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2019 DIGILAW 603 (ORI)

Prabira Sikdar v. State of Odisha

2019-09-25

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. In this application under section 482 of the Cr.P.C., the petitioner Prabira Sikdar has prayed for quashing the impugned order dated 18.06.2018 passed by the learned Sessions Judge, Jagatsinghpur in Criminal Revision No.12 of 2018, whereby the learned revisional Court dismissed the revision petition and thereby confirmed the order dated 23.05.2018 passed by the learned S.D.J.M., Jagatsinghpur in Criminal Misc. Case No.48 of 2018 which arises out of 2(a)C.C. Case No.65 of 2018. 2. The facts of the case is that the petitioner who is an accused in 2(a)C.C. Case No.65 of 2018 along with the coaccused were transporting cartoons containing liquor in an auto rickshaw bearing registration No.OD-05-P-3812 on 18.03.2018 and they were intercepted by the complainant who was the S.I. of Excise, District Mobile Squard, Jagatsinghpur and from the auto rickshaw, fifteen nos. of cartoons containing liquor bottles in sealed condition were found. The petitioner was detained but the co-accused managed to flee away from the spot. Since the petitioner has failed to produce any authority for transporting the cartoons carrying liquor bottles, those were seized along with the auto rickshaw. The petitioner after being released on bail filed a petition under section 457 of Cr.P.C. before the learned S.D.J.M., Jagatsinghpur to release the auto rickshaw and vide order dated 23.05.2018, the learned Magistrate held that since the case has been instituted under section 52(a) of the Odisha Excise Act for unlawful possession and transportation of IMFL beer and the petitioner is the owner of the auto rickshaw in question which is involved in the alleged offence, he rejected the petition under section 457 of Cr.P.C. The petitioner being aggrieved by the aforesaid order approached the revisional Court in Criminal Revision No.12 of 2018 and the learned Sessions Judge, Jagatsinghpur exercising his revisional power held that since Odisha Excise Act prescribes for confiscation proceeding, the provision under section 457 of Cr.P.C. is not applicable and accordingly, rejected the revision petition. 3. Miss D.R. Nanda, learned counsel for the petitioner contended that even though the auto rickshaw was seized with the cartoons of beer bottles on 18.03.2018 but till today no confiscation proceeding has been initiated as enumerated under the Odisha Excise Act and therefore, the observation of the learned revisional Court that the power under section 457 of Cr.P.C. cannot be invoked is not proper. It is further contended that a person cannot be left remediless and the entire thing cannot be left in the mercy of the authority to initiate the confiscation proceeding and the vehicle being left under the open air being exposed to sun and rain, its condition is deteriorating day by day and therefore, it is a proper case where the power under section 457 of Cr.P.C. should be exercised and since there is no dispute that the petitioner is the registered owner of the seized auto rickshaw in question, it should be released in favour of the petitioner with suitable terms and conditions. She placed reliance in the cases of Narayan Tripathy Vs. State of Orissa, (2012) 52 OCR 634, Smt. Jasoda Das Vs. State of Orissa, (2003) 26 OCR 729, Jugal Kishore Nayak Vs. The Authorised Officer -cum- Divisional Forest Officer, (2003) 2 OrissaLR 530 and Rajkishore Das @ Baidhar Vs. State of Orissa, 2008 Supp CLT(Cri) 1260. 4. On going through the aforesaid decisions, it is very clear that if confiscation proceeding has not been initiated before the competent authority, the Magistrate is not precluded from exercising jurisdiction under section 457 of Cr.P.C. for delivery of the property seized to the person entitled for possession thereof. 5. Learned counsel for the State was asked to obtain instruction as to whether any confiscation proceeding has been initiated or not, who after obtaining instruction produced the letter from the Officer in Charge of Excise, Jagatsinghpur police station which indicates that no confiscation proceeding has been initiated against the seized vehicle. 6. Since no confiscation proceeding has yet been initiated in accordance with law and the auto rickshaw has been seized since 18.03.2018 and there is no dispute that the petitioner is the registered owner of the vehicle in question and its condition is likely to deteriorate being exposed to sun and rain and without proper maintenance, therefore, taking into account the ratio laid down in the aforesaid decision as well as in the decisions of the Hon'ble Supreme Court in the case of Sunderbhai Ambala Desai Vs. State of Gujarat, (2003) 24 OCR 444 (SC), I am inclined to accept the prayer made in this application and direct release the auto rickshaw bearing registration No. No.OD-05-P3812 in favour of the petitioner subject to the following conditions:- (i) the petitioner shall produce the original registration certificate, insurance papers before the concerned excise authority which shall be verified properly and true attested copies thereof shall be retained by the authority; (ii) the petitioner shall furnish property security worth of Rs.20,000/- (rupees twenty thousand); (iii) the petitioner shall keep the vehicle insured at all times till the conclusion of the trial and produce the insurance certificates before the trial Court as and when required; (iv) the petitioner shall not change the colour or any part of the engine and chasis numbers of the vehicle; (v) the petitioner shall furnish two photographs of the vehicle before taking delivery of the same; (vi) the petitioner shall not transfer the ownership of the vehicle in favour of any other person; (vii) the petitioner shall produce the vehicle before the Court as and when called upon; (viii) the petitioner shall not allow the vehicle to be used in the commission of any offence. 7. Accordingly, the CRLMC application is disposed of.