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2019 DIGILAW 505 (ORI)

Kalpana Sahoo v. State of Odisha

2019-08-05

S.PUJAHARI

body2019
JUDGMENT : S. Pujahari, J. 1. The issue involved being common to both these cases, both of them on being heard, are disposed of by the common judgment as follows:- One Aviator Moped bearing registration No. OD-05-S-4907 owned by the petitioner in CRLMC No.123 of 2019 and one Autorickshaw bearing registration No. OD-17-H-5952 owned by the petitioner in CRLMC No.197 of 2019,-have been reportedly seized respectively in connection with Excise P.R. No.20 of 2018-19 of Mobile-II, Excise Station, Cuttack corresponding to 2(a) C.C. Case No.179 of 2018 in the court of the J.M.F.C.(R), Cuttack and Burla P.S. Case No. 105 of 2018 corresponding to G.R. Case No. 795 of 2018 in the court of the S.D.J.M., Sambalpur. Both the cases before the Courts below have been registered under Section 52(a) of the Orissa Excise Act, and the vehicles named above are alleged to have been used as conveyance for illegal transportation of liquor. There is no dispute on record that the petitioners are the registered owners of the respective vehicles, and they have not been made accused in the concerned cases for commission of offence in question. The petitioners approached the' concerned Magistrates with applications under Sections 457 of Cr.P.C. for release of their respective seized vehicles, and as their applications stood rejected at that level, they approached the concerned Sessions Judges by invoking their revisional jurisdiction. Criminal Revision No. 24 of 2018 filed by the present petitioner in CRLMC No. 197 of 2019 before the learned Sessions Judge, Sambalpur was dismissed on 13.08.2018 and Criminal Revision No. 77 of 2018 filed by the present petitioner in CRLMC No. 123 of 2019 before the learned Sessions Judge, Cuttack was dismissed as per the order dated 18.12.2018. The aforesaid orders of rejection of the petitions under Section 457 of Cr.P.C. as well as the orders of the concerned Sessions Judge in Criminal Revisions affirming the said orders are now sought to be set-aside by the respective petitioners by invoking the power of this Court under Section 482 of Cr.P.C. 2. I have heard the respective learned counsel appearing for the petitioners in both the cases and the learned Government Advocate, and perused the impugned orders. 3. As already noted, undisputedly, the petitioners are the registered owners of Aviator Moped and Autorickshaw referred to above, and there is no indictment against them under the Orissa Excise Act, 2008 (for short "the Act"). 3. As already noted, undisputedly, the petitioners are the registered owners of Aviator Moped and Autorickshaw referred to above, and there is no indictment against them under the Orissa Excise Act, 2008 (for short "the Act"). But, for the reported engagement of those vehicles in the alleged commission of offence under the Act, the seizures have been made by the Excise Officer or the Police Officer, as the case may be, purportedly under Section 71 of the Act. As the impugned orders show, the learned Magistrates have declined to entertain the applications under Section 457 of Cr.P.C. in view of the provisions of Sections 71 and 72 of the Act, and especially, the bar as contemplated under Section 72 of the Act. Those orders were affirmed by the concerned learned Sessions Judges. For sake of ready reference, the relevant parts of Sections 71 and 72 of the Act are extracted here below:- "71. 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) ................... (2) Every officer seizing any property under this 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 'authorized officer'). (3) Where 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, articles, vehicles or conveyances used in committing such offences, whether or not a prosecution is instituted for the commission of such an offence. (4) xxxxx xxxxxx (5) 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. xxxx xxxxx xxxxx" 72. Bar of other proceedings during pendency of confiscation proceedings - Notwithstanding anything contained in the Code of Criminal Procedure 2 of 1974, when the Collector or the authorized officer or the appellate authority is seized with the matter of confiscation of any seized property under Section 71, no Court shall entertain any application in respect of the same property and the jurisdiction of the Collector or the authorized officer or the appellate authority with regard to the disposal of the same shall be exclusive." 4. In the cases at hand, the seizures have been made by the Excise Officer or Police Officer, as the case may be, and there is nothing on record to show that the seized Aviator Moped and Auto rickshaw have been produced before the Collector or the Authorized Officer as required under sub-section (1)(a) of Section 71 of the Act. In view of sub-section (3) of Section 71 of the Act, the Collector or the Authorized Officer, as the case may be, assumes power to proceed with confiscation of the seized property either where the seizure has been effected by him or where the seized properties are produced before him. That apart, a conjoint reading of sub-section (1)(a) and sub-section (3) of Section 71 of the Act would make it clear that although seizure can be made when there is reason to believe commission of any offence under the Act, the same reason ipso facto will not suffice an order of confiscation of the seized property. The Collector or the Authorized Officer, as the case may be, before passing an order for confiscation has to satisfy himself that an offence under the Act has been committed in respect of the property in question. The Collector or the Authorized Officer, as the case may be, before passing an order for confiscation has to satisfy himself that an offence under the Act has been committed in respect of the property in question. The bar as contemplated under Section 72 of the Act will come into play only when the Collector or the Authorized Officer or the Appellate Authority is seized with the matter of confiscation of any property seized under Section 71 of the Act, but not merely because any seizure has taken place. Further, as per sub-section (5) of Section 71 of the Act, the owner of the vehicle or conveyance has a right to participate in the confiscation proceeding to prove his ignorance or bona fides to defend his property. If a particular officer or authority fails to discharge his duty as assigned to him under the statute, and if such failure on his part is not attributable to the party who on account of such failure is deprived of exercising his own right of defence, the statutory bar cannot be made operative to the prejudice of such party in condonation of the unexplained laches or negligence on the part of the public officer. 5. In the present cases, there is no denial from the side of the learned Addl. Standing counsel appearing for the Government that no confiscation proceeding has been started in respect of the seized vehicles in question. There is also nothing on record to show that the concerned seizing officers have produced the respective vehicles before the concerned Collectors or the Authorized Officers in compliance with sub-section (2) of Section 71 of the Act. Hence, the Collectors or the Authorized Officers concerned cannot be said to have been seized with the matter of confiscation. Consequently, the bar under Section 72 of the Act cannot be said to have come into operation. The vehicles in question cannot be left in a state of damage and decay being exposed to sun, rain and other external hazards. 6. In the facts and circumstances, and for the reasons stated above, both the CRLMCs are hereby allowed. The impugned orders are quashed. The vehicles in question cannot be left in a state of damage and decay being exposed to sun, rain and other external hazards. 6. In the facts and circumstances, and for the reasons stated above, both the CRLMCs are hereby allowed. The impugned orders are quashed. The learned Magistrates are directed to release the vehicles in question in the interim custody of the respective applicants on being satisfied about their ownership, and on obtaining appropriate security from them besides an undertaking from them in shape of affidavit that they shall produce their respective vehicles before the competent authority as and when so required for the purpose of confiscation proceeding, and shall not transfer the same pending closure of the confiscation proceeding and/or trial of the concerned cases, and an endorsement in that regard shall also be made in the respective R.C. Books of the vehicles.