Orissa High Court
Ramjanam Prasad vs The Excise Commissioner on 9 January, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 28124 of 2024
Ramjanam Prasad ..... Petitioner
-versus-
The Excise Commissioner, Odisha, ..... Opposite Parties
Cuttack and another
Advocates appeared in this case:
For Petitioner : Mr. P.K. Nayak, Advocate
For Opp. Parties : Mr. S.K.Swain, Advocate,
Additional Government Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Dates of hearing :16th December, 2024 and 9th January, 2025
Date of judgment : 9th January, 2025
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ARINDAM SINHA, J.
1. The writ petition bears challenge to detention of a vehicle.
The goods being carried stood confiscated and have been auctioned.
Petitioner is owner of the vehicle. It is a ten wheeler truck.
Petitioner's contention is, the vehicle was not produced as
mandated under sub-section (2) in section 71 of Odisha Excise Act,
2008. Sub-section (2) is reproduced below.
"71(2) Every officer seizing any property under this
section shall, except where the offender agrees in writing
to get the offence compounded under Section 75, produce
the property seized before the Collector, or an officer, not
below the rank of a Superintendent of Excise, authorized
by the State Government in this behalf by notification
(hereinafter referred to as „Authorized Officer‟)."
2. Mr. Nayak, learned advocate appearing on behalf of
petitioner had moved the petition on 28th November 2024. Relying
on certified copy of a communication made by Sub-Inspector of
Excise to the Superintendent of Excise-cum-Authorized Officer, he
contended that date of production is blank as appears from the
document. Earlier, Mr. Swain, learned advocate, Additional
Government Advocate appearing on behalf of State had pointed out
that the certified copy was of communication bearing DB no. 440
dated 21st December, 2023, while the vehicle had been produced on
20th November, 2023 as evidenced by annexure-A/1 in the counter,
bearing DB no.396 of said date. As such there were two documents,
bearing same contents regarding production of the vehicle, signed
by two different persons officiating as Sub-Inspector of Excise. One
bears DB no. 396 dated 20th November, 2023 and the other, DB no.
440 dated 21st December, 2023 with discrepancies in blanks and
signatures appearing thereon. We, by our order dated 16th
December, 2024 had made directions as in paragraphs 3 and 4 in
order made that day. The paragraphs are reproduced below.
"3. We have serious allegations made before us. While
the document produced in the counter is on notice of the
document relied upon by petitioner, the former has
distinct DB no.396 dated 20th November, 2023.
Petitioner‟s certified copy caries DB no.440 dated 21 st
December, 2023. Apart from that the text is identical.
However, the certified copy does not bear signature of the
Sub-Inspector of Excise as put on 20th November, 2023 in
the document produced by counter. Instead the certified
copy made has written endorsement of another Sub-
Inspector, signed on 25th January, 2024. Mr. Swain points
out explanation given in paragraph 12 of the counter.
4. The original certified copy is put in an envelope.
Registrar (Judicial) will communicate website copy of
this order to concerned Court by special messenger, to
obtain clarification on how two letters of the department,
both bearing signatures of the Sub-Inspector of Excise but
shown to be made on different dates can bear the same
text. Any other relevant information may also be
furnished. The Registrar will lay note including
producing the original letters/file on or before adjourned
date."
Registrar (Judicial) laid note and report of the Civil Judge-cum-
JMFC, in compliance.
3. There were two persons, who officiated as Sub-Inspector of
Excise. One Babun Kumar Behera made communication DB no.
396 dated 20th November, 2023 to the Superintendent saying the
truck was produced on that date. In his explanation attached to the
report he says, forwarding memo to the Court was not sent. Said
Babun Kumar Behera relinquished the office on that date itself by
handing over charge to next incumbent, one Laxman Naik. Said
incumbent, in his explanation attached to the report says, on a
subsequent date he noticed that intimation to Court had not been
given. Hence, he took another print from the computer of the
document being DB no. 396 dated 20th November, 2023, numbered
it as DB no. 440 dated 21st December, 2023, signed it on 25th
January, 2024 and sent it to Court. It is the second document,
certified copy of which petitioner obtained from the Court and had
annexed in the writ petition to say, the vehicle was not produced.
4. Mr. Swain submits, the certified copy was obtained from the
Court of Civil Judge-cum-JMFC and not from the authorized
officer. Copy of the document DB no.396 dated 20th November,
2023 has been annexed in the counter marked A/1. He points out
from annexure-B/1 being order dated 24th November, 2023 made by
the authorized officer that it was a contemporaneous order passed
soon after the production, recording it. We reproduce a passage
from the order, incomplete as appearing from it.
