Laxmidhar Samal vs State Of Odisha
2021 Latest Caselaw 8833 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLMC No. 1172 of 2021

            Laxmidhar Samal            ....         Petitioner
                            Mr. Susanta Kumar Baral, Advocate
                                 -versus-
            State of Odisha            ....         Opp. Party
                  Mr. P. K. Maharaj, Additional Standing Counsel

                             CORAM:
                             JUSTICE S. K. PANIGRAHI
                                       ORDER

Order No. 25.08.2021

02. 1. This matter is taken up by virtual/physical mode.

2. Heard, learned counsel for the Petitioner and learned counsel for the State.

3. This application under Section 482 of CrPC has been filed by the Petitioner with a prayer to quash the order dated 18.06.2021 passed by the learned Nyayadhikari, Gram Nyayalaya, Ghasipura in C.M.C.(G.N.) No. 25 of 2021 and to release the vehicle in question arising out of 2(a)CC (G.N) Case No. 07 of 2021 in connection with Excise Station Anandapur PR Case No. 69 of 2020-21 in his favour.

4. Learned counsel for the Petitioner submits that the court below has rejected the 457 of CrPC petition to release the vehicle to the registered owner on the ground that the initiation of confiscation proceeding has been initiated in this case. He further relied upon the decision in the case of Ratnakar Behera Vrs. State of Odisha passed in CRLMC No. 985 of 2020 vide order dated 05.08.2020 wherein it has been decided that // 2 //

"mere initiation of confiscation proceeding cannot act as a bar for delivery of the vehicle to its owner when the owner of the registered vehicle has not been found guilty". Here in this case, the accused-Sukanta Samal being the son of the Petitioner, he is a third party.

5. The provision of Section 71 of the Odisha Excise Act provides that the Investigating Officer must produce the seized vehicle before the Superintendent of Excise, Collector (Section 71(2)) or the Authorized Officer for the initiation of the confiscation proceedings. The Inspector of Excise is not empowered to initiate a confiscation proceeding as provided in the Act. This ratio has been iterated by this Court in paragraphs-4 and 5 of the judgment in the case of Kalpana Sahoo and Anr. v. State of Orissa:1

"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 vehicle 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 affected 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

2019 (III) ILR-CUT160

// 3 //

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 addition to this, several High Courts have held that mere initiation of confiscation proceeding cannot act as a bar for delivery of the vehicle to its owner when the owner of the registered vehicle has not been found guilty. Allahabad High Court in the cases of Kamal Jeet Singh v. State2, Mohd. Hanif v. State of U.P.3 and Jai Prakash Sharma vs. State of U.P.4have iterated the same. The ratio decidendi as provided in Jai Prakash Sharma vs. State of U.P. (supra) is as follows:

1986 UPCri 50

1983 UPCR 239

1992 AWC 1744

// 4 //

"5. The revisionist had no knowledge or information of the liquor alleged to have been recovered from the truck. 2 1986 UPCri 50. 3 1983 UPCr 239. 4 1992 AWC 1744. 7 He is not a party to the aforesaid two cases pending before the District Magistrate, Etawah nor has any notice been issued to him the revisionist Jai Prakash Sharma, therein. The mere pendency of the confiscation proceedings is no bar to the release of the truck. The matter is still under investigation. The truck lying at the police station will, if not released, yet damaged, ruined and rusted, not only this, but it will also ultimately become un- useable and un-serviceable for various obvious reasons."

7. Further, several jurisdictional High Courts have decided against keeping the vehicles in custody for a prolonged period. The general law relating to release of vehicles seized in connection with a crime pending investigation or trial by the Magistrate, in the most universal of its dimension has been laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai vs. State of Gujarat5:

"17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third 5 2002 (10) SCC 283. 8 person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then the insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In

2002 (10) SCC 283

// 5 //

any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."

8. Having considered the matter in the aforesaid perspective and guided by the precedents cited hereinabove, this Court sets aside the order dated 18.06.2021 passed by the learned Nyayadhikari, Gram Nayalaya, Ghasipura in C.M.C. (G.N.) No. 25 of 2021 and allows the prayer of the petitioner on the following conditions:

1. The petitioner is directed to make the vehicle available as and when required during investigation of the case and thereafter in the court concerned.

2. The petitioner is directed not to make any changes or any variation to the vehicle during the pendency of the trial in the court concerned.

9. However, it is made clear that any of the observation made hereinabove with respect to the fact of the case, shall not come in the way or prejudicially affect the fair trial of the present case.

10. With the aforesaid reasons, this CRLMC stands disposed of.

11. Urgent certified copy of this order be granted on proper application in course of the day.

(S. K. Panigrahi) Judge AKP