[Cites 23, Cited by 0]
Orissa High Court
Constitution Of India) vs State Of Odisha And Others ... Opposite ... on 9 February, 2026
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.37604 of 2025
(In the matter of an application under Article 226 & 227 of the
Constitution of India)
Umesh Patra ... Petitioner
-versus-
State of Odisha and others ... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Ms.Namita Pattanaik, Advocate
For Opposite Parties : Mr.Goutam Tripathy, AGA
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
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Date of Hearing : 29th January 2026
Date of Judgment : 09th February 2026
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B.P. Routray, J.
1. The writ petition has been filed challenging the impugned
orders of the Appellate Authority dated 2nd December 2025 and the
Original Confiscating Authority dated 16th July 2025 in Annexures-2
& 1 respectively.
2. I have heard Ms.Pattnaik, learned counsel for the Petitioner and
Mr.Tripathy, learned Additional Government Advocate for State-
Opposite Parties.
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
3. The Petitioner is the owner of the car bearing Registration
No.OD-11AD-1256 (Maruti Suzik Celerio ZLX) and the vehicle was
seized and confiscated in terms of the proceeding initiated under
Section 71 of the Odisha Excise Act.
4. It is submitted on behalf of the Petitioner that the order of
confiscation passed by the Authorized Officer under Annexure-1 and
then confirmed by the Appellate Authority under Annexure-2 are
suffering from material errors as there is lack of evidence in support
of transportation of alleged excisable article, i.e. 51 liters of illicit
NDP IMFL from possession of the Petitioner in the vehicle, and
secondly, there was no material to satisfy that the same was
transported deliberately by the Petitioner in the vehicle in question.
5. The facts of the case are that when the Petitioner was driving
his vehicle as the owner of the same on 11th April 2025 at about 5:00
AM along with one Kartika Gope, the same was detected by Excise
Officers at Gohira Bridge under Jamda Police Station and found
containing 51 liters of NDP IMFL carried in two bags kept in the
dickey of the car. As such, the illegal liquor was seized and the
Petitioner along with Kartika Gope was arrested for commission of
offences under Sections 52(a)(i), 59 and 63(1) of the Odisha Excise
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
Act, 2008. Upon taking cognizance of the matter by the competent
court, proceeding for initiation of confiscation of the vehicle bearing
Registration No.OD-11AD-1256 was started and notice was sent to
the Petitioner to submit his reply. The Petitioner submitted his reply
stating that such amount of liquor found in the dickey of the vehicle
does not belong to him and it was belonging to the other accused
namely, Kartika Gope. It is stated by the Petitioner that on the alleged
date and time when he was returning to his house situated at village
Tiring, on the way at village Badadalima, said Kartika Gope requested
him to give him lift up to his village and loaded two bags in the
dickey telling that the same are marriage articles required to be
handed over to his relatives. Believing his words, the Petitioner gave
lift to said Kartik Gope in his vehicle along with the containers, which
were subsequently detected to be carrying 51 liters of illicit NDP
IMFL leading to registration of the case and his arrest. It is also the
case of the Petitioner that he bought the vehicle in question prior to
seven/eight months back on finance and if the same would be
confiscated, he would loss his livelihood.
6. Admittedly, the Petitioner is the registered owner of the vehicle
bearing registration no.OD-11AD-1256 (hereinafter referred to as
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
"offending vehicle") and the said vehicle has been seized vide
P.R.No.03/25-26 dated 11th April 2025 and 2(a) CC Case No.165 of
2025 has been registered in respect of the alleged commission of
offences on the file of the S.D.J.M., Rairangpur for illegal possession
and transportation of 51 liters of illicit Non-Duty Paid IMFL (NDP
IMFL). Further, the Petitioner was the alleged driver of the offending
vehicle detected at the time of seizure of the contraband. He is also an
accused along with other co-accused namely, Kartika Gope to stand
his trial in the criminal case registered against them. Section 71 of the
Odisha Excise Act, 2008 authorizes the competent authority to seize
and confiscate all such intoxicant, materials, stills, utensils,
implements, apparatus, receptacles, package, coverings, animals,
carts, vessels, rafts, vehicles, or any other conveyances or articles or
materials used in commission of such offence under the Act. For
better appreciation, the relevant provisions contained in the Excise
Act, 2008 are reproduced below:
"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
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
Collector or any officer of the Excise, Police, Customs or
Revenue Departments.