"SI of Excise Dist. Mobile Unit, Sundargarh reported
that he kept the seized mahua flower in zima to the
Licensee Bijay Kumar Perua (MF.Licensee No-13/2021-
2022) EPH of Rajgangpur OS Shop through ASM Manoj
Singh. He produced the seized Red colour Ten Wheeler
Truck bearing Reg. No-OR-14W-8577. On 20.11.2023
and he was ... ..."
It is after the order made that petitioner applied for compounding on
6th December, 2023. On petitioner having had so applied, there can
be no doubt that he was aware of the confiscation on due production
of the truck. The writ petition be dismissed.
5. Mr. Nayak in reply again relies on said provision in section
71(2). He submits, alleged production was without waiting for his
client to apply for compounding. His client having had applied
cannot be construed as an admission that the vehicle had been
produced, an event of which his client could not have had
knowledge.
6. The communication DB no.396 dated 20th November, 2023
was penned by the earlier Sub-Inspector of Excise, addressed to his
superior, the Superintendent. A copy by memo was to be marked to
the Court. Subsequent incumbent, who joined on 20th November,
2023, day when the vehicle is said to have been produced, says he
discovered later that intimation had not been sent to the Court. He
took another print from the computer, gave a different number and
date to it and sent it to the Court. Petitioner obtained certified copy
of it from the Court and has produced it before us. We thus have a
document signed by the Sub-Inspector as addressed to the
Superintendent and copy thereof given to the Court. In it date of
production of the vehicle is blank.
7. The confiscation must be by authority of law because the
authorized officer is seeking to confiscate a citizen's property.
Hence, for the purpose of us being convinced to find that the
vehicle was duly produced on 20th November, 2023, we looked at
material relied upon by State. We find from said order dated 24 th
November, 2023 of the authorized officer that statement made
therein is what the Sub-Inspector had reported. We have not been
able to find a line in confirmation, appearing in the order, saying
that the vehicle had actually been produced. Mr. Swain points out
that last sentence in the passage from said order reproduced above,
says that the Sub-Inspector produced the seized red colour ten
wheeler truck on 20th November, 2023. We read that sentence as
part of what the Sub-Inspector had reported because it continues to
say something else, which does not appear from the order. State has
not produced to rely on the original communication DB no.396
dated 20th November, 2023, particularly when we by our said order
dated 16th December, 2024 had called for report regarding the
documents.
8. Case of the department is, there was intimation to be made to
Court regarding the case of detention and confiscation. The
intimation could not be made in a manner erroneous, for subsequent
explanation that it is only an intimation and text of what was
intimated may not be true reflection of the original document. It
will be dangerous for us to act on such submission. We have also
noticed that the outgoing officer said in his explanation, he was
overburdened. He admits to have omitted sending the intimation.
There is no explanation as to why copy of the original document
was not sent as intimation but another document generated for
purpose of it. This is significant as there is also no explanation as to
how the omission was detected by the subsequent officer because,
presumption is, detection happened on noticing the memo of
intimation still in the file, never sent to Court.
9. For reasons aforesaid, we are constrained to hold that the
confiscation was not by due exercise of power, as authorized by
law. Impugned is confiscation order dated 27th March, 2024 as well
as appellate office order dated 12th September, 2024, confirming the
confiscation. Both the orders are set aside and quashed. In the
meantime petitioner had obtained judgment dated 7 th March, 2024
of acquittal under section 248(1) in Code of Criminal Procedure,
1973 from Court of the Judicial Magistrate First Class (JMFC),
Rajgangpur in 2(a)(cc) Case no.427/2023. On strength of the
judgment he had applied to the authorized officer for release of the
truck. Relying on section 73, the application stood rejected. On us
having set aside the confiscation order and the confirmation in
appeal, we will not restore the confiscation proceeding because
though by section 73 it is provided that result of criminal
proceeding of, inter alia, acquittal will have no bearing on the order
of confiscation passed, upon the confiscation set aside and there
existing said judgment dated 7th March, 2024 of the JMFC,
restoration of the proceeding to the authorized officer will give rise
to possibility of there still being order of confiscation, which will go
against said judgment of a Court.
10. Petitioner is entitled to release of the truck. Petitioner will
produce certified copy of this order before the authorized officer,
who will release the truck to him forthwith. The certified copy of
communication being DB no.440 dated 21st December, 2023 be
kept back in the file in sealed cover.
11. The writ petition is allowed and disposed of.
(Arindam Sinha)
Judge
(M.S. Sahoo)
dutta/radha Judge
asant Location: OHC
