of Act, 1910, came up for consideration recently before Apex Court in Civil Appeal No. 6438 of 2019 Mustfa Vs. State of U.P. and others reported in SCC online Web Edition, Page1.
21. Court elaborately dealt with the scheme contained in Section 72 of Act, 1910. Earlier judgement in State (NCT of Delhi) Vs. Narender (supra) and others and also issue regarding release of seized vehicle in respect of which proceedings under Section 72 of Act, 1910 are pending were also considered.
22. Court meticulously considered the above and upon evaluation observed as follows in paragraphs 14, 15, 16, 17, 18, 19 , 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29:-
" 14) Section 72(1) of the Act confers power of confiscation of animal, cart, vessel or other conveyance used by means of which an offence has been committed. Sub-section (2) of Section 72 of the Act confers power upon the Collector to order confiscation of such thing or animal "whether or not a prosecution for such offence has been instituted". Therefore, the power of the Collector to confiscate the seized thing or animal is independent of prosecution. This Court in Yogendra Kumar Jaiswal was dealing with the confiscation of property under the Orissa Special Courts Act, 2006 and the Bihar Special Courts Act, 2009. It was held that such confiscation is independent of result of prosecution under the Prevention of Corruption Act, 1988. The Court held as under:
"146. In the case at hand, the entire proceeding is meant to arrive at the conclusion whether on the basis of the application preferred by the Public Prosecutor and the material brought on record, the whole or any other money or some of the property in question has been acquired illegally and further any money or property or both have been acquired by the means of the offence. After arriving at the said conclusion, the order of confiscation is passed. The order of confiscation is subject to appeal under Section 17 of the Orissa Act.
That apart, it is provided under Section 19 where an order of confiscation made under Section 15 is modified or annulled by the High Court in appeal or where the person affected is acquitted by the Special Court, the money or property or both shall be returned to the person affected. Thus, it is basically a confiscationwhich is interim in nature. Therefore, it is not a punishment as envisaged in law and hence, it is difficult to accept the submission that it is a pre-trial punishment and, accordingly, we repel the said submission.
xx xx xx
149. We have already held that confiscation is not a punishment and hence, Article 20(1) is not violated. The learned counsel for the State would lay stress on the decision in State of A.P. v. Gandhi [State of A.P. v. Gandhi, (2013) 5 SCC 111: (2013) 2 SCC (Cri) 884]. In that case, the issue that arose for consideration was: when the disciplinary proceeding was initiated one type of punishment was imposable and when the punishment was imposed due to amendment of rule, a different punishment, which was a greater one, was imposed. The High Court opined that the punishment imposed under the amended rule amounted to imposition of two major penalties which was not there in the old rule. Dealing with the issue the Court referred to the rule that dealt with major penalties and the rule- making power. Reference was made to the decision in Pyare Lal Sharma v. J&K Industries Ltd. [Pyare Lal Sharma v. J&K Industries Ltd., (1989) 3 SCC 448 : 1989 SCC (L&S) 484] wherein it has been stated that no one can be penalised on the ground of a conduct which was not penal on the date it was committed. Thereafter, the two-Judge Bench referred to the authority in K. Satwant Singh v. State of Punjab [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ 410] wherein it has been held thus: (Gandhi case [State of A.P. v. Gandhi, (2013) 5 SCC 111 : (2013) 2 SCC (Cri) 884] , SCC pp. 133-34, para 46) "46. ... ''28. ... In the present case a sentence of imprisonment was, in fact, imposed and the total of fines imposed, whether described as ''ordinary' or ''compulsory', was not less than the amount of money procured by the appellant by means of his offence. Under Section 420 of the Penal Code an unlimited amount of fine could be imposed. Article 20(1) of the Constitution is in two parts. The first part prohibits a conviction of any person for any offence except for violation of law in force at the time of the commission of the act charged as an offence. The latter part of the article prohibited the imposing of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The offence with which the appellant had been charged was cheating punishable under Section 420 of the Penal Code which was certainly a law in force at the time of the commission of the offence. The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by Section 420. The sentence of fine also was not greater than that which might have been inflicted under the law which had been in force at the time of the commission of the offence, as a fine unlimited in extent could be imposed under the section.'" ( K. Satwant Singh case [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 : 1960 Cri LJ 410] , AIR p. 275, para28)"
15) Recently, this Court in Uday Singh referred to earlier judgments of this Court in State of Madhya Pradesh and Others v. Kallo Bai8 and Divisional Forest Officer and Another v. G. V. Sudhakar Rao and Others9 to approve the argument that criminal proceedings are distinct from confiscation proceedings. The Court held as under:
"22. In 2017, a similar view has been taken by another two judge Bench of this Court in Kallo Bai (supra) while construing the provisions of the Madhya Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam, 1969. By virtue of the amendments made to the Adhiniyam, Sections 15-A to 15-D were introduced to provide for confiscation proceedings in line with the provisions contained in the Forest Act as amended in relation to the State of Madhya Pradesh. Relying on the earlier decisions of this 8 (2017) 14 SCC 502 9 (1985) 4 SCC 573 Court including GV Sudhakar Rao (supra), Justice NV Ramana, speaking for the two judge Bench held:
"23. Criminal prosecution is distinct from confiscation proceedings. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the prosecution is to punish the offender. The scheme of the Adhiniyam prescribes an independent procedure for confiscation. The intention of prescribing separate proceedings is to provide a deterrent mechanism and to stop further misuse of the vehicle."
