- (1.) MRS. Poonam Srivastava, J. Heard Sri N. I. Jafri, learned Counsel for the petitioner and learned A. G. A. for the State.
(2.) THE orders passed by the A. C. J. M. Court No. 1, Rampur dated 18-11-2006 refusing to release of Swaraj Tractor No. 735 No. UP 22-A 7213 (hereinafter referred as the disputed vehicle), which was confirmed in revision on 6-1-2007 passed by the Additional Sessions Judge/special Judge, E. C. Act, Rampur, are impugned in the instant writ petition. The petitioner claims himself to be the owner of the disputed vehicle which is duly registered by the A. R. T. O. , Rampur after it was purchased in the year 1996. Certain essential commodities were being carried on the seized vehicle which was seized by the respondents and a First Information Report was registered at case crime No. 625 of 2006, under Section 3/7 Essential Commodities Act with an allegation that the controlled commodities were being carried illegally. Two persons namely Sabez Khan son of Mohd. Jan Khan and Zamir Khan son of Jahid Khan were taken into custody. The arrested accused made confession before the police that the rice etc. belongs to one Maqsood, who is a contractor of the Govt. Godown and is engaged in lifting the quota of the essential commodities from the godown and deliver it to the various fair price shops of district Rampur. Two arrested accused have been released on bail but the petitioner is neither an accused nor runs any fair price shop. The only connection is that the vehicle seized alleged to be carrying essential commodities belong to the petitioner. An application was moved before the Additional Chief Judicial Magistrate for release of the tractor which has been rejected on the ground that since the vehicle was seized for violation of the essential commodities therefore, the release order will be passed only by the concerned District Magistrate. The order of rejection by the Additional Chief Judicial Magistrate has been confirmed by the learned Sessions Judge/special Judge E. C. Act on 6-1-2007. Sri N. I. Jafri has specifically stated that the learned Sessions Judge called for a report regarding pendency of proceedings under Section 6-A of the E. C. Act which was reported that no such proceedings are pending either before the Collector, Rampur or before the State Government and in the circumstances, it is emphatically argued that it is the Magistrate where the criminal proceedings are pending, was fully entitled to pass order of release. The ground of rejection that he has no jurisdiction, does not stand to reason specially since no confiscation proceedings are pending. The second prayer in the writ petition is for a direction in the nature of mandamus to the respondent No. 2 to release the vehicle. Learned A. G. A. has disputed the contention of the petitioner and has tried to support the two orders on the ground that since the Essential Commodities Act is a Special Act and therefore, the vehicle cannot be released under the General Law. The application for release under Section 451/457 Cr. P. C. was rightly refused by the Courts below.
(3.) I have considered the arguments on behalf of the respective Counsel for the parties. A Division Bench of this Court in the case of Jugual Kishore and Ors. v. State of U. P. and Anr. , A. C. J. (Vol. XXI) 1994 (2) 1030, ruled that in the event, a vehicle is seized and detained by the police officer or any other person authorized by the State Government having reasons to believe that one or the other offence has been committed, the question to be considered first is for its temporary release subject to owners furnishing adequate security within a reasonable period of time. If the vehicle is not released temporarily, the police officer or persons authorized to decide the question as to whether owner has committed any offence or any proceedings pending are liable to be compounded, the aggrieved person can very well approach this Court for its release under Article 226 of the Constitution. The aforesaid decision related to a vehicle that was seized for violation of the provisions of the Motor Vehicles Act, 1988. The criminal Courts had declined to release the vehicle under Section 451 or 457 Cr. P. C. for the reason that no criminal proceedings were pending and it was the A. R. T. O. alone who could exercise the right of release. The extract of paragraph 9 of the said decision is enumerated herein below:- "if the vehicle is not released temporarily the police officer or person authorised has to decide the question as to whether the owner has committed any offence or the offence is to be compounded. This exercise has also to be completed within reasonable period of time. When the police officer or authorized person does not release the vehicle so seized on being satisfied that an offence has been committed or refuses to compound the offence, he is duty bound to complete the investigation/inquiry within a reasonable time what is a reasonable time in a given case would depend on the peculiar facts and circumstances of that case and to file a complaint before the Magistrate competent to try the case and the Magistrate on the complaint being so laid before him would have the jurisdiction to release the vehicle pending trial as provided under Section 451 Cr. P. C. and later on to pass an order as to the final disposal of the vehicle as provided under Section 451 Cr. P. C. at the conclusion of the trial. If the complaint is not laid before the Magistrate within a reasonable time it is always open to the owner of the vehicle to approach the Court under Article 226 of the Constitution. " The Apex Court has also emphasized and favoured release of articles even in a case where the seized article is a case property. In the case of Sunder Bhai Ambalal Desai v. State of Gujarat, 2003 (1) JIC 615 (SC) : 2003 (46) A. C. C. 223, has clearly held that the powers under Section 451 Cr. P. C. should be exercised expeditiously and judiciously. It would serve various purposes:- (i) Owner of the article would not suffer because of its remaining unused, (ii) Court or the police would not be required to keep the article in safe custody, (iii) If a proper panchnama before handing over article is prepared, that can be used in evidence instead of its production before the Court during the trial, if necessary, (iv) This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. The Apex Court has clearly held that appropriate orders should be passed immediately because keeping it at police station for a long period would only result in decay of the article. The Court should ensure furnishing of adequate bond, guarantee or security in accordance with facts and circumstances of each case. Several other decisions have been brought before the Court in support of petitioners' contention, where the Courts have considered the release of goods on the principle laid down in the case of Sunder Bhai Ambalal Desai (supra) to ensure that no loss is caused to its owner on account of continuous detention.;