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2019 DIGILAW 525 (ORI)

Manmohan Jagat v. State of Odisha

2019-08-13

S.PUJAHARI

body2019
ORDER : S. Pujahari, J. 1. Heard the learned counsel for the petitioner and the learned counsel for the State. 2. This application under Section 482 of Cr.P.C. has been filed by the petitioner challenging the order dated 04.05.2019 passed by the learned Sessions-Cum-Special Judge, Nuapada in Criminal Revision No. 02 of 2019 confirming the order dated 28.03.2019 passed by the learned G.N.A-Cum-JMFC, Komna in CMC No. 02 of 2019 rejecting his petition filed under Section 457 of Cr.P.C. for interim release of the vehicle. 3. It appears that the petitioner's TVS Apache RTR-160 4V motorcycle bearing registration No. OD-26-C-7654 having been seized in connection with Komna P.S. Case No. 22 of 2019 corresponding to C.M.C. No. 2 of 2019, he filed a petition under Section 457 of Cr.P.C. before the learned G.N.A-Cum-JMFC, Komna for release of the same interimly in his favour, but the learned G.N.A-Cum-JMFC, Komna rejected the said petition of the petitioner and being aggrieved by the same, the petitioner preferred the aforesaid Criminal Revision before the learned Sessions-Cum-Special Judge, Nuapada considering the fact that the petitioner is an accused in the original case and the vehicle in question was transporting the foreign liquor without authority and the proceeding is beyond the jurisdiction of the Court as the statutory authority is vested with exclusive jurisdiction over the matter relating to confiscation of the seized properties, confirmed the order of the learned G.N.A-Cum-JMFC. Against the said order, the petitioner has come to this Court by filing this application under Section 482 of Cr.P.C. to quash both the aforesaid orders and release the vehicle in question in favour of the petitioner interimly. 4. Learned counsel for the petitioner submits that he has no instruction as to whether the confiscation proceeding has been initiated or not in the meanwhile. 5. In similar facts and circumstances of the case, this Court delivered a judgment dated 05.08.2019 vide CRLMC Nos. 123 and 197 of 2019, in the case of Katpana Sahoo vs. State of Odisha, wherein it has been held as follows:- "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 Autorickshaw have been produced before the Collector or the Authorized Officer as required under sub-section (1)(a) of Section 71 of the Act. 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 Autorickshaw 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 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 bonafides 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. 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 of the case and also in view of the aforesaid judgment delivered on 05.08.2019 by this Court, this CRLMC is allowed. The impugned order is quashed. The learned Magistrate is directed to release the vehicle in question in the interim custody of the petitioner on being satisfied about his ownership and on obtaining appropriate security from him besides an undertaking from him in shape of an affidavit that he shall produce his vehicle 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 case, and an endorsement in that regard shall also be made in the R.C. Book of the vehicle. It is made clear that if the confiscation proceeding has already been initiated as on date, this order shall not be given effect to. Urgent certified copy of this order be granted on proper application.