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2003 DIGILAW 475 (ORI)

SOUBHAGYA KUMAR PANDA v. STATE OF ORISSA

2003-07-25

A.K.PATNAIK, M.PAPANNA

body2003
JUDGMENT : A.K. Patnaik, J. - This Criminal Revision is directed against the order dated 10.1.2003 passed by the learned Sub-Divisional Judicial Magistrate, Anandapur, in G.R. Case No. 437 of 2002 rejecting the prayer of the Petitioner for releasing a motor-cycle u/s 457 of the Code of Criminal Procedure, 1973 (for short, "Code of Criminal Procedure") on the ground that u/s 68(1)(b) of the Bihar and Orissa Excise Act, 1915 (for short, 'the Act'), the Collector and not the Magistrate has the power to release any property which has been seized in connection with an excise offence. The Criminal Revision was initially heard by a learned single Judge when a judgment of a Division Bench of this Court in Rajat Kumar Pattnayak v. State of Orissa, (2003) 24 OCR 426, was brought to the notice of the learned single Judge in which it has been held that the power to release the property seized as liable to confiscation u/s 66 of the Act is vested in the Collector or any Excise Officer specially empowered in that behalf by the State Government and not on the Magistrate. The learned Counsel for the Petitioner, however, argued before the learned single Judge that under the Proviso to Section 66 of the Act, no animal, cart, vessel, raft or other conveyance is liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence and in this case the motor-cycle of the Petitioner was stolen and used by some other persons for the commission of the offence and for this reason, the motor-cycle was not liable to confiscation and the Magistrate could have released the motor-cycle in exercise of his powers u/s 457, Code of Criminal Procedure Before the learned single Judge a decision of the Supreme Court in Sundarbhai Ambala Desai v. State of Gujarat, (2003) 24 OCR (SC) 444, was also cited by the learned Counsel for the Petitioner wherein guidelines have been given by the Supreme Court to the Magistrates for exercise of their powers for release of properties under Sections 451 and 457, Code of Criminal Procedure The learned single Judge in his judgment dated 2.5.2003 held that the matter should be placed before a larger Bench with the permission of the Chief Justice and the Chief Justice has referred this matter to this Division Bench. 2. Mr. 2. Mr. D.P. Dhal, learned Counsel for the Petitioner, submitted that the Proviso to Section 66 of the Act made it abundantly clear that a conveyance shall not be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence. In this case, the charge-sheet has already been filed and it does not disclose that the Petitioner who is the owner of the motor-cycle is implicated in the commission of the offence and for this reason, the Petitioner has not been named as an accused person in the charge-sheet. Mr. Dhal vehemently argued that the motor-cycle of the Petitioner is thus "not liable to confiscation" and the Collector does not have the power to release the motor-cycle and instead the Magistrate has the power u/s 457 of the Code of Criminal Procedure to release the motor-cycle. He further submitted that in Sundarbhai Ambala Desai v. State of Gujarat (supra), the Supreme Court has held that it is of no use to keep a seized vehicle at the police station for a long period and it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for release of the vehicle, if required at any point of time. According to Mr. Dhal, this is a fit case in which the Magistrate should have released the motor-cycle promptly so that it does not deteriorate in quality while in custody of the police. 3. Mr. A. Routray, learned Additional Government Advocate, on the other hand, submitted that the learned Magistrate has held that Section 85 of the Act does not state that the provisions for release of seized articles under the Code of Criminal Procedure are applicable to offences under the Act and has further held that the provisions of Section 68 of the Act provides for release of the seized articles under the Act. According to Mr. Routray, therefore, the view taken by the learned Magistrate that the provisions of Sections 451 and 457 of the Code of Criminal Procedure for release of articles will not apply and it is only the Collector who has the power u/s 68 of the Act to release the articles seized under the Act is correct and this Court should not interfere with the impugned order of the learned Magistrate. 4. 4. We have perused the decision of this Court in the case of Rajat Kumar Pattnayak v. State of Orissa (supra) and we find that in the said decision there was no contention raised that the owner of the vehicle was not implicated in the commission of the offence by the police in the charge-sheet. Hence the question as to whether in such a case where owner of the vehicle is not implicated in the commission of the offence by the police, the Magistrate would have the power u/s 451 or Section 457 of the Code of Criminal Procedure to release a seized vehicle, did not arise for decision. In the said case of Rajat Kumar Pattnayak v. State of Orissa (supra), this Court held that Sub-section (2) of Section 4 of the Code of Criminal Procedure made it clear that all offences under law shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences and Section 5 of the Code of Criminal Procedure further provided that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force and because of these provisions is Section 4 and Section 5 of the Code of Criminal Procedure, the specific provision in Section 68(1)(b) of the Act for release of any property liable for confiscation by the Collector or any Excise Officer empowered in that behalf by the State Government will apply and the provisions of Section 457 of the Code of Criminal Procedure for release of seized vehicle by the Magistrate will not apply to such property liable to confiscation under the Act. 5. 