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2014 DIGILAW 66 (ORI)

Sk. Nur Hosen v. State of Orissa

2014-01-24

S.K.MISHRA

body2014
JUDGMENT S.K. MISHRA, J. : This application is filed by the petitioner assailing the order dated 8.11.2013 passed by the learned Sessions Judge, Kendrapara in Criminal Revision No.20/2013. The revision application was filed under Sections 399 and 401 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for brevity). Section 399 of the Code provides for the Sessions Judge’s power revision. Section 397 of the Code provides for the power to call for records to exercise of power by the High Court and the Court of Session. So the initial question that arose wether Sub-section (3) of Section 397 is a bar for a second application by the petitioner. Sub-section (3) of Section 397 of the Code provides that if an application under Section 397 of the Code has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. Thus, there is a bar regarding a second application against the order passed by learned Sessions Judge. 2.However, in course of hearing learned counsel for the relied upon the case of Krishnan and another v. Krishnaveni and another; (1997) 13 OCR (SC)-41. At paragraph-10 the Supreme Court has held that when revision has been barred by Section 397(3) of the Code a person-accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. The Supreme Court has further held that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. 3.It is seen that the petitioner was found to be transporting I.D. Liquor which is punishable under Section 47(a) of the Bihar and Orissa excise Act. The petitioner thereafter filed an application before the learned J.M.F.C., Aul in G.R. Case No.240/2013 to release the said vehicle. The vehicle was not released. The application was rejected by the learned J.M.F.C., Aul. The petitioner preferred a revision application before the learned Sessions Judge, Kendrapara, who as per the judgment dated 8.11.2013, on a careful analysis of the documents, rejecting the application. 4.In this case, on the face of record, it cannot be said that there has been a grave miscarriage of justice or abuse of the process of the Court or the required statutory procedure was not complied with. There is hardly any scope of interfering with the judgment passed by learned Sessions Judge, Kendrapara. 5.Before parting with this case, this Court takes note of the fact that the learned Sessions Judge held that the learned Single Judge in Soubhagya Kumar Panda v. State of Orissa; (2003) 25 OCR-449 has referred the matter to the Larger Bench. So in view of the provisions of the OLR Act for confiscation of the seized vehicle in question can be released by the Magistrate exercising jurisdiction under Section 457 of the Code remains res integra. This is erroneous. In fact in the case of Rajat Kumar Pattanayak v. State of Orissa (2003) 24 OCR-426, a Division Bench of this Court having taken into consideration the provision of Section 68 of the Bihar and Orissa Excise Act has held that the Collector or any Excise Officer so empowered in any case in which any property has been seized is liable to confiscation under Section 66 may at any time before the Magistrate has passed an order under Section 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. The Division Bench further held that thus, the power to release the property seized as being liable to confiscation under Section 76 of the Bihar and Orissa Excise Act is vested in the Collector or any Excise Officer and not on the Magistrate because the Collector and such other Excise Officer have been empowered to release the property on payment of any sum not exceeding the value thereof as estimated by the Collector or such Excise Officer. The Division Bench further held that in view of said special provision in Section 68 of the Bihar and Orissa Excise Act empowering the Collector or Excise Officer to release the property seized as being liable to confiscation under Section 66 of the said Bihar and Orissa Excise Act, the Magistrate obviously has no power under Section 457 of the Code to release the property which is seized as being liable to confiscation under Section 66 of the Bihar and Orissa Excise Act. 6.Learned Single Judge in the case of Soubhagya Kumar Panda v. State of Orissa; (2003) 25 OCR-449 took into consideration the proviso to Sub-section (2) of Section 66, which 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 commission of the offence. Since this aspect was not discussed by the Division Bench in the case Rajat Kumar Pattnayak v. State of Orissa (supra), the learned Single Judge referred the matter to the Division Bench. 7.The Division Bench in the case of Soubhagya Kumar Panda v. State of Orissa; (2003) 25 OCR-840 has answered the reference made by the learned Single Judge. Taking into consideration the provision of Section 66 of the Bihar and Orissa Excise Act especially the proviso to Sub-section (2) of Section 66, the Division Bench has held that it will be clear from the provisions of Section 66 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 under Section 66 of the Act. However, the Division Bench further held that the proviso to Section 66 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. However, the Division Bench further held that the proviso to Section 66 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. The Division Bench further held that Section 70 of the Act further shows 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. The Division Bench further held that where 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 under Section 66 of the Act. The Division Bench further held that 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 under Section 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 under Section 67(1). Thus, if a conveyance such as a motor cycle is not liable to confiscation under Section 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 under Section 66. Relevant portion of Section 85 of the Act shows that the provisions of the Code 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 arrest, detentions and searches made, summons and warrants issued, and the production of persons arrested under the Act. Relevant portion of Section 85 of the Act shows that the provisions of the Code 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 arrest, detentions and searches made, summons and warrants issued, and the production of persons arrested under the Act. The Division Bench further held that but this is not to say that no other provision of the Code will apply to inquiry and trials in respect of the offences under the Act. 8.In Soubhagya Kumar Panda’s case the Division Bench further held that a plain reading of Sub-section (2) of Section 4 of the Code 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, but subject to any enactment for the time being in force regulating the matter or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Code, however, provides that nothing in the Code 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 or procedure prescribed, by any other law or the time being in force. The Division Bench further held that the provisions of the Code relating to investigation, inquiry, trial, etc. also apply to offences under the Act subject to special provisions made in the Act. Conversely, it is further held that the provisions of the Act including provisions vesting special jurisdiction or power will override the general provisions in the Code 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 or procedure, the general provisions of the Code including jurisdiction and powers vested in the Magistrate will apply even to offences under the Act. 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 or procedure, the general provisions of the Code including jurisdiction and powers vested in the Magistrate will apply even to offences under the Act. The Division Bench further held that since the power of the Collector or the Excise Officer to release a property pending final orders by the Magistrate under Section 67(1) of the Act is confined to only property seized as liable to confiscation under Section 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 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. 9.Thus, a reading of all three decisions cited above, this Court comes to the conclusion that when a vehicle is seized under Section 66 of the Code and the owner is arrayed as an accused in commission of the offence under the provisions of the Bihar and Orissa Excise Act, then the magistrate will have no jurisdiction to order for release of the vehicle in favour of the owner. On the contrary, if the owner of the vehicle is not charge sheeted or arrayed as an accused in the case for an alleged violation of the provisions of the Bihar and Orissa Excise Act, then the Magistrate shall have jurisdiction under Section 451 and 457 of the Code to pass appropriate orders for release of the vehicle in question. 10.In this case, it is seen that the petitioner is an accused in Rajkanika P.S. Case No.106 of 2013 for the alleged offence under Section 47(a) of the Bihar and Orissa Excise Act. The Magistrate has no jurisdiction to order for interim release of the vehicle in his favour. 11.In that view of the matter, this Court comes to the conclusion that the order passed by the learned Sessions Judge requires no interference. With such observation, the CRLMC is dismissed. CRLMC dismissed.