Orissa High Court
Vinay Kumar Jaiswal vs State Of Orissa ..... Opp. Party on 11 July, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 108 of 2024
An application under Sections 397 and 401 read with Section 457 of the
Code of Criminal Procedure.
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Vinay Kumar Jaiswal ..... Petitioner
-versus-
State of Orissa ..... Opp. Party
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For Petitioner : Ms. Agnisikha Ray, Adv.
For Opp. Party : Mr. S.S. Mohapatra, A.S.C.
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
11.07.2025
Savitri Ratho, J This Criminal Revision has been filed challenging the order
dated 24.01.2024 passed in CMA No. 254 of 2023 by the learned
S.D.J.M., Jharsuguda rejecting the application filed under Section 457
of the Code of Criminal Procedure (in short "Cr.P.C") for release of
the Maruti Dzire VXI bearing Registration No. OD-23-K-8563 in
favour of the petitioner who claims to be the registered owner of the
said vehicle. The vehicle has been seized in connection with
Banharpali P.S. Case No. 136 of 2023 corresponding to C.T. Case
No. 1481 of 2023 in the Court of the learned S.D.J.M., Jharsuguda
registered under Section 52(a) of the Odisha Excise Act (in short "the
Act").
2. I have heard Ms. Agnisikha Ray, learned counsel for the
petitioner and Mr. S.S. Mohapatra, learned Addl. Standing Counsel
for the State and perused the affidavit and instructions of the IIC,
Banharpali Police Station.
PROSECUTION CASE
3. The petitioner is the registered owner of Maruti Dezire VXI
bearing Registration No.OR-23-K-8563 having its Chassis No.
MA3CZFB3SLJ702514 and Engine No. K12NN9040796, which had
been seized on 11.08.2023 by the I.O. in connection with Banharpali
P.S. Case No.136 of 2023 registered for commission of offences
punishable under Section 52 (a) of the Orissa Excise Act.
4. As 68 bottles of Indian Made Foreign Liquor (in short
"IMFL") were detected in vehicle bearing Registration No. OD-23k-
8563 and seized alongwith the vehicle, the Superintendent of Excise,
Jharsuguda was moved to initiate confiscation proceeding under
Section 71 of the Act in respect of the said vehicle.
SUBMISSIONS
5. Ms. Agnisikha Ray, learned counsel for the petitioner
submitted that the petitioner is the registered owner of the vehicle and
the vehicle which was seized on the allegations that IMFL bottles
were found in the car. She further submitted after completion of
investigation, charge sheet dated 30.09.2023 has been submitted. The
vehicle which had been seized by the police on 11.08.2023 was in the
custody of the Excise Superintendent. It was lying in the open since
11.08.2023, for which its parts are getting damaged. As the C.T. case
has not been finally decided and the confiscation proceeding was
pending, interim release of the vehicle should have been allowed as
such release will be subject to final order which may be passed by the
learned trial Court. But the prayer for release of the vehicle was
rejected on untenable grounds. The decision of this Court in the case
of Sailesh Muduli @ Sailesh Kumar -vs- State of Odisha reported in
(2022) 87 OCR 387, has been distinguished by the learned Magistrate
without any justification. She relied on the decisions of this Court in
the case of :-
i) Laxmidhar Samal vs. State of Odisha (CRLMC No. 1172 of 2021)
decided on 25.08.2021;
ii) Ratnakar Behera vs. State of Odisha (CRLMC No. 985 of 2020)
decided on 05.08.2020 ;
iii) Ashis Ranjan Mohanty vs. State of Odisha : 2022) 85 OCR 705 :
2022 SCC On Line Ori 510 ; and the decision of the Gauhati High
Court in the cases of :-
iv) The State of Assam & Another vs. Ram Sankar Maurya
(Criminal Petition No. 284 of 2022) and batch decided on 02.03.2023;
6. Mr. S.S. Mohapatra, learned Addl. Standing Counsel for the
State opposed the prayer for release of the vehicle stating that as the
confiscation proceeding had commenced , in view of the decision of
this Court in the case of Manjulata Bhuyan vs. State of Odisha
(CRLMC No. 5221 of 2023) decided on 08.01.2024, where it has
been held that once the confiscation proceeding starts, the learned
Magistrate loses power to decide any application under Section 457 of
Cr.P.C. He also submitted that the process of auction of the vehicle
has started and the valuation of the vehicle has been done and the
process of the auction would be subject to final decision in the trial.
