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2019 DIGILAW 5 (ORI)

Ghasana Mahapatra v. State of Orissa

2019-01-04

S.K.MISHRA

body2019
JUDGMENT S.K. MISHRA, J. - The petitioner, in this application under Section 482 of Cr.P.C. has assailed the order passed by the learned S.D.J.M., Boudh on 29.03.2018 in Misc. Case No.17 of 2018 arising out of 2 (a) C.C. No.14 of 2018 thereby rejecting application filed by the petitioner under Section 457 of Cr.P.C. seeking the interim release of vehicle bearing Registration No.OD-27-8277 in favour of the petitioner, who happens to be the owner of the vehicle. 2. It is alleged by the prosecution that on 13.03.2018 the Sub-Inspector of Excise, Harbhanga arrested one Jitendra Kumar Mishra, who is driver of the vehicle and recovered 24 liters of Beer and 8,640 liters of I.M.F.L kept in a paper cartoons and a case under Section 52 (a) (i) of the Odisha Excise Act, 2008 was initiated. The Sub-Inspector of “Excise also seized the aforesaid vehicle. The seized vehicle is in the custody of the said officer. 3. It is claimed by the petitioner that he being the owner of the vehicle had no idea of the alleged crime. The owner is neither arrayed as an accused nor allegation has been levelled against her by the Excise Department in the prosecution report submitted. 4. It is also argued by the learned counsel for the petitioner that the vehicle is kept in open condition and it may be decayed due to vagaries of nature and unless it is left in zima of the present petitioner, the vehicle will be damaged and it will be against the ratio decided by the Hon’ble Supreme Court in the case of Sundarbhai Ambala Desai Vs. State of Gujurat, (2003) 24 OCR (SC) 444. The Hon’ble Supreme Court in very clear term has laid down that the vehicle seized by the investigating Agency like Police should not be kept in open space in Police Station premises, which may be exposed to rain and sun. Therefore, directions were issued that such application shall be disposed of as expeditiously as possible. 5. The learned Counsel for the petitioner, Mr. Panda developing his argument relying upon the reported case of Sk. Nur Hosen Vs. Therefore, directions were issued that such application shall be disposed of as expeditiously as possible. 5. The learned Counsel for the petitioner, Mr. Panda developing his argument relying upon the reported case of Sk. Nur Hosen Vs. State of Orissa, 2014 (Supplementary-I) OLR 569, wherein this Court, a case involving alleged violation of the provisions of the Bihar and Orissa Excise Act, 1915 was considered land taking into consideration and relying upon the judgment of the Division Bench of this Court in the case of Soubhagya Kumar Panda Vs. State of Orissa (2003) 25 OCR 840, held that the provision of Section 66 of the Bihar and Orissa Excise Act 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, in the meantime, the Orissa Excise Act, 2008 has come into force with effect from 1st April, 2017 and the present case arises out of a criminal proceeding for punishable under Section 52 of the Orissa Excise Act, 2008. The Orissa Excise Act was passed by the Assembly in the year, 2008. Section 1 of the said Act provides that it shall come into force on such date as the State Government may by notification, appoint and the State Government published it in the Official Gazette on 10.03.2017 i.e. almost after nine years of the Assembly passing the Act. The law relating to confiscation and interim release of vehicle has been made stringent. It is appropriate to take note of Section 71 of the Orissa Excise Act, it reads as follows : “Seizure of property liable to confiscation - (1) (a) When there is reason to believe that any offence under this Act has been committed, the intoxicant, materials, stills, utensils, implements, apparatus, receptacles, package, coverings, animals, carts, vessels, rafts, vehicles, or any other conveyances or articles or materials used in committing any such offence may be seized by the Collector or any officer of the Excise, Police, Customs or Revenue Departments. (b) any intoxicant lawfully imported, transported, manufactured in possession or sold along with, or in addition to any intoxicant which is liable to seizure under Clause (a) and the receptacles, packages and covering in which any such intoxicants as aforesaid, or any such materials, stills, utensil, implement or apparatus as aforesaid, is found and the other contents, if any, of such receptacles or packages, and the animals carts, vessels, rafts, vehicles or other conveyances used in carrying the same, shall likewise be liable to seizure. (2) Every officer seizing any property under the section shall, except where the offender agrees in writing to get the offence compounded under Section 75, produce the property seized before the Collector, or an officer, not below the rank of a Superintendent of Excise, authorized by the State Government in this behalf by notification (hereinafter referred to as the ‘authorised officer’) Xxx xxx xxx xxx 6. A plain reading of the said provision reveals that the Sub-section (2) provide that the Officer seizing any property under Section 71 of the Orissa Excise Act shall except where the offender agrees in writing to get the offence compounded under Section 75 produce the property seized before the Collector, or an authorized officer, not below the rank of a Superintendent of Excise, authorized by the State Government in this behalf by notification (hereinafter referred to as the ‘authorised officer’. 