[S.72 UP Excise Act] Judicial Magistrate Cannot Release Vehicle During Pendency Of Confiscation Proceedings Before DM: Allahabad High Court

The Allahabad High Court has held that Judicial Magistrate has no jurisdiction to release vehicle during pendency of confiscation proceedings before the District Magistrate under Section 72 of the Uttar Pradesh Excise Act, 1910.

Section 72 provides things which are liable for confiscation including any intoxicant in respect of which any offence has been committed. Section 72(1)(e) provides that any conveyance in which such intoxicant is being carried is liable to be confiscated. Section 72 further empowers the Collector to carry out confiscation proceedings in respect of such conveyance and inform the owner or the person from who such conveyance is seized in writing.

The bench of Justice Nalin Kumar Srivastava held that “if a vehicle is seized under the provisions of the Excise Act and confiscation proceedings in respect thereof are going on before the Collector, a Judicial Magistrate has got no jurisdiction to release the aforesaid vehicle.”

Factual Background

Petitioner along with another person was intercepted while engaged in transporting 12 bottles of illegal liquor having a wrapper with remark of 'Royal Stag Whisky for sale in Haryana and Delhi'. Both persons were arrested, and FIR was lodged under Sections 60, 63, 72 of the Uttar Pradesh Excise Act, 1910.

Petitioner moved an application for release of the car, showing himself to be its owner. Since confiscation proceedings were pending before the District Magistrate, the application for release of car was rejected for lack of jurisdiction of the Judicial Magistrate under the Excise Act. Revision against the order was also rejected by the District Judge, Shamli. Accordingly, petitioner approached the High Court under Article 227 of the Constitution of India.

High Court Verdict

The question as framed by the Court was whether the Judicial Magistrate has the jurisdiction for release of conveyance when confiscation proceedings regarding such conveyance are pending before District Magistrate.

Due to contradicting views taken by several single judge benches of the Allahabad High Court, the question of law was referred to a larger bench in Virendra Gupta Vs. State of U.P. , where it was held that Section 72 of the Excise Act, being a specific legislation, does not import the powers prescribed under Section 451 or 457 CrPC to release vehicles confiscated. Accordingly, it was held that goods cannot be released by Judicial Magistrate under CrPC when confiscation proceedings are pending under Excise Act.

Justice Srivastava held that being the owner of the vehicle does not give any right to a person to move the Judicial Magistrate for release of his vehicle when proceedings under Section 72 of Excise Act are pending as the Judicial Magistrate has no jurisdiction in such proceedings.

“Needless to say that even if the petitioner before the Court is the registered owner of the vehicle, this fact does not offer any certificate regarding his entitlement to move an application for release of such vehicle before the Court of a Judicial Magistrate who is denuded of his jurisdiction in such matters as the jurisdiction is an ornament of the Court which cannot be imposed or created and it is inherited in a particular Court.”

Accordingly, the Court upheld the order of the District Judge as well as the Chief Judicial Magistrate rejecting petitioner's application.

Case Title: Pramit vs. State of U.P. and Another 2024 LiveLaw (AB) 466 [MATTERS UNDER ARTICLE 227 No. - 6929 of 2024]

Case citation: 2024 LiveLaw (AB) 466

Click Here To Read/Download Order