Orissa High Court

Srikant Das vs State Of Odisha on 1 September, 2021

 AFR

                      HIGH COURT OF ORISSA, CUTTACK

                            CRLMC No.234 of 2021

          (In the matter of application under Section 482 of the Criminal
                                  Procedure Code)


          Srikant Das                         ...            Petitioner

                                            Versus

         State of Odisha                      ...          Opposite Party


               For Petitioner      : M/s.Partha Sarathi Nayak,
                                     Rakesh Behera, S.S. Mohapatra
                                     and S. Hota, Advocates

              For Opposite Party: Mr. Karunakar Gaya
                                  Additional Standing Counsel

 PRESENT

              THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI

  Date of Hearing: 18.08.2021            Date of judgment: 01.09.2021

S. K. Panigrahi, J.

1. The petitioner has filed this application under Section 482 of CrPC

challenging the order dated 28.01.2021 passed by the learned

Sessions Judge, Balasore in Criminal Revision No.02 of 2021 arising

out of order dated 16.12.2020 passed by the learned J.M.F.C. (R),

Balasore in Misc. Case No.139 of 2020 arising out of 2(a) CC No.135

of 2020, wherein the prayer of the petitioner to release his BAJAJ

Pulsar 150 DTS-I (ABS) motorcycle bearing registration No.OD-01AE-

2931 which was seized in connection with 2(a) CC No.135 of 2020

under Section 52(a) of the Odisha Excise Act, has been rejected.

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2. The prosecution story, in brief, is that on 20.10.2020, OIC

('Informant'), Excise Station, Balasore-II, while discharging his

patrolling duty, arrested a person named Chakradhara Ojha for

illegal transportation of 140 litres of I.D. liquor in a black and red

colour BAJAJ Pulsar 150 DTS-I (ABS) motorcycle (hereinafter

'vehicle') bearing registration No.OD-01AE-2931. The police seized

the alleged contraband liquor along with the said vehicle and

registered the aforementioned case.

3. Learned Counsel for the petitioner submits that the vehicle stands

registered in the name of the petitioner and the petitioner is not an

accused in P.R. Case No.68/2020-21. He further submits that even

though the confiscation proceedings has already been initiated vide

Excise Case No.114 of 2020, however, the petitioner, who is the

registered owner of the vehicle has neither been notified nor

intimated in any manner during the confiscation proceedings. Hence,

the petitioner has been deprived of his own right of defense provided

under Section 71(5) of the Odisha Excise Act.

4. Learned Counsel for the petitioner, while relying on the decision of

this Court in Kalpana Sahoo vs State of Odisha 1, has contended

that a conjoint reading of sub-section (3) and (5) of Section 71 of the

Odisha Excise Act makes it clear that where a confiscation

2019 76 OCR 336

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proceeding against a property is initiated by the authority, the owner

or his agent or any person in charge of the property should be

notified of his right of defence in the said proceedings and if the said

owner or his agent or any person in charge of his property proves to

the satisfaction of the authority under the Act stating that the said

property was used without his knowledge or connivance, no order of

confiscation under Section 71(3) shall be made.

5. Per contra, Mr. Karunakar Gaya, learned Additional Standing

Counsel has vehemently opposed the release of the vehicle of the

petitioner contending that the vehicle in question was used by the

accused in committing offence under section 52(a) of the Odisha

Excise Act, and therefore, is liable to be confiscated under Section 72

of the Odisha Excise Act. Since confiscation proceedings have already

been initiated, the order of rejection passed by learned Trial court is

correct. Further, Section 72 of the Odisha Excise Act bars the

jurisdiction of any other court from entertaining application in

respect to the property.

6. Heard learned counsel for the petitioner and learned counsel for

the State. It is well settled that before passing an order of

confiscation under Section 71(3) of the Odisha Excise Act, the

authority, empowered under Section 71(2) of the Act to initiate a

confiscation proceeding has to satisfy himself that an offence under

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the Act has been committed. Section 71(5) of the Act provides that,

no order under Section 71(3) of the Act shall be passed, if the owner

of the seized property proves that the alleged property was being used

without his knowledge or connivance in any manner whatsoever.

However, the petitioner, who is the registered owner of the vehicle

was neither notified nor intimated in any manner regarding the

confiscation proceeding. Therefore, this clearly shows a major

omission in the compliance of due process. Therefore, the ratio has

been iterated by this Court in paragraphs-4 and 5 of the judgment in

the case of Kalpana Sahoo (supra) :

"4. In the case 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

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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. 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."

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7. 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. State 2, Mohd. Hanif v. State of U.P. 3 and Jai

Prakash Sharma vs. State of U.P. 4 have iterated the same. The

ratio as provided in Jai Prakash Sharma vs. State of U.P. (supra)

is as follows:

"5. The revisionist had no knowledge or information of the liquor alleged to have been recovered from the truck. 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."

8. Further, several judgments of the Apex Court have held 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

1986 UPCri 50.

1983 UPCr 239.

1992 AWC 1744.

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of its dimension has been laid down by the Hon'ble Supreme Court in

Sunderbhai Ambalal Desai vs. State of Gujarat 5:

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

9. The above-mentioned ratio has also been iterated by this Court in

the case of Dilip Das vs. State of Odisha, 6 wherein this Hon'ble

Court held that since no confiscation proceeding has yet been

initiated in accordance with the law, the vehicle in question cannot

2002 (10) SCC 283.

2019 (III) ILR-CUT 386.

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be left in a state of damage being exposed to sun, rain and without

proper maintenance.

10. Having considered the matter in the aforesaid perspective and

guided by the precedents cited hereinabove, this Court sets aside the

order dated 28.01.2021 passed by learned Sessions Judge, Balasore

in Criminal Revision No.02 of 2021 arising out of order dated

16.12.2020 passed by learned J.M.F.C. (R), Balasore in Misc. Case

No.139 of 2020 arising out of 2(a) CC No.135 of 2020 and allows the

prayer of the petitioner on the following conditions:

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