He also submitted that as the petitioner who is the owner of the
vehicle is an accused in the case, Section 71 Sub-Section 7 and
Section-72 of the Orissa Excise Act are a bar for granting interim
release of the vehicle.
7. He referred to the affidavit filed by the Sub Inspector of
Banharpali Police Station where it has been stated :
"3. That, during investigation the vehicle utilised for
transportation of foreign liquor bottles was seized from the
vehicle driven by the petitioner himself. Accordingly the
vehicle and liquor bottles were seized and a seizure list was
prepared and the copy of the seizure list dtd.l 1.08.2023 is
enclosed herewith as Annexure-C.
4. That, after conclusion of investigation charge sheet has
been filed dtd.30.09.2023 and the copy of the Charge Sheet
No. 136 dtd.30.09.2023 is enclosed herewith as Annexure-
D.
5. That, prayer for initiation of confiscation proceeding in
respect of vehicle is enclosed herewith as Annexurc-E.
6. That, the authorised Officer-cum- Superintendent of
Excise, Dist. Excise Office, Jharsuguda, vide notice No.l324
dtd.08.09.2023 issued notice to the petitioner to take part in
the confiscation proceeding and the copies thereof were
given to the petitioner vide notice No. 1741 dtd31.10.2023,
Notice No.1874 dtd.15.11.2023, Notice No.777
dtd.20.03.2024 for his information and to take part in the
confiscation proceeding and the said notices are enclosed
herewith as Annexure-F series.
8. On 30.08.2024, the learned Additional Standing Counsel
had brought on record, the instructions of the Superintendent of
Excise, Jharsuguda, which is extracted below : -
"With reference to the letter on the subject cited above, it is
submitted that, the IIC, Banharpali P.S. has prayed for
confiscation of seized vehicle bearing regd. No-OD-23K-
8563 before the authorized officer-cum-superintendent of
Excise, Jharsuguda arising out of Banharpali P.S. Case No.
136 dt. 11.08.2023 of A/P A.S.I. of Police Bandhbahal,
P.S.- Banharpali, which is under process.
As per Section 71(5) of the Odisha Excise Act, 2008
and Rule -253 of Odisha Excise Rule, 2017, before auction
of the seized motor vehicle or any conveyance transporting
any intoxicant, it shall be examined by the Motor Vehicle
Inspector (MVI) who being satisfied shall fix the reserve
price/market value thereof for auction.
Accordingly the R.T.O., Jharsuguda has been
requested for ownership detail of the seized vehicles vide
DR No-1396/ Dated.11.08.2023 by IIC, Banharpali P.S.
The ownership of the seized vehicle along with valuation
report has been received from MVI, Jharsuguda. The
Market Price of seized vehicle is Rs.3,50,000/-.
Further the owner of the vehicle has been directed
through Sub-Inspector of Police, Bandhbahal Out Post for
appear in person or enter appearance through his
opportunity of being heard in the matter on 13.09.2023 at
11.00 A.M. in the Court of Authorized Officer -cum-
Superintendent of Excise, Jharsuguda. After 4th time of
Noticed issued to the owner of the vehicle for appear in the
Court of Authorized Officer -cum- Superintendent of Excise,
Jharsuguda, but the owner of the vehicle neither response
in any notice nor any reply in this regard. Now the vehicle
under process for open auction very soon.
Confiscation Proceeding has already been initiated
and started vide Excise Case C.P. No. 23 of 2023-24 of
2023.
