- (1.) RAJIV Sharma, J. Heard Sri Arif Hasan, Counsel for the petitioner and Sri Rakesh Srivastava, Standing Counsel for the State.
(2.) IT is stated by the petitioner's Counsel that the petitioner had pur chased a second hand Maruti Van bearing registration No. U. P.-32-A-5958 from its registered owner Mohd. Rizwan after verifying the antecedents from the transport department. The Regional Transport Officer, Lucknow informed that there is no legal impediment in transfer of the vehicle, and as such the same was transferred in the name of the petitioner. Petitioner's Counsel submit that all of a sudden, on 14th July, 2003, the police of P. S. Ashiyana, Lucknow came to the petitioner's place and demanded the documents of the vehicle, which the petitioner showed to him, but instead of returning the same they took the appears with them and asked the peti tioner to come at the police station alongwith the vehicle. At the police sta tion, he came to know that the vehicle was involved in carrying the illicit liquor for which a case No. 121 of 2001 under section 60 of the Excise Act was registered against the original owner of the vehicle, namely, Vinod Kumar Singh against whom notice was also issued by the District magistrate under section 72 of the Act, but said Vinod Kumar Singh did not furnish any reply and allowed the proceedings to go ex-parte as he had already sold the said vehicle to one S. K. Srivastava. It may be mentioned that S. K. Srivastava sold the vehicle to one Mohd. Rizwan on 22. 2. 2002, who, in turn, sold the same to the petitioner on 15th February, 2003. Aggrieved by the action of the District Magistrate and opposite party No. 4, the petitioner field a statutory appeal under section 72 (7) of the U. P. Excise Act before the District Judge, Lucknow, who directed that before confis cation and auction, the petitioner be afforded an opportunity and disposed of the appeal by the order dated 23. 5. 2003. Thereafter the petitioner submitted a detailed representation to the District Magistrate, Lucknow, and prayed to re call the order of confiscation but the same was declined by the order dated 6. 4. 2004. Against the order dated 6. 8. 2004, the petitioner again preferred an appeal but the same was dismissed by the judgment and order dated 1. 10. 2004.
(3.) IT is contended by the learned Counsel for the petitioner that the District magistrate as well as appellate authority committed manifest error of law and facts in not considering the entire materials on record and had not ap plied their independent mind. The petitioner has purchased the vehicle after verifying the authenticity of the documents from the Transport Department and there was no caution marked or embargo in respect of the said vehicle and the same was duly transferred and recorded in the name of the petitioner on 15th February, 2003. The proper course available to the opposite party No. 2 and the police was to proceed against Vinod Kumar Singh, who was the origi nal owner of the vehicle, if he had committed any offence and not against the petitioner. Learned Counsel for the petitioner next contended that the confiscation order has been passed by the District Magistrate under the impression that Vinod Kumar Singh, who was involved in the trade of illicit liquor, is the owner of the vehicle in question without ascertaining the fact that he has sold the vehicle to S. K. Srivastava, who in turn sold the same to Mohd. Rizwan and from Mohd. Rizwan, the vehicle was purchased by the petitioner. He further submitted that inspite of knowledge to the District Magistrate that Vinod Kumar Singh was involved in the commission of offence, no proceedings were initiated against him.;