Orissa High Court
Bibhuti Bhusan Sahoo vs State Of Odisha ..... Opposite Party on 3 March, 2025
Author: S. K. Panigrahi
Bench: S. K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.34 of 2025
Bibhuti Bhusan Sahoo ..... Petitioner
Represented By
Mr. S. Dwibedi,
Advocate
-versus-
State of Odisha ..... Opposite Party
Mr. Sonak Mishra,
ASC
CORAM:
THE HON'BLE DR. JUSTICE S. K. PANIGRAHI
Order ORDER
No. 03.03.2025
02. 1. This matter is taken up through hybrid
arrangement.
2. Heard, learned counsel for the Petitioner and
learned counsel for the State.
3. This application under Section 442 of the BNSS,
2023 has been filed by the Petitioner with a prayer to
quash the order dated 21.11.2024 passed by the learned
JMFC, Ranpur in Criminal Misc. Case No.62 of 2024 and
to release the vehicle in question arising out of 2(a)CC
Case No.97 of 2024 corresponding to P. R. No.55 of 2024-
25.
Page 1 of 8.
4. Learned counsel for the Petitioner submits that the
court below has rejected the 503 of BNSS, 2023 petition to
release the vehicle to the registered owner on the ground
that the initiation of confiscation proceeding has been
initiated in this case. He further relied upon the decision
in the case of Ratnakar Behera Vrs. State of Odisha
passed in CRLMC No. 985 of 2020 vide order dated
05.08.2020 wherein it has been decided 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".
5. The provision of Section 71 of the Odisha Excise
Act provides that the Investigating Officer must produce
the seized vehicle before the Superintendent of Excise,
Collector (Section 71(2)) or the Authorized Officer for the
initiation of the confiscation proceedings. The Inspector
of Excise is not empowered to initiate a confiscation
proceeding as provided in the Act. This ratio has been
iterated by this Court in paragraphs-4 and 5 of the
judgment in the case of Kalpana Sahoo and Anr. v. State
of Orissa1:
"4. In the cases at hand, the seizures have
been made by the Excise Officer or Police
1
Page 2 of 8.
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 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
Page 3 of 8.
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."
Page 4 of 8.
6. 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.
State2, Mohd. Hanif v. State of U.P3 and Jai Prakash
Sharma vs. State of U.P4 have iterated the same. The ratio
decidendi 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. 2 1986
UPCri 50. 3 1983 UPCr 239. 4 1992 AWC
1744. 7 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 unuseable and un-serviceable for
various obvious reasons."
2
1986 UPCri 50
3
1983 UPCR 239
4
1992 AWC 1744
Page 5 of 8.
7. Further, several jurisdictional High Courts have
decided 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 of its dimension has been laid down by the
Hon'ble Supreme Court in Sunderbhai Ambalal Desai
vs. State of Gujarat5:
"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 5 2002 (10) SCC 283. 8
person, then such vehicle may be ordered
5
2002 (10) SCC 283
Page 6 of 8.
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.
8. Having considered the matter in the aforesaid
perspective and guided by the precedents cited
hereinabove, this Court sets aside the order dated
21.11.2024
, passed by the learned JMFC, Ranpur in
Criminal Misc. Case No.62 of 2024 and allows the
prayer of the petitioner on the following conditions:
(a) The petitioner is directed to make the
vehicle available as and when required during
investigation of the case and thereafter in the
court concerned.
(b) The petitioner is directed not to make any
changes or any variation to the vehicle during the
pendency of the trial in the court concerned.
(C) The Petitioner shall furnish property/cash
security of Rs.30,000/- (rupees thirty thousand).
9. However, it is made clear that any of the
observation made hereinabove with respect to the fact
of the case, shall not come in the way or prejudicially
affect the fair trial of the present case.
10. With the aforesaid reasons, this CRLREV stands
disposed of.
11. Issue urgent certified copy as per rules.
(Dr. S. K. Panigrahi)
Judge
Gitanjali
