JUDGMENT
S.K. Agarwal, J.
1. This petition under Sections 397/401 of the Code of Criminal Procedure, 1973 is directed against order dated 28th April, 2000 passed by the Court of Metropolitan Magistrate, Delhi declining to release Vehicle No. HYN 849 to the petitioner, in case FIR No. 543/99 seized under Section 61 of the Punjab Excise Act, 1914 (for short “the Act”), P.S. Saraswati Vihar.
2. Briefly stated the facts are: that on 14th August, 1999, police of P.S. Saraswati Vihar stopped and checked Gypsy No. HYN 849; it was found to contain five bags of country-made liquor totalling one thousand pouches; he disclosed that the Gypsy was given to him by the petitioner’s husband Hasrat Ali at the border; thereafter he was arrested under Section 25 of the Act; after investigation, challan was filed and cognizance was taken. Petitioner moved an application for release of the said vehicle pending final disposal of the case, submitting therein that she is the registered owner of the vehicle; that she is not accused in the case and that she would produce the vehicle as and when required. Police submitted the report, opposing release of the vehicle. The trial court dismissed the application on 28.4.2000 holdings:-
“Pr.Applicant with counsel.
I have heard and perused the report. Applicant is the wife of the accused and the vehicle No. HYH 849 is continuously used for illegal supply of liquor and is involved in FIR No. 403/97, 280/98 and 297/98 of P.S. Badli. Hence, there is every likelihood of using this vehicle for illegal traffic of liquor. Hence, application rejected.”
The above order is under challenge. I have heard learned counsel for the petitioner and have been taken through the record.
3. Learned counsel for the petitioner argued that the case is still pending before the trial court; the vehicle was impounded by the police and is lying at the police station; the applicant is the registered owner of the vehicle; she is not an accused, therefore, she is entitled for release of the vehicle pending final disposal of the case. Learned APP for State argued to the contrary and submitted that the Gypsy was found carrying illicit liquor by the husband of the petitioner, who is also found involved in three earlier excise cases and under Clause (e) of sub-Section (1) of Section 78 of the Act, the Gypsy is liable for confiscation. Therefore, the petitioner is not entitled to the same.
4. In order to appreciate the rival contentions, it is necessary to refer to Clause (e) of sub-Section (1) and sub-Section (2) of Section 78 of the Act. It reads:-
“78. Confiscation of Article in respect of which offence has been committed.-
(1) Whenever an offence punishable under this Act has been committed.
(a) to (d) xxx xxx xxx
(e) every animal, car, vessel, raft or other conveyance used in carrying such receptacle or package, converting or articles as aforesaid;
shall be liable to confiscation.
Provided that when it is proved that the receptacles animals, or other articles specified in Clauses (d) and (e) are not the property of offender, they shall not be liable to confiscation if the owners thereof establishes that he had no reason to believe that such offence was being or was likely to be committed.”
(2) When confiscation may be ordered.–When in the trial of any offence punishable under this Act the Magistrate decides that anything is liable to confiscation under Sub-Section (1) he may order confiscation;
Provided that in lieu of ordering confiscation he may give the owner of the thing liable to be confiscation an option to pay such fine as the Magistrate thinks fit.”
5. A bare reading of the above Section shows that whenever an offence punishable under the Act has been committed, every conveyance used for carrying the receptacle or package or covering or article is liable to confiscation. However, if such conveyance etc. is not the property of the offender, the confiscation can be avoided, if the owner establishes that he had no reason to believe that such offence was being committed or was likely to be committed.
6. Section 451 Cr.P.C. empowers that trial court to order for custody and disposal of the property pending trial in certain cases. The property can be delivered to the person entitled to the possession regarding which offence appears to have been committed, or which appears to have been used for commission of any offence, is produced before the criminal court during inquiry or trial. The court is empowered to make such interim orders as it thinks fit for the proper custody of the property. The question of confiscation would arise only when the offence is proved to have been committed and not earlier. This Court in Chander Bhan v. State, 1971 Crl.L.J. 167 held that merely because the vehicle was used on the previous occasion for smuggling of liquor could not be a valid ground for refusing delivery of the same to its lawful owner. It was held:-
“……The ground on which the learned Magistrate dismissed the petitioner’s applications, namely, that the car is said to have been used on previous occasions also for smuggling liquor is not a valid ground for refusing to deliver the custody of the vehicle to the petitioner, who is admittedly the owner of the car and who is himself not being prosecuted for smuggling illicit liquor. While on the one hand there is every reason of the vehicle getting damaged if it is retained in the custody of the Court till the cases are disposed of, on the other hand there is no risk involved in delivering custody of the vehicle to the petitioner. If the vehicle is required either for the purpose of identification or if the learned Magistrate ultimately confiscates the vehicle, the petitioner can always be directed to produce the vehicle for that purpose and sufficient security may be taken from him for the production of the vehicle when called upon to do so.”
7. The facts of the case t hand are much better. In this case, learned APP for State conceded that the above-noted vehicle was not used in the earlier three excise cases pending against petitioner’s husband. If the Gypsy remains in police custody during the trial it is likely to get damaged without any useful purpose being served.
For the foregoing reasons, impugned order dated 28th April, 2000 is set aside, Gypsy No. HYN 849 is ordered to be released in favor of its registered owner. Magistrate may release the vehicle on “superdari” (custody) pending final disposal of the case on such terms as it deemed fit and proper so as to ensure production whenever required. Ordered accordingly. Petition stands disposed of.