STATUTORY PROVISIONS
9. Section 71, Section 72 and Section 75 of the Orissa Excise
Act are relevant for deciding this case. So the provisions are extracted
below :
"Section - 71. Seizure of property liable to confiscation:-
(1) (a) When there is reason to believe that any offence
under this Act has been committed, the intoxicant,
materials, stills, utensils, implements, apparatus,
receptacles, package, coverings, animals, carts, vessels,
rafts, vehicles, or any other conveyances or articles or
materials used in committing any such offence may be
seized by the Collector or any Officer of the Excise Police,
Customs or Revenue Departments.
(b) any intoxicant lawfully imported, transported,
manufactured in possession or sold along with, or in
addition to, any intoxicant which is liable to seizure under
clause (a) and the receptacles, packages and coverings in
which any such intoxicants as aforesaid, or any such
materials, stills, utensil, implement or apparatus as
aforesaid, is found and the other contents, if any, of such
receptacles or packages, and the animals, carts, vessels,
rafts, vehicles or other conveyances used in carrying the
same, shall likewise be liable to seizure.
(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').
(3) Where the Collector or the Authorized Officer seized
any property under Sub-section (1) or where the property
seized is produced before him under Sub-section (2) and he
is satisfied that an offence under this Act has been
committed in respect thereof, he shall, without prejudice to
any other punishment to which the offender is liable under
this Act, order confiscation of the property so seized or
produced together with all other materials, articles, vehicles
or conveyances used in committing such offence, whether or
not a prosecution is instituted for the commission of such an
offence.
(4) No order confiscating any property shall be made under
Sub section (3) unless the person from whom the property is
seized is given
(a) a notice in writing informing him of the grounds on
which it is proposed to confiscate such property;
(b) an opportunity of making a representation in writing
within such reasonable time as may be specified in the
notice; and
(c) a reasonable opportunity of being heard in the matter.
(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.
(6) Any person aggrieved by an order passed under Sub-
section (3) may, within thirty days from the date of such
order, appeal to the Excise Comissioner, who shall after
giving an opportunity to the parties to be heard, pass such
order as he may think fit.
(7) The property seized under this Section shall be kept in
the custody of the Collector, the Authorized Officer or the
other officer seizing such property or with any third party,
until the amount for compounding the offence or the sum
equal to the prevailing market value of the seized property
or both are paid or until it is confiscated as the case may be:
Provided that the seized property shall not be released
during pendency of the confiscation proceedings even on the
application of the owner of the property for such release.
(8) Whenever property seized is liable to confiscation under
this section and the offender or the person entitled to
possession is not known or can not be found, the case shall
be inquired into and determined by the Collector or the
Authorized Officer, who may order confiscation :
Provided that no such order shall be made until the
expiration of one month from the date of seizing of the
property to be confiscated, or without hearing any person
who may claim any right within the said period and the
evidence if any, which he produces in support of his claim.
(9) If the property seized is liable to speedy and natural
decay, or if the Collector or the Authorized Officer, as the
case may be, is of the opinion that sale would be for the
benefit of its owner, such officer may, at any time, direct it
to be sold and the provisions of this section shall, as nearly
may be practicable, apply to the net proceeds of the sale.
(10) Subject to the rules as may be made by the State
Government under Section 90, the Collector or the
Authorized Officer, while making an order of confiscation,
may also order that such of the properties to which the
order of confiscation relates, which in his opinion to be
recorded in writing cannot be preserved or not fit for human
consumption, may be destroyed.
(11) Where the Collector or the Authorized Officer after
passing an order confiscation under Sub-section (3) is the
opinion that, it is expedient in the public interest so to do, he
may order the confiscated property or any part thereof to be
sold by public auction or dispose of departmentally.
(12) The Collector or the Authorized Officer shall submit a
full report of all particulars of confiscation to the Excise
Commissioner within twenty-four hours of such
confiscation.