5. In the present case, on the other hand, the case of the Petitioner is that his motor-cycle had been stolen for which he had lodged an FIR before the Officer-in-charge, Sukinda Police Station and Sukinda P.S. Case No. 51 of 2002 had been registered and the said motor-cycle was used by Laxmidhar Jena and Krupasindhu Terei for commission of offence u/s 47(a) of the Act and the said motor-cycle was seized and a charge-sheet was filed not against the Petitioner, the owner of the motor-cycle, but against the said Laxmidhar Jena and Krupasindhu Terei. According to the Petitioner, since as per the case made out by the police in the charge-sheet the owner of the motor-cycle is not implicated in the commission of offence u/s 47(a) of the Act, the motor-cycle is not liable to confiscation and in such a case it is not the Collector who has the power u/s 68(1)(b) to release the motor-cycle but the Magistrate who has the power u/s 457 of the Code of Criminal Procedure to release the said motor-cycle. 6. The relevant portions of Sections 66, 67, 68, 70 and 85 of the Act are quoted herein below: 66. What things are liable to confiscation: (1) Whenever an offence has been committed which is punishable under this Act, the intoxicant, materials, still, utensil, implement and apparatus in respect of or by means of which such offence has been committed shall be liable to confiscation. (2) Any intoxicant lawfully imported, transported, manufactured in possession or sold along with, or in addition to: any intoxicant which is liable to confiscation under Sub-section (1).and the animals, carts, vessels, rafts or other conveyances used in carrying the same, shall likewise be liable to confiscation: Provided that no animal, cart, vessel, raft or other conveyance as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence. 67. Confiscation by Magistrate or Collector: (1) When, in any case tried by him, the Magistrate decides that anything is liable to confiscation u/s 66, he may either order confiscation or give the owner of such thing an option to pay, in lieu of confiscation, such fine as the Magistrate think fit. (2) *** 68. 67. Confiscation by Magistrate or Collector: (1) When, in any case tried by him, the Magistrate decides that anything is liable to confiscation u/s 66, he may either order confiscation or give the owner of such thing an option to pay, in lieu of confiscation, such fine as the Magistrate think fit. (2) *** 68. Power to compound offences and to release property liable to confiscation: (1) The Collector or any Excise Officer specially empowered by the State Government in this behalf, not below the rank of Deputy Collector or Superintendent of Excise: (a) *** (b) in any case in which any property has been seized as being liable to confiscation u/s 66, may, at any time before the Magistrate has passed an order u/s 67, Sub-section (1), release the property on payment of any sum not exceeding the value thereof as estimated by the Collector or such Excise Officer. (2) *** 70. Power to arrest without warrant, to seize articles liable to confiscation and to make searches: Any of the following persons, namely,- (a) any officer of the Excise, Police, Salt, Customs or Land-revenue Department, or (b) any person empowered may, subject to any restrictions prescribed by the State Government by rule made u/s 89: (i) *** (ii) seize and detain any article which he has reason to believe to be liable to confiscation, under this act or any other law for the time being in force relating to the excise-revenue; and (iii) *** 85. Application of certain provisions of the Code of Criminal Procedure, 1898: (1) Save as in this Act otherwise expressly provided, the provisions of the Code of Criminal Procedure, v. of 1889, relating to arrests, detentions in custody, searches, summonses, warrants of arrest, search warrants and the production of persons arrested shall apply, so far as may be, to arrests, detentions and searches made, summonses and warrants issued, and the production of persons arrested under this Act. (2) and (3) *** 7. It will be clear from the provisions of Section 66 quoted above that not only the intoxicant being transported in a conveyance is liable to confiscation but also the conveyance used in carrying the same is liable to confiscation u/s 66 of the Act. (2) and (3) *** 7. It will be clear from the provisions of Section 66 quoted above that not only the intoxicant being transported in a conveyance is liable to confiscation but also the conveyance used in carrying the same is liable to confiscation u/s 66 of the Act. But the Proviso to Section 66 quoted above