7. Sub-section (3) provided that whether the Collector, or the authorized officer seized any property under Sub-section (1) or where the property seized is produced before him under Sub-section (2) and he is satisfied that an offence under this Act has been committed in respect thereof, he shall without prejudice to any other punishment to which the offender is liable under this Act, order confiscation of the property so seized or produced together with all other materials, article, vehicles or conveyances used in committing such offences, whether or not a prosecution instituted for the commission of such an offence. The Sub-section 4 provides for the process of confiscation and the principles of natural justice have been enshrined in it in view of the fact that notice has to be given and reasonable of opportunity of being heard should be given. The Sub-section 4 provides for the process of confiscation and the principles of natural justice have been enshrined in it in view of the fact that notice has to be given and reasonable of opportunity of being heard should be given. The Sub-section (5) provides that without prejudice to the provisions of Sub-section (4), no order of confiscation under Sub-section (3) of any articles, materials, vehicles or conveyances shall be made if the owner thereof proves to the satisfaction of the Collector or the authorized officer, as the case may be, that it was used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of such property, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use. The proviso to Sub-section (7) laid down that the seized property shall not be released during the pendency of the confiscation proceedings even on the application of the owner of the property. So, the law has become very stringent even with regard to the confiscation of property and incorporating a bar for interim release of the vehicle etc. during the pendency of the confiscation proceeding. The learned Additional Standing Counsel very vehemently opposes the contention raised by the learned Counsel for the petitioner and submits that there is a specific bar under Section 72 of the Orissa Excise Act from entertaining an application, where the confiscation proceeding is pending. Hence, in view of the provisions there is hardly any scope for this Court to interfere in the matter. 8. However, perusal of the order reveals that the learned S.D.J.M., Boudh has rejected the petition only on the ground that Section 72 of the Orissa Excise Act bars the criminal court from entertaining the petition. It was not ascertained by him whether actually the vehicle has been produced before the learned Collector or the Authorized Officer and a confiscation proceeding has been started. The law is very well settled that whenever valuable property like vehicle is seized then it should be produced before the officer, so authorized in this case. Collector or Authorized Officer duly notified, should be produced within a reasonable time and confiscation proceeding should be started. The law is very well settled that whenever valuable property like vehicle is seized then it should be produced before the officer, so authorized in this case. Collector or Authorized Officer duly notified, should be produced within a reasonable time and confiscation proceeding should be started. Since right to property under Article 300-A of the Constitution of India is a legal right, though it is not a fundamental right, it is incumbent on the part of the Government Functionary to see that the confiscation proceeding is taken up as early as possible, especially, when there is a protection given to the innocent owner of the vehicle etc. 9. In a case involving provision of Narcotic Drugs and Psychotropic Substances Act, 1985, a Bench of this Court having taking into consideration various judgments of this Court, in the case of Kishore Kumar Choudhury Vrs. State of Orissa, (2017) 66 OCR 1124, has allowed interim release of vehicle seized. So, in that view of the matter, the CRLMC is allowed in part. The order dated 29.03.2018 passed by the learned S.D.J.M., Boudh rejecting the application is hereby set aside and the matter is remanded back to the lower Court for fresh hearing. The learned S.D.J.M., Boudh shall first call for a report from the Investigating Agency whether the vehicle has been produced before the learned Collector, Boudh or the designated Authorized Officer within a reasonable time and whether a confiscation proceeding has been initiated. If within a month, vehicle is not produced before the learned Collector or Authorized Officer and the confiscation proceeding is not completed within a reasonable period of three months from appearance of the owner of the vehicle after receiving notice as envisaged under Sub-section (4) and Section 71 of the Orissa Excise Act, then in-spite of proviso to Sub-section (7), the criminal courts shall have jurisdiction to entertain the application under Sections 451 and 457 of the Cr.P.C. and pass appropriate orders. But it is confined to cases where the owner of the vehicle is not an accused. With such observation, the CRLMC is disposed of. CRLMC disposed of.