16) The proviso to sub-section (2) of Section 72 of the Act gives an option to the owner to pay such fine as the Collector thinks adequate not exceeding its market value in lieu of its confiscation.It, thus, transpires that it is the Collector who has been conferred exclusive jurisdiction to order confiscation of a thing or animal. The Collector has been further empowered to impose fine not exceeding the market value of the thing on the date of seizure. Thus, the power of confiscation of a vehicle or a thing is absolutely vested with the Collector except in certain circumstances, instead of confiscation, the fine, not exceeding the market value, can also be imposed but by the Collector alone.
17) Sub-section (3) of Section 72 of the Act is exception to sub-section (2) wherein, on receiving report of seizure or on inspection of the seized things, including any animal, cart, vessel or otherconveyance, which are subject to speedy wear and tear or natural decay or it is expedient in public interest to do so, the Collector may order such things or animal, except an intoxicant, to be sold by auction or otherwise. Therefore, in case any seized thing is subject to speedy wear and tear or natural decay, the Collector is empowered to sell the same by public auction. The power to sell the thing or animal pending confiscation proceedings is also contemplated if it is expedient in public interest to do so. Such provision empowers the Collector to order the sale of the vehicle or animal if he is satisfied that it is expedient in public interest even before an order of confiscation is passed by him.
18) The distribution of sale proceeds after the thing or animal is sold, is contemplated by sub-section (4) of Section 72 of the Act. It deals with a situation when no order of confiscation is ultimately passed or maintained by the Collector or an order passed on appeal under sub-section (7) so requires. Similar power is conferred to distribute the sale proceeds in terms of the order of the Court in case of a prosecution instituted for the offence in respect of thing or animal seized. Thus, sub-section (4) deals with the disposal of sale proceeds of the seized thing or Animal in terms of sub-section (3) of Section 72 of the Act. In other words, the sale conducted by auction or otherwise in terms of sub-section (3) is complete but the distribution of proceeds of sale alone is to be dealt with in the manner prescribed in sub-section (4) of Section 72 of the Act including an order of the Court dealing with prosecution instituted for the offence.
19) Sub-section (5) of Section 72 of the Act deals with the procedure and the limitations on the power of the Collector to sell the seized thing including any animal, cart, vessel or other conveyance in terms of sub-section (3) of Section 72 of the Act. Sub-section (6) of Section 72 of the Act confers power of review on the Collector of an order passed under sub-section (2).
20) Sub-section (7) of Section 72 of the Act confers a right of appeal to a judicial authority, as the State Government may appoint, against an order of confiscation under sub-section (2) or sub-section (6) ofSection 72 of the Act. In other words, an order of confiscation, other than in respect of seized things which are subject to speedy wear and tear or natural decay falling in sub-section (3) of Section 72 of the Act, is subject to appeal to the judicial authority. No appeal is provided in respect of an order passed under sub-section (3) of Section 72 of the Act in respect of seized things or animal which are subject to speedy wear and tear or natural decay or otherwise expedient in the public interest.
21) We find that in terms of Section 4 of the Code, trial of offences under IPC are to be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code. It further provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The offences under the Act in terms of sub-section (2) of Section 4 of the Code are to be dealt with according to the provisions of the Code but subject to the provisions of the Act regulating the manner or place of investigating, inquiring into, trying or dealing with such offences. Since the procedure of confiscation of the vehicle is prescribed under the Act, it is the provision of the Act which will be applicable and not Chapter XXXIV of the Code. Section 5 of the Code saves special or local laws or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
22) However, where a prosecution is instituted for an offence in relation to which confiscation was ordered, the things or animals are to be disposed of in accordance with the order of the Court subject to provisions of sub-section (4) of Section 72 of the Act. The order passed by the Court where a prosecution is instituted for the offence, in terms of sub-section (8) of Section 72 of the Act, is subject to provisions of sub-section (4) of Section 72 of the Act. Thus, the provision again deals with distribution of the sale proceeds after confiscation on conclusion of prosecution.
23) The power of release of the property produced before any criminal court whether interim or final in terms of Sections 451, 452 or 457 of the Code will not be available to court except the order in respect of distribution of sale proceeds. Therefore, the power under Sections 451, 452 or 457 of the Codeavailable to criminal court or Magistrate is inconsistent with the provisions contained in the Act regarding disposal of the property not only in respect of pending trial but also after the conclusion of the trial.
24) The argument raised that the judgment in Narender is not applicable to the present case cannot be accepted as the criminal court before whom the prosecution is lodged, will not have jurisdiction to release anything or animal whether interim or final as the Act in question has provisions contrary to the provisions contained in the Code. This Court in Narender relied upon the judgment in State of Karnataka v. K. A. Kunchindammed 10 and held as under:
"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.
