Krishna Mohan Sharma vs State of U.P.

Bhagwan Din, J.—Heard Sri Mohd. Shabbir, learned Counsel appearing for the applicant and the learned A.G.A.

The vehicle, bearing registration No. UTI 8127, was intercepted carrying 100 gunny bags, each containing 200 pouches of illicit liquor. The persons involved in the transportation of illicit liquor have been challaned and the vehicle is detained at the police station, C.B. Ganj (Collector Baque Ganj).

The applicant Krishna Mohan Sharma moved an application before the Magistrate for release of that vehicle, who rejected the same. Against that order the applicant filed Criminal Revision No. 236 of 1997. The revisional court, considering the legal position, allowed the revision and directed the Magistrate to release the vehicle in favour of the actual owner of the same on his furnishing personal bond and one surety to his satisfaction on an undertaking to produce the vehicle as and when required by the Court.

The Magistrate did not release the vehicle as directed by the revisional court. The Collector, Bareilly, has served a notice on the applicant and started confiscation proceedings. It may be mentioned that against the said notice, the applicant has filed an appeal before the District Judge which has been allowed to the extent that the Collector shall hear the matter on merit and pass suitable orders. However, he made a direction that till disposal of the matter by the Collector, the vehicle in question shall remain in custody of the Collector. Against only this part of the order, the present application u/s 482, Code of Criminal Procedure has been filed.

The learned A.G.A. raised an objection that the learned District Judge, Bareilly, decided the appeal on civil side, therefore, on the criminal side, u/s 482, Code of Criminal Procedure, this application cannot be entertained.

I am unable to agree with the submission of the learned A.G.A. because the confiscation proceedings are drawn u/s 72 of the U.P. Excise Act, which is enacted under a Special Act providing confiscation of the vehicle. Therefore, the appeal will certainly lie on the criminal side. Consequently, the application u/s 482, Code of Criminal Procedure, is maintainable.

As far relates to the direction of the Court below that the vehicle shall not be released and shall remain in custody of the Collector till disposal of the matter of confiscation by the Collector, it may be mentioned that this Court in number of cases has observed that pendency of proceeding for confiscation will not be a bar for releasing the seized goods, vehicle etc. u/s 457. Code of Criminal Procedure In this view of the matter, the learned District Judge was not correct in making such direction, particularly when by order dated 28.6.1997 Vlth Additional Sessions Judge, Bareilly, had already directed the trial court to release the vehicle on the terms and conditions contained in that order. It is pertinent to mention that while issuing direction in the order dated 28.9.1998, the District Judge was neither distinguished nor deferred from the order of the revisional court. Therefore, I am of the view that the portion of the order directing that the vehicle shall remain in the custody of the Collector, is not sustainable.

The application is, therefore, allowed. That part of the order directing continuance of the custody of the vehicle in the custody of the Collector till disposal of the matter relating to the confiscation proceedings, pending before the Collector, is quashed. The trial court will pass appropriate order in view of the direction made by the revisional court in the order dated 28.6.1997, passed in Criminal Revision No. 236 of 1997, Krishna Mohan Sharma v. State of U.P.