JUDGMENT : M.M. Das, J. - Petitioner in this writ application challenges the order dated 8.12.2003 passed by the S.D. J.M., Kamakhyanagar in 2(a)CC No. 97 of 2003 and the order dated 29.9.2003 passed by the Superintendent of Excise, Dhenkanal, under Annexures - 2 and 3 to the writ application. 2. Petitioner's case in brief is that on 27.7.2003 the Sub-Inspector of Excise, Mobile Squad, Dhenkanal seized Mahua flowers from the asbestos house owned by the Petitioner, weighing about 440.70 Kgs. On the seizure of the mahua flowers, 2(a)CC No. 97 of 2003 was registered in the Court of the S.D. J.M., Kamakhyanagar. By order dated 8.9.2003 the learned S.D. J.M., Kamakhyanagar, on the application of the Sub-Inspector of Excise, Mobile Squad, Dhenkanal praying for early disposal of the seized mahua flowers, held that it has no power to pass order in respect of the seized properties at a stage when prosecution report had not been submitted and rejected the said petition. 3. The Superintendent of Excise, Dhenkanal, thereafter passed an order on 29.9.2003 that mahua flowers weighing 440.70 Kgs., seized from the possession of the Petitioner and the mahua flowers weighing 159.70 Kg., seized from the house of one Raj Kishore Sahoo are confiscated to the State of Orissa u/s 67 of the Bihar & Orissa Excise Act, 1915 and further directed that the said seized Mahua flowers totaling 600.40 Kgs. shall be put to auction. 4. Petitioner has contended that the learned S.D.J.M., Kamakhyanagar, committed an illegality in refusing to exercise power u/s 457, Code of Criminal Procedure for releasing the seized goods. He has also challenged the action of seizure on the ground that his son Naba Kishore Sahoo had a valid licence for storage/possession and sale of mahua flowers and the Petitioner was acting as an agent of his son when he stored mahua flowers in his house to save the same from decomposition due to inclement weather conditions. 5. With regard to the order of confiscation dated 29.9.2003 passed by the Superintendent of Excise, Dhenkanal under Annexure-3, Mr. 5. With regard to the order of confiscation dated 29.9.2003 passed by the Superintendent of Excise, Dhenkanal under Annexure-3, Mr. Palit, learned Counsel for the Petitioner submitted that Section 67(2) of the Act clearly forbids the Collector to pass any order in cases where the accused person is known and further u/s 68(b) of the Act it is clearly stipulated that before an order has been passed by the Magistrate u/s 67(1) of the Act, the Collector has power to release the property on payment of any sum not exceeding the value thereof as estimated by the Collector or such Excise Officer and that Section 68(2) of the Act provides that after such payment has been made, further proceedings shall be dropped against such person or property. 6. Mr. Palit further contended that in view of the above provisions of the Act it was mandatory for the Collector to have estimated the value of the properties and to have allowed the Petitioner to purchase the same at such estimated value. It is also submitted by him that the action of the authority in debarring the Petitioner from taking part in the auction is discriminatory and arbitrary. 7. With regard to the submission that once the Magistrate is in seisin of the matter, the Collector does not have requisite power to pass orders for sale of seized property, it will be seen from the decision reported in Rajat Kumar Pattnayak Vs. State of Orissa, where a Division Bench of this Court while interpreting Sections 66 and 67 of the Act has held as follows: A reading of Section 68(1)(b) of the Bihar and Orissa Excise Act shows that the Collector or any Excise Officer so empowered in any case in which any property has been seized is 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. Thus, the power to release the property seized as being liable to confiscation u/s 67 of the Bihar and Orissa Excise Act is vested in the Collector or any Excise Officer and not on the Magistrate...... Section 67 of the Act provides as follows: 67. Thus, the power to release the property seized as being liable to confiscation u/s 67 of the Bihar and Orissa Excise Act is vested in the Collector or any Excise Officer and not on the Magistrate...... Section 67 of the Act provides as follows: 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 thinks fit. (2) Whenever anything is liable to confiscation u/s 66, and the offender or the person entitled to possession is not known or cannot be found, the case shall be inquired into and determined by the Collector, who may order confiscation: Provided that no such order shall be made until the expiration of one month from the date of seizing the thing intended to be confiscated or without hearing any person who may claim any right thereto and the evidence (if any) which he produces in support of his claim: Provided further that if the thing in question is liable to speedy and natural decay, or if the Collector is of opinion that its sale would be for the benefit of its owner, the Collector may at any time direct it to be sold; and the provisions of this Sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale. 8. From the above provision it is clear that when a case is tried by a Magistrate and he decides that the seized articles/goods are liable to confiscation u/s 66 of the Act he may either order confiscation or give the owner of such goods an option to pay such fine in lieu of confiscation as he thinks fit only at the end of trial in the final judgment under the second proviso, however, when seized goods are liable to speedy and natural decay or if the Collector is of the opinion that its sale would be for the benefit of its owner, he amy at any time direct the seized goods to be put to sell. 9. 9. Thus applying the ratio of the decision in the case of Rajat Kumar Pattnayak v. State of Orissa (supra) and the provision of Section 67 of the Act we find that the Magistrate was right in holding that the power to release the property seized or to pass appropriate order when the said property is liable to speedy and natural decay, is vested in the Collector or any competent Excise Officer and not on the Magistrate. It is further clear from the facts of this case that no prayer was made by the Petitioner before the Magistrate for release of the seized mahua flowers. We are, therefore, not inclined to accept the submissions raised by the Petitioner that the order of the Magistrate under Annexure-2 is illegal and erroneous and we decline to quash the said order under Annexure-2. 10. It is stated in the counter affidavit filed by the Opp. Parties that since the seized mahua flowers were subject to speedy and natural decay, the Superintendent of Excise has rightly passed the order of confiscation under Annexure-3 and has acted with propriety in putting the said mahua flowers to public auction. It is also contended by the learned Additional Government Advocate that pursuant to the interim order passed by this Court in the present case, the Petitioner was allowed to take part in the public auction, but since he was not the highest bidder the auction was knocked down in favour of the highest bidder and consideration money so received amounting to Rs. 2,42,385/- has been kept in the State Bank of India, Dhenkanal Branch, Dhenkanal. 11. Learned Counsel for the Petitioner is ad idem with the learned Additional Government Advocate that mahua flowers are perishable goods subject to speedy and natural decay. 12. In view of the above position, the Superintendent of Excise was within his jurisdiction in putting the seized mahua flowers to auction sale as per the second proviso to Section 67(2) of the Act and in view of the admitted position that the seized mahua flowers have in sold in public auction, there was no scope for either the Collector or the Superintendent of Excise to apply the provision of Section 68(b) of the Act to the facts of the present case. Further, as the criminal case bearing 2(a)CC No. 97 of 2003 u/s 47 of the Act is pending disposal before the Magistrate, it is open for the Magistrate to deal with the entitlement of the Petitioner to the sale proceeds of the seized mahua flowers which has been sold by public auction, in the final judgment to be passed by the Magistrate in the said criminal case. 13. We are, therefore, not inclined to interfere with the order of confiscation (Annexure-3) but we direct the opp. parties to set apart the sell price of the mahua flower which was seized from the Petitioner and entitlement to the said sale price will be dealt with by the Magistrate in the final order to be passed in 2(a)CC No. 97 of 2003. The writ application is disposed accordingly. P.K. Tripathy, J. 14. I agree.