Faiyaz vs The State of U.P.

Raj Mani Chauhan, J.—Heard learned Counsel for the petitioner and learned Additional Government Advocate for the State as well as perused the documents available on record.

This petition u/s 482 of the Code of Criminal Procedure (hereinafter referred to as the ''Code'') has been filed by the petitioner for quashing the impugned order dated 18.10.2010 passed by the learned Chief Judicial Magistrate, Ambedkar Nagar in Misc. Case No. 1511/2010, u/s 207 of the Motor Vehicle Act, 1988 (hereinafter referred to as the ''Act'') whereby the learned Magistrate has rejected the application moved by the petitioner to release his vehicle seized by the A.R.T.O., Ambedkar Nagar u/s 207 of the Act.

The learned Counsel for the petitioner submits that Section 457 of the Code lays down that:

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 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.

In view of the above provision, the court has ample power to release the property.

Learned Counsel further submits that from a perusal of the impugned order, it appears that the petitioner had moved an application for release of his vehicle which was seized by the ARTO, Ambedkar Nagar. The Chief Judicial Magistrate called a report from the ARTO but the ARTO has neither submitted any report in compliance of the order passed by the learned Chief Judicial Magistrate nor sent challan in the court, therefore, the learned Chief Judicial Magistrate had power to release the vehicle.

Learned Counsel for the petitioner in support of his argument has placed reliance on the case of Ram Prakash Sharma v. State of Haryana (1978)2 Supreme Court Cases 491 decided by the Hon''ble Apex Court.

Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate raised a preliminary objection that the petition u/s 482 of the Code is not maintainable. Learned A.G.A. submits that Section 207(2) of the Act specifically provides that when any vehicle is seized under under Sub-section (1) of Section 207 of the Act by the ARTO or RTO, the registered owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorized in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority may deem fit to impose. In this case the learned Chief Judicial Magistrate had no power to release the vehicle rather it can be released by the transport authority or any officer authorized by the State Government. Learned A.G.A. in support of his argument has placed reliance on the case of Deoraj Singh v. State of U.P. 2010 (69) ACC 259 , Jagatpal Singh Vs. State of U.P. and others, and Mazhar Ali Khan v. Chief Judicial Magistrate and Ors. 1995 AWC 849 (DB) decided by this Court.

I have considered the submissions advanced by learned Counsel for the petitioner and learned A.G.A.

In this case, admittedly the ARTO had seized the vehicle of the petitioner u/s 207 of the Act. Section 207 of the Act reads as under:

Power to detain vehicles used without certificate of registration permit, etc.

(1) Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle:

Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by Sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.

(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose.

From a perusal of the Sub-section (2) of Section 207 of the Act as quoted above, it is clear that when any vehicle is seized under under Sub-section (1) of Section 207 of the Act by the ARTO or RTO, the registered owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorized in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority may deem fit to impose.

In the case of Jagat Pal Singh and Ors. (supra), the Division Bench of this Court has already observed in para 4 of the judgment which reads as under:

From a perusal of Section 207 of the Act is appears that the remedy available to the petitioner is to apply to the transport authority or any officer authorized in this behalf by the State Government together with relevant documents for the release of the vehicle in terms of Sub-section (2) of Section 207 of the Act. We are of the view that since statue provides power to release the vehicle on the concerned authority under Sub-section (2) of Section 207 of the Act and the application of the writ petitioner, the writ petitioner should act according to the statute and take appropriate steps in terms of section 207(2) of the Act and make appropriate application before the concerned authority. We are of the further view that it is incumbent on the part of the parties to follow the procedure laid by the statute and have no jurisdiction or authority to direct release of the vehicle through Chief Judicial Magistrate with all respect to the other Divisions Bench orders which have been passed from time to time which are not in the form of judgment and in fact no ratio has been laid down therein. It is well settled that mere order will not have binding unless a ratio has been laid down.

In view of the above, the petition u/s 482 of the Code is not maintainable.

In the case law cited by the learned Counsel for the petitioner, the facts were different. This case does not relate to the case of release of the vehicle seized by the transport authority; rather it relates to the case of currency noes recovered by the police in connection with the offence. No provision had been laid down for release of motor vehicle.

In view of the discussions made hereinabove, the petition filed by the petitioner u/s 482 of the Code is not maintainable.

Accordingly the petition is dismissed.