Dinabandhu Rohidas vs State Of Odisha & Another
2021 Latest Caselaw 12576 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                              CRLMC No. 1263 of 2021

            Dinabandhu Rohidas                   ....                 Petitioner
                                                      Mr. S.K. Mulia, Advocate
                                      -Versus -
            State of Odisha & Another       ....                Opposite Parties
                                                               Mr. P. Tripathy,
                                                        Addl. Standing Counsel

                       CORAM:
                         JUSTICE SASHIKANTA MISHRA
                                    ORDER_
                                    07.12.2021

Order No.
              1.

This matter is taken up through hybrid mode.

3.

2. The petitioner in the present application filed under Section 482 of Cr.P.C., challenges the judgment dated 14.09.2020 passed by learned Sessions Judge, Jharsuguda in Criminal Revision No. 20 of 2020, whereby, the order passed by the learned S.D.J.M., Jharsuguda in rejecting the application filed by him claiming release of the seized vehicle belonging to him was confirmed.

3. The facts of the case are that on 12.07.2020 at about 7.20 p.m., when the staff of Rengali Police Station were performing patrolling duty at Kuremal Chowk, they received reliable information that a person was transporting liquor in a motorcycle. Upon receipt of such information, the police party proceeded towards Nachanmura chowk and at about 8.00 pm. they found a person coming on a motorcycle with a big polythene bag. On search, it was found that the said polythene bag was carrying 80 liters of ID liquor. The registration

number of the said motorcycle is OD-23-J-0654 (Hero Passion XPRO). Basing on the report of the S.I., Rengali P.S. Case No. 109 dated 12.07.2020 was registered against the rider, namely, Bijay Satnami under Section 52(a) of the Orissa Excise Act, 2008 and the motorcycle was seized. On 16.07.2020, the present petitioner claiming to be the owner of the vehicle filed an application before learned S.D.J.M., Jharsuguda for release of the vehicle but the same was rejected vide order dated 26.08.2020 on the ground that confiscation proceedings had already been initiated. The petitioner carried the matter in revision to the Court of Sessions Judge, Jharsuguda by filing the above mentioned Criminal Revision. Learned Sessions Judge noted the fact that the petitioner is not an accused in the case and that he is the registered owner of the seized motorcycle, but it was held that confiscation proceeding under Section 71 of the Orissa Excise Act, 2008 had already been initiated. Therefore, taking into consideration the bar under Section 72 of the Act, learned Sessions Judge disposed of the revision by confirming the order of learned S.D.J.M., Jharsuguda, which is impugned before this Court.

4. Heard Mr. S.K. Mulia, learned counsel for the petitioner and Mr. P. Tripathy, learned Addl. Standing Counsel appearing for the State.

5. It is submitted by Mr. Mulia that even though confiscation proceeding has been initiated, the same was not conducted in accordance with law, inasmuch as no specific finding was rendered by the authorized officer whether the

vehicle had been used without the knowledge or connivance of the owner. It is further submitted that learned authorized officer simply noted the fact that the petitioner is known to the accused, Bijay Satnami and therefore, considered the same as automatically establishing the offence without causing any enquiry whatsoever.

6. Mr. P.Tripathy, learned Addl. Standing Counsel has contended that adequate opportunity was given to the petitioner to defend himself but he did not avail of such opportunity and therefore, there is no reason for this Court to interfere with the impugned order.

7. While this Court finds that there is nothing wrong in the order passed by the learned Sessions Judge in confirming the order of learned S.D.J.M., looking at the bar under Section 72 of the Orissa Excise Act, 2008 yet, the copy of the record of the confiscation proceeding having been produced by learned State Counsel, it is observed that there has been no enquiry worth the name and simply considering the fact that the petitioner is known to the accused, it has been held by learned Authorized Officer that the same automatically proves the offence.

8. Such is not the intention of the legislature as can be seen from a reading of the relevant statutory provision. Sub-Section (5) of Section 71 of the Orissa Excise Act, 2008 reads as under:

71. Seizure of property liable to confiscation :-

xx xx xx

(5) Without prejudice to the provisions of Sub- section (4), no order of confiscation under Sub- section (3) of any articles, materials, vehicles or conveyances shall be made if the owner thereof proves to the satisfaction of the Collector or the Authorized Officer, as the, case may be, that it was used without his knowledge or connivance or the knowledge or connivance of his agent, if any, or the person in charge of such property, in committing the offence and that each of them had taken all reasonable and necessary precautions against such use." (emphasis supplied) xx xx xx

9. From the language employed in the provision quoted above, it is crystal clear that the satisfaction of the Collector has to be subjective and hence, must be preceded by some enquiry to establish the fact that the vehicle was used with or without the knowledge or connivance of the owner so as to hold that the same is liable or not liable for confiscation.

10. A perusal of the impugned order does not reveal any such enquiry having been concluded, rather, learned authorized officer appears to have arrived at the conclusion quite abruptly only because the petitioner was known to the accused. Having regard to the statutory mandate as referred above, such finding, being without any evidence or materials, cannot be countenanced in law. This Court is therefore, of the considered view that the enquiry in the confiscation proceeding should be made afresh by granting due opportunity to the concerned parties to prove their cases by adducing evidence, if need be and the findings should be rendered on the basis of such

enquiry.

11. In such view of the matter, the CRLMC is disposed of with a direction to the concerned authorized officer to hear the matter afresh keeping in view the legislative intent reflected in sub-section (5) of Section 71 quoted hereinbefore and to pass order within a period of three weeks from the date of production of certified copy of this order. Till such time, the vehicle shall not be auctioned.

12. With the above observations and directions, the CRLMC stands disposed of.

13. Issue urgent certified copy as per rules.

(Sashikanta Mishra) Judge

A.K. Rana