14. We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been conferred with the power of its confiscation or release to its rightful owner. The requirement of production of seized property before the Deputy Commissioner under Section 59(1) of the Act is, 10 (2002) 9 SCC 90 notwithstanding anything contained in any other law, and, so also is the power of confiscation. Not only this, notwithstanding anything to the contrary contained in any other law for the time being in force, no court, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in commission of any offence under the Act.
15. In the present case, the legislature has used a non obstante clause not only in Section 59 but also inSection 61 of the Act. As is well settled, a non obstante clause is a legislative device to give effect to the enacting part of the section in case of conflict over the provisions mentioned in the non obstante clause. Hence, Sections 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof."
25) Though, Section 61 of the Delhi Excise Act, 2009 bars the jurisdiction of all Courts but, even in the absence of similar provisions in the Act, the principle laid down is applicable in the present case as the Act is inconsistent with the provisions of the Code.
26) The confiscation of a vehicle found in illicit transportation of the liquor is an offence which can be investigated by an Excise Officer as well as by a Police Officer. But the exclusive power of confiscation is vested with the Collector in terms of sub-section (2) of Section 72 of the Act. The sale proceeds of seized things or Animal which are subject to speedy wear and tear or natural decay, if sold, are required to be paid to the person found entitled thereto in terms of sub-sections (4) and (8) ofSection 72 of the Act.
27) Sub-section (9) of Section 72 of the Act clarifies that no order of confiscation made by the Collector shall prevent the infliction of any punishment to which the person affected thereby may be liable under this Act. Thus, the punishment consequent to the prosecution is distinct from the order of confiscation passed by the Collector.
28) In Madhukar Rao's case, the provisions of the Code and that of the Wild Life (Protection) Act, 1972 were examined. The Court found that the use of a vehicle in the commission of an offence under the Act, without anything else would bar its interim release appears to be quite unreasonable. The Court held that the provisions of Section 50 of the Wild Life (Protection) Act, 1972 and the amendments made thereunder do not in any way affect the Magistrate's power to make an order of interim release of the vehicle under Section 451 of the Code. The Court held as under:
"16. We are unable to accept the submissions. To contend that the use of a vehicle in the commission of an offence under the Act, without anything else would bar its interim release appears to us to be quite unreasonable. There may be a case where a vehicle was undeniably used for commission of an offence under the Act but the vehicle's owner is in a position to show that it was used for committing the offence only after it was stolen from his possession. In that situation, we are unable to see why the vehicle should not be released in the owner's favour during the pendency of the trial."
29) We find that sub-section (3) of Section 72 of the Act confers power on the Collector for release of the vehicle if it is considered expedient in public interest apart from the fact, when anything or animal is subject to speedy wear and tear or natural decay. Therefore, the basis of the order in Madhukar Rao are not applicable in the case in hand."
23. Upon comparison of provisions contained in Delhi Excise Act 2009 as well as Act, 1910, the Court finds that there is no provision in Act, 1910 similar to the provisions contained in Section 61 of Delhi Excise Act. Accordingly, ratio laid down in State (NCT of Delhi) Vs. Narender (supra) is confined to matters arising out of the Delhi Excise Act. As such, aforesaid judgement is distinguishable and the ratio laid down therein cannot be applied ipso facto for deciding release application in respect of seized vehicles regarding which confiscation proceedings are pending in terms of Section 72 of Act, 1910. As such, concerned Magistrate, as well as revisional court erred in law in rejecting the release application/ revision filed by applicant seeking release of seized vehicle by relying upon aforesaid judgement.
24. In view of law laid down by Apex Court as well as this Court as noted herein above, Magistrate as well as Revisional Court ought to have decided the issue regarding their own jurisdiction for releasing seized vehicle in exercise of powers under the Code in respect of vehicle which has been seized and confiscation proceedings in respect of which are pending consideration before District Magistrate under Section 72 of Act, 1910. However, the said issue remains unanswered by both the courts below.
25. As courts below have proceeded to refuse release of seized vehicle of applicant by placing reliance upon judgement of Apex Court in State (NCT of Delhi) Vs. Narender (supra) without decideing their jurisdiction to entertain the release application, filed by applicant seeking release of seized vehicle in terms of section 457 of Code, the orders impugned in present application cannot be sustained on account of erroneous reasoning and therefore, liable to be quashed.
26. Accordingly, present application succeeds and is allowed. Impugned orders dated 18.09.2020 passed by Additional Chief Judicial Magistrate/Additional Civil Judge (Sr. Div.) Court No.3, Aligarh in Case Crime No. 338 of 2019 under Section 62, 63, 72 U.P. Excise Act, Police Station- Akbarabad, District-Aligarh as well as order dated 31.10.2020 passed by Additional Sessions Judge/POCSO Act, Court No.02, Aligarh in Criminal Revision No. 136 of 2020 (Chandra Pal Vs. State of U.P.) under Sections-396, 397 Cr.P.C. are hereby quashed. Matter is remitted to concerned Magistrate to decide release application of applicant afresh in the light of observations made herein above within a period of one month from the date of production of a certified copy/ computer generated copy of this order which shall be filed by applicant before Court below by means of an affidavit.
Order Date :- 12.2.2021 YK