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2020 DIGILAW 107 (ORI)

Narendra Kumar Swain v. State Of Odisha

2020-05-14

SATRUGHANA PUJAHARI

body2020
JUDGMENT S. Pujahari, J. - The question of law involved being common to both these applications filed under Section 482 of Cr.P.C., both of them are taken up together for disposal by a common order as follows:- 2. The petitioner in CRLMC No.79 of 2020 is registered owner of the Honda Activa scooty bearing registration No.OD-19-L-2506 which has been seized by the police for the allegation that the petitioner-owner was found transporting foreign liquor by the said scooty in contravention of the provisions of the Odisha Excise Act (for short "the Act"). For the said offence, Handapa P.S. Case No.118 dated 14.07.2019 corresponding to G.R. Case No.344 of 2019 in the Court of the S.D.J.M., Athmallik has been registered under Section 52(a) of the Act against the accused-petitioner. The accused-petitioner seeking for release of the seized scooty filed an application under Section 457 of Cr.P.C. before the learned S.D.J.M., Athmallik and upon rejection of the same at that level, the petitioner filed Criminal Revision No.1 of 2019 before the learned Addl. Sessions Judge, Athmallik, who vide his order dated 04.10.2019 has dismissed the same. Assailing the said orders, the petitioner has approached this Court under Section 482 of Cr.P.C. 3. Similarly, the petitioner in CRLMC No.92 of 2020 is the registered owner of the motorcycle bearing registration No.OD-09-F-1694 which has been seized by the S.I. of Excise, Sadar Charge, Keonjhar for the accusation that the petitioner was transporting 83 litres of Illicitly Distilled liquor by the said motorcycle. 2(a) C.C. Case No.286 of 2018 has been registered under Section 52 of the Act against the petitioner in the Court of the S.D.J.M., Keonjhar. The petition filed under Section 457 of Cr.P.C. by the accused-petitioner seeking for release of the seized motorcycle having been dismissed by the learned S.D.J.M., Keonjhar and the said order of dismissal having been upheld by the learned Sessions Judge, Keonjhar vide the order dated 07.12.2019 in Criminal Revision No.7 of 2019, the petitioner has approached this Court with the application under Section 482 of Cr.P.C. seeking for custody of the seized motorcycle. 4. I have heard the respective learned counsel for the petitioners in both the cases and the learned Addl. Standing counsel for the State. 5. 4. I have heard the respective learned counsel for the petitioners in both the cases and the learned Addl. Standing counsel for the State. 5. The seized scooty and motorcycle are sought to be released on the grounds, inter-alia, that no confiscation proceeding has been initiated under Section 71 of the Act, and the scooty and motorcycle are lying open being exposed to imminent decay and deterioration. It is further contended on behalf of the petitioners that their involvement in any offence under the Act having not yet been established by the prosecution, and no step having been taken for initiation of any proceeding under Section 71 of the Act, this Court should allow release of the seized scooty and motorcycle in favour of the respective petitioners who admittedly are the registered owners thereof and entitled to possession of the same. 6. Learned Addl. Standing counsel appearing for the State resists the applications on the ground of the provisions of the confiscation being contained in Section 71 of the Act and also on the ground of statutory bar under Section 72 of the Act. 7. In the cases at hand, as reported, the seized scooty and motorcycle having not been produced before the Collector or Authorized Officer, and no step having yet been taken for initiation of confiscation proceeding, the statutory bar as contemplated under Section 72 of the Act has not come to operate. It be also mentioned here that Sections 71 and 72 of the Act which are self contained provisions to deal with the seized properties, virtually operate as a bar on the exercise of the powers of the Magistrate under Chapter XXXIV of the Cr.P.C. But, the question, that is very often posed before the Magistrate as well as this Court is, what would be the fate of the seized vehicles or conveyances when the Officers as indicated in the Sections 71 and 72 of the Act fail in their statutory duties and on the other hand the Magistrate declines to pass any order regarding custody or disposal of the same for the reason of the bar contemplated under the Act. The State Legislature in its wisdom has entrusted duties exclusively to some specified officers with the object of confiscation of the seized vehicle to the State when those are found to have been used or engaged in commission of offences under the Act. The State Legislature in its wisdom has entrusted duties exclusively to some specified officers with the object of confiscation of the seized vehicle to the State when those are found to have been used or engaged in commission of offences under the Act. It is not the legislative intention to put the seized properties to the imminent danger of loss, damage or decay, or to leave the property in a state of uncertainty, to the benefit of none. 8. This Court has occasion to deal with a similar question in the case of Kalpana Sahoo vrs. State of Odisha,2019 2 OrissaLR 568 . Paragraphs-4, 5 and 6 of the said reported judgment may be relevantly extracted here below:- "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 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. 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. 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." 9. Of course, in the aforesaid reported case, the owners of the vehicles had not been made accused, whereas here in the present cases, the owner-petitioners are accused of having committed the offences under the Act. But, the same does not make much difference when the question emergent is common to both the situations; whether for lapse, laxity or inaction on the part of the Officers in relation to their statutory duties, should the property allegedly involved in the case be left in a state of decay or deterioration, to the benefit of none. The answer can not be in affirmative. 10. It is, therefore, hereby directed that in the event of an application being filed before the Magistrate seeking for custody of vehicle allegedly involved in a case under the Act, if the Magistrate after giving an opportunity of hearing to the Investigating Officer / the Officer who effected the seizure, is satisfied that the seized vehicle has not been produced before the Collector or Authorized Officer, and no confiscation proceeding has been initiated as per the provisions of the Act, he shall pass appropriate order regarding interim custody of the vehicle in the light of the direction given in the case of Kalpana Sahoo (supra). At the same time, it is also directed that the Officers / Authorities who have been entrusted with the statutory duties vide Sections 71 and 72 of the Act should be suitably sensitized by their higher authorities concerned, to comply with the mandatory requirements of the law, and in case of their willful negligence or deliberate omission, appropriate action on administrative side should be initiated against them. 11. In the result, both the CRLMCs are allowed. The matters are remanded to the respective Courts below, i.e., the learned S.D.J.M., Athmallik and the learned S.D.J.M., Keonjhar, for disposal of the applications under Section 457 of Cr.P.C. afresh in the light of the direction given hereinbefore. A copy of this judgment be communicated to the Courts below forthwith. A copy of this judgment be also communicated to the Director General of Police, Odisha and the Commissioner, Excise, Odisha for information and necessary action.