shows that unless the owner of the conveyance is proved to have been implicated in the commission of the offence, the conveyance even though used in carrying the intoxicant will not be liable to confiscation. Relevant portion of Section 70 of the Act quoted above would further show that any of the officers named therein including a police officer may seize and detain any article "which he has reason to believe to be liable to confiscation "under the Act or any other law for the time being in force relating to the excise-revenue. Where therefore a conveyance such as a motor-cycle is used in carrying an intoxicant but the police has the reason to believe that the owner of the conveyance is not implicated in the commission of the offence, such a conveyance is not liable to confiscation and the seizure is not under the said provision of Section 70 of the Act of an article liable to confiscation u/s 66 of the Act. A plain reading of Section 68(1)(b) shows that it is only in a case in which a property has been seized as being liable to confiscation u/s 66 that the Collector or any Excise Officer specially empowered by the State Government in that behalf can release the said property any time before the Magistrate passes an order u/s 67(1). Thus, if a conveyance such as a motor-cycle is not liable to confiscation u/s 66 on account of the fact that according to investigation made by the police, the owner of the conveyance is not implicated in the commission of the offence, the Collector will have no power to pass orders for release of such conveyance as the same is not liable to confiscation u/s 66. Relevant portion of Section 85 of the Act quoted above shows that the provisions of the Code of Criminal Procedure relating to arrests, detentions in custody, searches, summonses, warrants of arrest, search warrants and the production of persons arrested shall apply, as far as may be, to arrests, detentions and searches made, summonses and warrants issued, and the production of persons arrested under the Act. But this is not to say that no other provision of the Code of Criminal Procedure will apply to inquiry and trials in respect of the offences under the Act. Sections 4 and 5 of the Code of Criminal Procedure are quoted herein below: 4. Trial of offences under the Indian penal Code and other laws: (1) All Offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 8. A plain reading of Sub-section (2) of Section 4 of the Code of Criminal Procedure makes it clear that all offences under any law other than the Indian Penal Code, shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Code of Criminal Procedure quoted above, however, provides that nothing in the Code of Criminal Procedure shall, in the absence of any specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Thus, the provisions of the Code of Criminal Procedure relating to investigation, inquiry, trial, etc. also apply to offences under the Act subject to special provisions made in the Act. Conversely, the provisions of the Act including provisions vesting special jurisdiction or power will override the general provisions in the Code of Criminal Procedure in the absence of specific provisions to the contrary. But if the provisions of the Act do not make any specific provision or do not vest any special jurisdiction or power or lay down any special form of procedure, the general provisions of the Code of Criminal Procedure including jurisdiction and powers vested in the Magistrate will apply even to offences under the Act. Since the power of the Collector or the Excise Officer to release a property pending final orders by the Magistrate u/s 67(1) of the Act is confined to only property seized as liable to confiscation u/s 66 of the Act and does not extend to the property which is not seized as liable to confiscation, the Magistrate will have the powers under Sections 451 and 457 of the Code of Criminal Procedure to deal with such property not liable to confiscation in the manner indicated in the said provisions of Sections 451 and 457 of the Code of Criminal Procedure 9. For the aforesaid reasons, we quash the impugned order dated 10.1.2003 passed by the learned Sub-Divisional Judicial Magistrate, Anandapur, in G.R. Case No. 437 of 2002 and direct that the learned Sub-Divisional Judicial Magistrate will apply his mind to the charge-sheet and other materials filed by the police and if he finds that according to the case of the police the owner of the motor-cycle is not implicated in the commission of the offence, will pass orders for release of the motor-cycle subject to such terms and conditions as he may deem fit and proper u/s 457 of the Code of Criminal Procedure On the other hand, if the learned Magistrate finds that the charge-sheet and the police papers reveal that the owner of the motor-cycle is implicated in the commission of the offence, he will not release the said motor-cycle u/s 457 of the Code of Criminal Procedure and the Petitioner may move the Collector or the Excise Officer authorized in that behalf u/s 68(1)(b) of the Act for release of the motor-cycle pending final orders to be passed by the Magistrate u/s 67(1) of the Act. 10.. The Criminal Revision accordingly stands disposed of. M. Papanna, J. 11. I agree. 12. Criminal Revision Accordingly.