Dismissed

Arun Kumar v. State of U.P. and 2 Ors.

Allahabad HC17 Jan 2019CRLRD/36/2019

Case brief

AI extract

What is this about?

In a criminal revision under Ss. 397/401 Cr.P.C., this court dismissed the appeal against an order confiscating a vehicle loaded with denatured spirit and ganja. The court held that the confiscation under the U.P. Excise Act, valid procedure, and dismissal of the appeal was correct.

What did the court decide?

The criminal revision sunderbhai wathe the impugned order dated 24.11.2018 was dismissed.

Arun Kumar Vs State of U.P. and 2 Ors. — Constitutional and Fundamental Rights | Allahabad HC (2019)

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Court No. - 25

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Case :- CRIMINAL REVISION DEFECTIVE No. - 36 of 2019

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Revisionist :- Arun Kumar Opposite Party :- State Of U.P. And 2 Ors. Counsel for Revisionist :- Roopesh Kumar Nigam Counsel for Opposite Party :- G.A.

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Hon'ble Ram Krishna Gautam,J.

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This Criminal Revision u/s 397/401 Cr.P.C. has been filed by Arun Kumar against State of U.P. and others, against the impugned order dated 24.11.2018 passed in Civil Appeal no. 94 of 2018 (Computer Suit No. 05/D 201817140000849), Arun Kumar Vs. State of U.P., passed by District Judge, Basti, related with order dated 9.10.2018 passed in Suit No. 00849 of 2018 (Computer Suit No. D201817140000849) passed by the District Collector/ Magistrate, Basti, with this contention that the impugned order is illegal, arbitrary and passed without application of judicial mind. It was against the material evidence placed on the record. The factual controversy cannot be decided without recording the evidence oral or documentary but while passing the impugned orders the courts below failed to appreciate it. In the present case the revisionist and his brother have already been enlarged on bail. There was no involvement of the revisionist in the alleged offence. All the papers of Vehicle No. UP 51 AD 4057 are valid and the revisionist is the registered owner of the same. A false implication was made by the police in which the vehicle was involved and this revision is for setting aside the impugned order and for allowing the appeal.

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Heard learned counsel for the revisionist and learned AGA. Perused the available record.

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Learned counsel for the revisionist argued that the proceeding u/s 72(2) of the U.P. Excise Act, 1910 before the District Magistrate, Basti, in Case No. 849 of 2018, State Vs. Arun Kumar, has been assailed to be without any evidence on record. The appeal u/s 72(5) of the above Act filed before the learned District Judge, Basti, was dismissed without application of mind and the revisionist is the registered owner of the vehicle concerned. He has been enlarged on bail in above two case crime numbers in which the vehicle was involved, hence the contention of revision has been pressed.

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Learned AGA appearing for the State has vehemently opposed the revision with this contention that the citations pressed and argued before this Court were also pressed and argued before

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the learned Appellate Court and the same have been fully analyzed and written in the impugned judgment. The revisionist was given opportunity to make deposit of the cost of the vehicle before its auction, hence, the same has been requested to be rejected.

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The admitted fact is that a case crime No. 42 of 2018, u/s 272, 273 I.P.C. read with section 60(2), 63 and 72 of the U.P. Excise Act was registered at police station Kaptanganj, District Basti, on 11.4.2018 on the basis of recovery memo prepared on spot when upon surprise checking the vehicle Scorpio Car bearing Registration No. UP 51 AD 4057 was found with denatured spirit in the tune of 20 liter per container in ten containers i.e. total 200 Liters denatured spirit was recovered from this vehicle for which there was no justification. Besides this there was a recovery of Ganja of 1 Kg 200 Gms from this vehicle and for it also there was no justification. Hence, another Case Crime No. 43 of 2018 u/s 8/20 N.D.P.S. Act was registered. A report of police station concerned was submitted before the District Magistrate for confiscation of above vehicle Scorpio UP 51 AD 4057 u/s 72 of the U.P. Excise Act. The District Magistrate issued notice to the registered owner Arun Kumar, the present revisionist. Reply was filed u/s 72(2) of the aforesaid Act. The Collector heard both the sides and passed an order of confiscation with a priority to the registered owner in the form of an opportunity to make deposit of the market value of the vehicle concerned, if he wishes and in case of failure in making payment for auction sale of the vehicle. This order was appealed u/s 72(5) of the U.P. Excise Act before the District Judge, Basti, in Civil Appeal. This appeal was heard by the learned District Judge, Basti, and the impugned judgment and order dated 24.11.2018 was passed.

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Now, the law of this Court in Criminal Revision No. 1455 of 2018, Jagdish Singh Vs. State of U.P. and others , as well as the law propounded by the Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujrat, AIR 2003 SC 638 have been pressed. These laws were also pressed before the lower appellate court. Those laws were not regarding confiscation proceeding taken and decided by the District Magistrate and appeal before the District Judge rather the law propounded in above cited case of Sunderbhai Ambalal Desai (supra) was with a view to save the loss of national property that may occur by keeping the vehicle in open place before police station and natural decaying of the same for which the Magistrate was directed to make disposal of the vehicle in accordance with the provisions given in the Code, whereas in the present case the Police Station Officer himself took the step for early disposal of the vehicle concerned and he reported the matter for confiscation before the District

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Magistrate as provided under section 72 of the U.P. Excise Act. The District Magistrate after observing the procedure given in the above mentioned sections and rules made therein issued notice to the registered owner of the vehicle, who appeared before the Collector and pressed his case. This was considered by the Collector but the recovery of above illicit denatured spirit in huge quantity of 200 Liters along with 1 Kg 200 Gms. Ganja from the above Scorpio vehicle was not denied by the registered owner to be under his consciousness. Moreso, it is a question of fact to be decided by the Trial Court and not by an independent proceeding u/s 72 of the U.P. Excise Act before the Collector or in Civil Appeal u/s 72(5) of the U.P. Excise Act before the District Judge, rather it was to be decided by the factual evidence and analysis by the Trial Court of the Magistrate or Special Judge concerned but the above disposal of vehicle for saving national loss was made by the Collector by passing the confiscation order and thereafter for making auction if the registered owner does not intend or deposit the market value of the vehicle concerned. Thus, the above citations are over fact different than present facts.

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In the present case the Appellate Court has exercised its due power and diligence for appreciation of facts and law placed before it. The vehicle in question was apprehended while was loaded with huge amount of denatured spirit and Ganja over it. This has been confiscated in favour of the State under section 72 of the U.P. Excise Act. Before its confiscation and auction the registered owner was given notice and was heard and was given option to deposit market value of the vehicle in favour of the State and in case of his failure to deposit subsequent step was to be taken by the District Collector, hence the Appellate Court has erred nothing. The impugned order is well within the domain of law with reasoned discussion. This revision merits dismissal.

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Dismissed accordingly.

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Order Date :- 17.1.2019 Pcl

Arun Kumar v. State of U.P. and 2 Ors.

Case brief

What is this about?

What did the court decide?

Arun Kumar v. State of U.P. and 2 Ors.

Case brief

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