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created Nov 6th 2021, 05:31 by fatbatman



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Court No. - 84  
Case :- APPLICATION U/S 482 No. - 9961 of 2021  
Applicant :- Jaikawar  
Opposite Party :- State of U.P. and Another  
Counsel for Applicant :- Punya Sheel Pandey  
Counsel for Opposite Party :- G.A.  
Hon'ble Dr. Yogendra Kumar Srivastava,J.  
1. Heard Sri Punya Sheel Pandey, learned counsel for the applicant and Sri Pankaj Saxena, learned Additional Government Advocate-I along with Ms. Rachna Tiwari, learned Additional Government Advocate appearing for State-opposite party.  
2. The present application under Section 482 of the Code of Criminal Procedure1 has been filed seeking to quash the order dated 08.09.2020 passed by the Additional Sessions Judge/F.T.C. Court No.1, Deoria in Criminal Revision No. 21 of 2020 (Jaikawar vs. State of U.P.) and order dated 17.01.2020 passed by the learned Chief Judicial Magistrate, Court No.17, Deoria in Misc. Application No. 37 of 2020, arising out of Case Crime No. 924 of 2019, under Sections 60/63 of Excise Act and Section 473 IPC, P.S. 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. 60-J-1553, Engine No. 15CRA1LPYW01221 and Chassis No. MAT627121KLA01882 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 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. 21 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 has been placed upon the judgments in the case of Nand Vs. State of U.P.3, Rajiv Kumar Singh Vs. State of U.P. and others4, Vikas Kumar vs. State of U.P. and another5, Chandra Pal vs. State of U.P. and another6 and Sunderbhai Ambalal Desai vs. State of Gujarat7.  

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