Priyabrata Sahoo vs State Of Odisha
2021 Latest Caselaw 248 Ori

                      HIGH COURT OF ORISSA: CUTTACK

                                 CRLMC No.1451 of 2020

       In the matter of an application under Section 482 of the Code of Criminal
       Procedure.
                                            ----------
       Priyabrata Sahoo                     .....................              Petitioner

                                            ---versus--

       State of Odisha                      ....................               Opposite party


              For Petitioner                :   Mr. Arijeet Mishra, Advocate

              For Opposite party            :   Mr. D. Mund,
                                                Additional Government Advocate

                                      JUDGMENT

P R E S E N T:

THE HON'BLE SHRI JUSTICE B.P. ROUTRAY

----------------------------------------------------------------------------------- Date of Hearing-27.11.2020 Date of Judgment-07.01.2021

----------------------------------------------------------------------------------- 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.

02. 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.

03. 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.

04. 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 2006 (Supp.-I) OLR--252 (E. Ankuda Patro vs. State of

Orissa).

05. 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 (2003) 25 OCR--840 (Soubhagya Kumar Panda

vs. State of Orissa) 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.

06. Further this Court in a recent decision reported in 2019 (III)

ILR-CUT-160 (Kalpana Sahoo and another vs. State of Odisha) 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.

07. 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.

08. 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.

09. 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.

The CRLMC is disposed of with the aforesaid directions.

.....................................

B.P. Routray, J.

Orissa High Court, Cuttack Dated 7th January, 2021/Basanta