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2021 DIGILAW 11 (ORI)

Priyabrata Sahoo v. State Of Odisha

2021-01-07

B.P.ROUTRAY

body2021
JUDGMENT B.P. Routray, J. - By way of a petition under Sec.482 of Cr.P.C., the petitioner has challenged the order dated 01.10.2020 passed by the learned Sessions Judge, Kendrapara in Criminal Revision No.21 of 2020 wherein the prayer of the petitioner to release his vehicle under Sec.457 Cr.P.C. has been refused as involved in commission of offences under Secs.188/269/270/34, I.P.C. and Sec.52(a) of the Odisha Excise Act. 2. The facts reveal that on 16.07.2020, the S.I., Aul Police Station detected the vehicle, i.e., Hero Glamour motorcycle bearing Regd. No.OD-29-G-0819 transporting contraband liquor by the accused persons, namely, Rashmikanta Behera and Priyabrata Sahoo, the present petitioner. As such, the contraband was seized along with the vehicle and the accused persons were arrested. After the chargesheet was submitted for the aforesaid offences, a petition under Sec.457 of the Cr.P.C. was moved with a prayer to release the vehicle. This was rejected by the learned J.M.F.C., Aul. Thereafter, the petitioner filed criminal revision petition before the learned Sessions Judge, Kendrapara, which was also rejected by the learned Sessions Judge. This is impugned in the present petition. 3. It is submitted by learned counsel for the petitioner that the petitioner is the owner of the vehicle in question and since no confiscation proceeding as contemplated under the Odisha Excise Act has been initiated yet, his vehicle should be released and the learned Sessions Judge has committed illegality on this aspect. 4. It is seen from the order impugned under Annexure-3 that the learned Sessions Judge while saying that, though no confiscation proceeding has been initiated yet the petitioner being an accused for offence under Sec.52(a) of the Odisha Excise Act, the seized motorcycle is liable for confiscation by the appropriate authority as per the provision of Sec.71(3) of the Odisha Excise Act. To support his reasoning to not release the vehicle, learned Sessions Judge has relied on a decision of this Court reported in (E. Ankuda Patro vs. State of Orissa,2006 Supp1 OrissaLR 252). 5. To support his reasoning to not release the vehicle, learned Sessions Judge has relied on a decision of this Court reported in (E. Ankuda Patro vs. State of Orissa,2006 Supp1 OrissaLR 252). 5. Perusal of the said decision of this Court as relied on by the learned Sessions Judge, it is seen that the learned Single Judge in a case of release of vehicle concerning the offences under the Old Bihar and Orissa Excise Act, 1915, by relying on a decision of the Division Bench of this Court reported in (Soubhagya Kumar Panda vs. State of Orissa, (2003) 25 OCR 840) has refused to release the vehicle by saying that, the Division Bench in the aforestated case have made a distinction as to in what type of cases the provision under Secs.66 and 68 of the Bihar and Orissa Excise Act, 1915 is invokable and where it is excluded, speaks in one category that where the Magistrate is found to be competent to consider such matter when the vehicle was used not by the owner of the vehicle and there is no allegation of connivance of the owner for such illegal use of the vehicle, and by applying the same analogy since the petitioner therein was the owner of the vehicle which was allegedly carrying the seized whisky bottles, therefore the Magistrate's jurisdiction is excluded because the Collector and the Excise Officer have the jurisdiction either to compound under Sec.66 of the Bihar and Orissa Excise Act, 1915 and the matter relating to interim custody is to be considered in such forum. It is further seen that the Division Bench of this Court to which the learned Single Judge has relied on the case of E. Ankuda Patro (supra), have made an elaborate discussion of concerned provisions including Secs.66 and 68 of the erstwhile Bihar and Orissa Excise Act and observed that since the owner of the conveyance is not implicated in commission of the offence under the Bihar and Orissa Excise Act, 1915, the Collector will have no power to pass orders for release of such conveyance as the same is not liable to confiscation under Sec.66 of the Bihar and Orissa Excise Act, 1915. The Division Bench of this Court after analyzing Secs.4 and 5 of the Criminal Procedure Code have further observed that, since the power of the Collector or the Excise Officer to release the property pending final orders by the Magistrate under Sec.67(1) of the erstwhile Bihar and Orissa Excise Act is confined to only property seized as liable to confiscation under Sec.66 and does not extend to the property which is not seized as liable to confiscation, the Magistrate will have the powers under Secs.451 and 457 of the Cr.P.C. to deal with such property not liable to confiscation in the manner indicated in the said provisions of Secs.451 and 457 of the Cr.P.C. 6. Further this Court in a recent decision (Kalpana Sahoo and another vs. State of Odisha, 2019 3 ILR(Cut) 160 ) which is a case of release of vehicle concerning the offence under the present Odisha Excise Act, 2008 have observed that, the bar as contemplated under Sec.72 of the Odisha Excise Act, 2008 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 Sec.71 of the Act, but not merely because any seizure has taken place. It is further observed that, 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. 7. 7. Therefore, upon a close perusal of the rulings aforementioned and upon analysis of the concerned provisions under the Odisha Excise Act, 2008 as well as the relevant provisions enshrined under the Cr.P.C., a safe opinion can be derived that; (i) Where the owner has not been implicated as an accused; or (ii) Where the properties seized have not been produced before the Collector or the Authorised Officer, as the case may be; or (iii) Where the confiscation proceeding has not been initiated; the Magistrate is empowered under the general provisions of the Cr.P.C. including the jurisdiction and powers under Chapter XXXIV for disposal of the seized property and consequently has also the power to deal with such seized property under Secs.451 or 457 of the Cr.P.C. 8. In the instant case, the learned Sessions Judge in his order has stated that no confiscation proceeding has been initiated in respect of the seized vehicle and the learned counsel for the State also does not dispute the submission of learned counsel for the petitioner that no confiscation proceeding has been initiated yet. In such situation and in view of the discussions made above, the impugned order refusing to release the vehicle in favour of the petitioner is not found justified. As such, it is felt apposite to direct for release of the vehicle in favour of the petitioner pending trial. 9. Accordingly, the vehicle, i.e., Red colour Hero Glamour bearing Regd. In such situation and in view of the discussions made above, the impugned order refusing to release the vehicle in favour of the petitioner is not found justified. As such, it is felt apposite to direct for release of the vehicle in favour of the petitioner pending trial. 9. Accordingly, the vehicle, i.e., Red colour Hero Glamour bearing Regd. No.OD-29-G-0819 be released in favour of the petitioner subject to the following conditions: (i) the petitioner shall produce the original registration certificate, insurance paper before the concerned police station which shall be verified properly and true attested copies thereof shall be retained by the investigating officer/IIC of the police station; (ii) the petitioner shall furnish property security worth of Rs.30,000/- (rupees thirty thousand) for the vehicle; (iii) the petitioner shall keep the vehicle insured at all times till conclusion of the trial and produce the insurance certificate before the learned trial court as and when required; (iv) the petitioner shall not change the colour or any part of the engine and chasis number of the vehicle; (v) the petitioner shall furnish four photographs of the vehicle taken from different angles 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. 10. The CRLMC is disposed of with the aforesaid directions.