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TMI Blog2014 (1) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... hile constables Raghmender Singh and Sunil were on night patrolling duty at Kirari Nithari turn on 17th of April, 2011, they saw a vehicle coming from the side of the Nithari Village. Constable Raghmender Singh signalled the driver to stop the vehicle, but he did not accede to his command and turned the vehicle into the Prem Nagar Extension Lane. Both the constables chased the vehicle on their motorcycle and the driver of the vehicle, apprehending that he would be caught, left the vehicle and ran away from the place, taking advantage of the darkness. The vehicle abandoned by the driver was "Cruiser Force" and had registration No. HR-56-7290. After opening of the windows of the vehicle, 27 Cartons, each containing 12 bottles of 750 ml. Masha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the learned Metropolitan Magistrate. The High Court, by its impugned order dated 28th of November, 2011 directed the vehicle to be released in favour of the registered owner on furnishing security to the satisfaction of the Metropolitan Magistrate. While doing so, the High Court has observed as follows: ".........The vehicle in question was seized by the Police and not confiscated and if that was so, Section 58, Delhi Excise Act would not apply with regard to the vehicle in question and the procedure that was to be followed regarding the vehicle was to be found in Chapter VI of Delhi Excise Act and also Section 451, Cr.P.C........." Mr. Mohan Jain, Additional Solicitor General appears on behalf of the appellant whereas the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscation.- Whenever an offence has been committed, which is punishable under this Act, following things shall be liable to confiscation, namelyxxx xxx xxx (d) any animal, vehicle, vessel, or other conveyance used for carrying the same." From a plain reading of Section 33(a) of the Act, it is evident that transportation of any intoxicant in contravention of the provisions of the Act or of any rule or order made or notification issued or any licence, permit or pass, is punishable and any vehicle used for carrying the same, is liable for confiscation under Section 58(d) of the Act. Section 59 of the Act deals with the power of confiscation of Deputy Commissioner in certain cases. Section 59(1) thereof provides that notwithstanding anything ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case, the High Court, while releasing the vehicle on security has exercised its power under Section 451 of the Code. True it is that where any property is produced by an officer before a criminal court during an inquiry or trial under this section, the court may make any direction as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, as the case may be. At the conclusion of the inquiry or trial, the court may also, under Section 452 of the Code, make an order for the disposal of the property produced before it and make such other direction as it may think necessary. Further, where the property is not produced before a criminal court in an inquiry or trial, the Magistrate is em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-obstante clause is a legislative device to give effect to the enacting part of the section in case of conflict over the provisions mentioned in the non-obstante clause. Hence, Section 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof. The view which we have taken finds support from a judgment of this Court in the case of State of Karnataka v. K.A. Kunchindammed, (2002) 9 SCC 90, which while dealing with somewhat similar provisions under the Karnata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis." From a conspectus of what we have observed above, the impugned order of the High Court is found to be vulnerable and, therefore, the same cannot be allowed to stand. To put the record straight it is relevant here to state that the counsel for the respondent had not, and in our opinion rightly, challenged the vires of the provisions of the Act in view of the decision of this Court in the case of Oma Ram v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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