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2011 DIGILAW 10 (ORI)

Haria @ Harish Chandra Sahoo v. State of Orissa

2011-01-07

I.MAHANTY

body2011
ORDER 07.01.2011 — Heard Mr. Das, learned counsel for the petitioner and learned counsel for the State. In this application under Section 482 Cr.P.C., the petitioner has sought to challenge the order dated 21.08.2010 passed by the learned Addl. Sessions Judge, FTC-II, Bhadrak in Crl. Revn. No. 39 of 2010 rejecting the petition filed by the Petitioner under Section 457 Cr.P.C. for release of the Motor Cycle on the ground that the petitioner is an accused and the seized motor cycle is subject to confiscation. It appears from the record that the motor cycle in question was seized and the petitioner was arrested in connection with Bhadrak P.S. Case No. 84 of 2010, corresponding to C.T. Case No. 585 of 2010, pending before the learned S.D.J.M., Bhadrak for commission of offence under Section 47(a) of the Bihar & Orissa Excise Act and after completion of investigation, police has submitted charge sheet against the petitioner. Learned counsel for the petitioner asserts that the seizure list would indicate that from the custody of the petitioner three bottles of beer each containing 650 ML, four bottles of Rum each containing 180 ML, six bottles of Rum each containing 180 ML and eight bottles of Whisky (IMFL) each containing 180 ML, in total 1.950 litres of Beer and 3.240 litres of IMFL liquor were seized. It is further alleged that all the bottles were seized and kept in a plastic bag. In course of hearing, learned State counsel was called upon to bring to the notice of the Court the Notification, if any, fixing any limit for possession of IMFL/beer. Pursuant to such direction, learned Addl. Government Advocate has brought to the notice of the Court the Notification issued by the Board of Revenue under the provisions of the Bihar & Orissa Excise Act, 1915 published in Orissa Gazette Extraordinary No. 1703 dated 15.11.1965 whereby it was declared that under sub-section (1) of Section 5 of the Bihar & Orissa Excise Act, the quantities specified in Column (3) of the table be the limit of retail sale in respect of intoxicants mentioned in column (2) and of localities and class of purchasers specified in column (1). From the said Notification it appears that a quantity of 6.75 litres of Wine and Spirit and 19.5 litres of Beer is permissible for retail sale. From the said Notification it appears that a quantity of 6.75 litres of Wine and Spirit and 19.5 litres of Beer is permissible for retail sale. On perusal of the said notification, I am of the view that the quantity of liquor seized from the petitioner is within the limit prescribed in the aforesaid Notification and no offence under the Bihar & Orissa Excise Act is made out. In view of the above, the order dated 30.7.2010 passed in C.T. Case No.585 of 2010 and the order dated 21.8.2010 passed in Crl. Revn. No. 39 of 2010 are quashed. The vehicle in question seized from the petitioner be released in his favour on proper identification on such terms and conditions as would be fixed by the learned S.D.J.M., Bhadrak. The CRLMC is allowed. Urgent certified copy of this order be granted on proper application. CRLMC allowed.