(13) The Collector or the Authorized Officer shall, for the
purposes of this Act, have the same powers as are vested in
the Civil Court under the Code of Civil Procedure, 5 of
1908, while making inquiries under this section in respect of
the following matters namely :-
(a) receiving evidence on affidavit;
(b) summoning and enforcing the attendance of any person
and examining him on oath; and
(c) compelling the production of documents.
Section 72. Bar of other proceedings during pendency of
confiscation proceedings:- Notwithstanding anything
contained in the Code of Criminal Procedure 2 of 1974,
when the Collector or the Authorized Officer or the
Appellate Authority is seized with the matter of confiscation
of any seized property under Section 71, no Court shall
entertain any application in respect of the same property
and the jurisdiction of the Collector or the Authorized
Officer or the Appellant Authority with regard to the
disposal of the same shall be exclusive.
Section 75. Compounding of offences and releasing
property liable to confiscation :- (1) The Collector or any
Excise Officer specially empowered by the State
Government in this behalf, not below the rank of
Superintendent of Excise may, subject to any restrictions as
may be prescribed, accept from any person whose exclusive
privilege, licence, permit or pass is liable to be cancelled or
suspended under clause (a), (b) or (c) of Sub-section (1) of
Section 47 or who is reasonably suspected of having
committed an offence punishable under any section of this
Act other than Sections 55,58,59 and 67, payment of a sum
of money as may be prescribed in lieu of such cancellation
or suspension or by way of composition for such offence, as
the case may be, and in any case in which any property has
been seized being liable to confiscation under Section 71,
may release the property on payment of equal sum of the
prevailing market value thereof as estimated by the
Collector or such Excise Officer : Provided that where such
person intended to evade excise revenue, the sum to be paid
by such person in lieu of cancellation or suspension or by
way of composition for such offence as aforesaid shall in no
case be less than five times of such revenue intended to be
evaded : Provided further that where the property so seized
is a liquor manufactured in contravention of this Act, such
liquor shall not be released but shall be disposed of in such
manner as may be prescribed. (2) When the payments
referred to in Sub-Section (1) have been duly made, the
person, if in custody, shall be discharged, and the property
seized if any, shall be released and no further proceedings
shall be taken against such person or property.
10. A perusal of the proviso to Section 71 (7) reveals that there
is a bar for release of the seized property during pendency of the
confiscation proceedings and perusal of Section - 72 reveals that once
the Collector or Authorised officer is seized with the matter of
confiscation, their jurisdiction will be exclusive with regard to
disposal of the property and no court shall entertain any application in
respect of the same property. Under Section- 75, the Collector or the
Authorised Officer has the power to release such property which is
liable for confiscation vehicle subject to "payment of equal sum of the
prevailing market value thereof as estimated by the Collector or such
Excise Officer".
JUDICIAL PRONOUNCEMENTS
11. The Supreme Court in the case of Sunderbhai Ambala
Desai (supra) has laid down the guidelines for considering an
application for interim custody so that the owner of the article would
not suffer because of it lying unused or by its misappropriation and
court or the police would not be required to keep the vehicle in safe
custody. It has observed as under:-
"7. In our view, the powers under Section 451 Cr.P.C.
should be exercised expeditiously and judiciously. It would
serve various purposes, namely:-
1. Owner of the article would not suffer because of its
remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the
vehicle in safe custody;
3. If the proper panchanama before handing over possession
of article is prepared, that can be used in evidence instead
of its production before the Court during the trial. If
necessary, evidence could also be recorded describing the
nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should
be exercised promptly so that there may not be further
chance of tampering with the articles."
12. This Court in the case of Ghasana Mohapatra (supra)
after setting aside the order of the learned SDJM , rejecting the
application for interim release of the vehicle of the petitioner , had
remanded the matter to the learned SDJM to ascertain if the vehicle in
question had been produced before the officer authorized and
confiscation proceedings initiated and if it was found that the vehicle
had not been produced with a month before the Authorised Officer or
Collector and was not completed within a reasonable period of three
months from the date of appearance of the owner of the vehicle after
receiving notice, the Criminal Courts shall have jurisdiction to
entertain the application under Section 451 and 457 of the Cr.P.C. and
pass appropriate orders, but where the owner was not an accused.
