AKHILESH KUMAR Vs. STATE OF U.P.

JUDGEMENT

(1.) This criminal misc. application under Sec. 482 Cr.P.C. is filed challenging the order dtd. 16/4/2021 passed by Chief Judicial Magistrate, Mainpuri and order dtd. 2/9/2021 passed by Sessions Judge, Mainpuri in criminal revision No. 28 of 2021 (Akhilesh Kumar vs. State of U.P.) in crime No. 165 of 2021 under Ss. 60/72 Excise Act and Sec. 272, 420 IPC, P.S. Kotwali, District Mainpuri.

(2.) In brief the facts are that an FIR crime No. 165 of 2021 was lodged on 16/3/2021. According to prosecution case on 16/3/2021, the police party on information received from informer, intercepted 3 four wheelers and on search recovered 200 ltrs adulterated illicit liquor contained in five jerrycans and seized two vehicles Mahindra Marazzo, Registration No. UP 84 CA 5621 and a Toyota Qualis bearing No. UP83 AR 4994. The police also arrested seven persons who are named in the FIR. The applicant moved an application before the Chief Judicial Magistrate, Mainpuri for release of vehicle No. UP 84 CA 5621 Mahindra Marazzo, on the ground that he is the registered owner of the vehicle. On 15/3/21 his driver has took away the vehicle in marriage of his relative. The police seized the vehicle from the house of the driver and implicated it in this case. This release application was dismissed by the Chief Judicial Magistrate, Mainpuri by the impugned order dtd. 16/4/2021. Aggrieved with it, the applicant preferred criminal revision No. 28 of 2021 which has also been dismissed by the Sessions Judge, Mainpuri vide impugned judgment and order dtd. 2/9/2021.

(3.) Learned counsel for the applicant submitted that applicant is the owner of the vehicle and GPS system clearly shows that the vehicle in question was not present at the spot as told by the prosecution. The applicant has filed release application during pendency of the confiscation proceedings. The vehicle is standing in the open space and there is chance of natural decay. The vehicle is a court property and court has power to release it in favour of the registered owner during pendency of the trial. The property is mechanical in nature and if it remain unused and not taken due care, it may became useless. It is also contended that no offence under sec. 60/72 Excise Act and Ss. 272 and 420 IPC is made out. The impugned orders passed by the Chief Judicial Magistrate, Mainpuri and Sessions Judge, Mainpuri are wholly illegal and bad in the eyes of law. Learned counsel also contended that the learned Magistrate has rejected the application on the ground that he has no jurisdiction as confiscation proceeding is pending. The view taken by the learned Magistrate is erroneous. The revisional court has adopted the same view and relying on the citation of State (NCT) of Delhi. vs. Narendra 2014 (13) SCC 100 and Mustafa vs. State of U.P. Civil Appeal No.6438 of 2019 (arising out of SLP (Civil) No.1111 of 2018) and Virendra Gupta vs. State of U.P. 2019 (6) ADJ 432 Division Bench Allahabad High Court has dismissed the revision also. Both the courts below have misinterpreted the aforesaid citations and have failed to apply the correct law. The jurisdiction of the Magistrate is not barred. Learned counsel placed reliance on the case of Murad Ali vs State of U.P. decided on 23/11/2021 in application U/s 482 Cr.P.C. No.21547 of 2021 and the case of Chandra Pal vs. State of U.P., application U/s 482 Cr.P.C No.1325 of 2021 decided on 12/2/2021.