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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).

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'.

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.