13. This Court in the case of Ashis Ranjan Mohanty (supra), a
PIL filed by an Advocate, has held that directions issued in that case
would prevail in respect of release on vehicles and issued directions
for release of vehicles and articles seized in connection with different
cases.
14. In the case of Manjulata Bhuyan (supra), the petitioner
therein was not an accused in the case, but her application under
Section 457 of the Crl.P.C. for interim release of her Scooty, which
had seized for illegal transportation of 24 litrees of beer, had been
rejected by the learned Magistrate. This Court rejected her prayer for
interim release as confiscation proceedings in respect of the vehicle
had commenced.
15. In the case of Laxmidhar Samal (Supra), the petitioner
(owner of the vehicle) was not an accused in the case.
This Court in the case of Ratnakar Behera (supra), there
was no allegation in the PR against the petitioner who was the owner
of the TATA ACE pick up, it was held that the confiscation
proceedings had not commenced in accordance with law, and the
vehicle was directed to be released in favour of the petitioner.
16. In the case of Kalpana Sahoo, the Court found that there
was nothing to show that the vehicle had been produced before the
Authorised Officer, so it was held that it could not be held that the
Authorised Officer was "seized with the matter of confiscation" for
which the prayer for interim release of the vehicle was allowed.
17. In the case of Sailesh Muduli though the owner was the
accused, when he had filed application for interim release confiscation
proceeding had not been initiated, hence the prayer for interim release
was allowed.
18. In the case of Ram Shankar Maurya (supra), the Gauhati
High Court was deciding a reference whether during pendency of
investigation, power under Section - 451, 457 or 102 of the Cr.P.C.
could be exercised. It was held that seized articles cannot be released
under Section 451 of the Cr.P.C. but under Section 457 Cr.P.C., the
Criminal Court had the jurisdiction to give custody of seized property /
articles at the stage of investigation, when those property are not
produced before the Court.
ANALYSIS
19. It is therefore apparent that this Court in several decisions has
held where the offence is one under the Act, unless the vehicle has
been produced before the Collector or Authorised Officer and / or the
confiscation proceeding has been initiated in accordance with law, the
bar under Section 72 of the Act, shall not apply. It has also been held
that if the owner is an accused, the vehicle cannot be released in his /
her favour.
20. It is true that no useful purpose would be served if a vehicle
seized in connection with any case, even if it is liable for confiscation,
is left in the open, exposed to the vagaries of the elements as its value
will go down. A prayer for interim release can be considered where
confiscation proceedings have not commenced or where there is undue
delay in their completion even if they have commenced.
21. But in the present case, the petitioner is an accused in the case.
Confiscation proceedings in respect of the vehicle have been initiated
and progressed in his absence as he avoided to receive the summons.
As the confiscation proceedings have progressed and steps have been
taken for auction of the vehicle, rejection of the prayer for interim
release will not prejudice the claim of the owner (petitioner) or the
State.
CONCLUSION
22. In view of the aforesaid discussion, since there is a bar in the
Act for interim release of the vehicle once the confiscation proceeding
has been initiated and where the owner of the vehicle is the accused,
and in the present case the petitioner allegedly avoided receipt of the
notice in the confiscation case which has progressed in his absence, I
find no illegality in the impugned order dated 24.01.2024 passed by
the learned SDJM, Jharsuguda in CMA No. 254 of 2023 arising out
C.T. Case No. 1481 of 2023.
23. The CRLREV is accordingly dismissed.
24. The petitioner should be granted opportunity to participate in
the confiscation proceedings, if it is still pending. The result of the
confiscation proceeding shall abide by the final decision in the
Criminal Trial.
...........................
(Savitri Ratho, J)
Orissa High Court, Cuttack.
The 11th July, 2025.
S.K. Behera, Senior Stenographer.
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 11-Jul-2025 16:09:24
