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2008 DIGILAW 820 (ORI)

SRI RAJKISHORE DAS @ BAIDHAR v. STATE OF ORISSA

2008-09-10

PRADIP MOHANTY

body2008
JUDGMENT : Pradip Mohanty, J. - Heard Mr. Mishra, Learned Counsel for the Petitioner, and Mr. Pattnaik, Learned Addl. Government Advocate. 2. This criminal revision is directed against the Order Dated 02.06.2008 passed by the Learned J.M.F.C., Jajpur Road in Crl. Misc. Case No. 52 of 2008 arising out of G.R. Case No. 328 of 2008 rejecting the application of the Petitioner filed u/s 457 Code of Criminal Procedure for release of his vehicle. 3. Learned Counsel for the Petitioner submits that the Petitioner is the registered owner of the vehicle (Motorcycle) bearing registration number OR-05-Y-8519. The said vehicle was seized in connection with commission of offence u/s 47(a) of the Bihar & Orissa Excise Act. The factum of its seizure was intimated to the JMFC. No confiscation proceeding was initiated against the vehicle till 02.06.2008. when Petitioner's application filed u/s 457 Code of Criminal Procedure was considered and rejected. The owner of the vehicle, namely, the Petitioner, is implicated in the commission of the offence in connection with which the vehicle has been seized. The vehicle is lying in the premises of the Korai P.S. being exposed to vagaries of weather condition and its condition is determining day by day. No fruitful purpose would be served, if the vehicle is detained any further. Therefore, in the interest of justice, the vehicle may be released pending disposal of the criminal proceeding. In support of his submission, he relies on the decision in Sunderbhai Ambala Desai v. State of Gujarat, (2003) 24 OCR (SC) 444; Soubhagya Kumar Panda v. State of Orissa, (2003) 24 OCR 840; and Nabakishore Sahoo v. State of Orissa, (2004) 29 OCR 683 : 2004 (II) OLR 556 . 4. Mr. Pattnaik, Learned Addl. Government Advocate, vehemently opposes the prayer on the ground that since the vehicle is involved in an offence u/s 47(a) of the Bihar and Orissa Excise Act, it is liable to be confiscated u/s 66 of the said Act and, therefore, the Learned Magistrate has rightly rejected the prayer for release of the vehicle. 5. Perused the records, provisions of Chapter-XXXIV of the Code of Criminal Procedure, Sections 66 to 69 of Chapter-VIII and IX of the Bihar and Orissa Excise Act and the decisions cited by the Counsel for the Petitioner. 5. Perused the records, provisions of Chapter-XXXIV of the Code of Criminal Procedure, Sections 66 to 69 of Chapter-VIII and IX of the Bihar and Orissa Excise Act and the decisions cited by the Counsel for the Petitioner. This Court directs the Petitioner to file a fresh application for interim release of the vehicle in question before the Learned Magistrate within three weeks hence and in such event the Learned Magistrate may release the same keeping in mind the ratio decided in Sunderbhai Ambala Desai, Soubhagya Kumar Panda and Nabakishore Sahoo (supra) on such terms and conditions as he may deem just and proper along with some cash security, after verifying the fact that (i) the factum of seizure was intimated to him; (ii) no confiscation proceeding was initiated till 02.06.2008, i.e., the date on which the application for interim release was rejected by him; and (iii) the Petitioner is the registered owner of the vehicle. 6. The CRLREV is accordingly disposed of. Urgent certified copy of the order be granted as per rules.