(b) xxx xxx xxx
(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 the
'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
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
(c) a reasonable opportunity of being heard in the
matter.
xxx xxx xxx
(11) Where the Collector or the authorized officer after
passing an order of confiscation under sub-section (3) is of 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.
xxx xxx xxx
(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, 1908 (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.
xxx xxx xxx
73. Result of criminal proceeding not to affect the order
of confiscation-The result of criminal proceeding, either acquittal
or conviction or otherwise, under the provisions of this Act, will
have no bearing on the order of confiscation passed under this
Act.
xxx xxx xxx
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
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
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."
7. According to the Petitioner, he does not deny his presence and
detection of intoxicant at the time of seizure by the excise officials.
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
But what is contended on his behalf is that such presence or
transportation of the intoxicant of 51 liters of illicit NDP IMFL was
without his knowledge being carried by the passenger namely, Kartika
Gope.
It is submitted on behalf of the Petitioner that he was
completely unaware of such possession of illicit intoxicant by the co-
accused by Kartika Gope in the offending vehicle when he under good
faith lifted said Kartika Gope on the way to drop at his destination.
Thus taking the ground that as it was without his knowledge or
connivance, it is submitted that the commission of alleged offences
cannot be attributed to his guilt and the offending vehicle being the
sole source of livelihood of the Petitioner should be released in his
favour.
8. It needs to mention here that 2(a)CC Case No.165 of 2025
pending on the file of the learned S.D.J.M., Rairangpur is yet to be
adjudicated and the innocence as contended by the Petitioner is yet to
be substantiated in the criminal trial. As per sub-section 5 of Section
71 of the Odisha Excise Act, the onus comes on the parties seeking
release of the vehicle to prove to the satisfaction of the Authorized
Officer that the vehicle in question was used without knowledge or
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
connivance of the parties seeking its release and that he has taken all
reasonable and necessary precautions against such use of the vehicle.
9. Sub-section 1(a) and sub-section 3(2) of Section 71 require that,
when there is reason to believe that any offence under the Act has
been committed and the Authorized Officer is satisfied that an offence
under the Act has been committed in respect thereof, he shall without
prejudice to any other punishment liable to the offender, may order for
confiscation of the vehicle or such other properties, regardless of any
prosecution instituted. Further, Section 73 stipulates that the result of
such criminal proceeding ended either in acquittal or conviction or
otherwise will have no bearing on the order of confiscation passed
under the Act.
10. Thus, the mandate of the Act prescribes that the order of
confiscation of the property used in commission of the offence
including the vehicle would be independent of the criminal liability
established by the competent court of law on the offender. The
difference is that irrespective of the criminal liability on the offender
the liability for confiscation of such property used in commission of
the offences under the Act is to be determined by the Confiscating
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
Authority up to his satisfaction with reasons to believe that such
offences under the Act has been committed.
11. In Nathulal vrs. State of Madhya Pradesh, 2010 SCC
Online MP 822, the Hon'ble Supreme Court has observed that though
a statue may exclude the element of mens rea, but it is a sound rule of
consideration to construe a statutory provision creating an offence in
conformity with the common law rather than against it unless the
statute expressly or by necessary implication excludes means rea. It
was further held that mere fact that the object of the statute is to
promote welfare activities or to eradicate a grave social evil is by
itself not decisive of the question whether the element of guilty mind
is excluded from the ingredients of an offence. Means rea was held to
be permitted to be excluded from a statute by necessary implication
only where it was absolutely clear that the implementation of the
object of the statute would otherwise be defeated.
12. The Hon'ble Supreme Court in Bishwajit Dey vrs. State of
Assam,(2025) 3 SCC 241, while dealing with Sections 60 & 63 of the
Narcotic Drugs or Psychotropic Substances Act, 1989 relating to
confiscation of seized conveyance held that the criminal law has not
to be applied in a vacuum to the facts of the each case. Further, in
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
Danish vrs. State of Tamilnadu, 2025 SCC Online 2276, the Hon'ble
Supreme Court has observed that the power of confiscation is coupled
with a duty to observe procedural fairness and to ensure that no
prejudice is caused to an innocent owner who had neither knowledge
nor willfully participated or connived to commit the offence under the
NDPS Act.
It needs to be mentioned here that the power of confiscation has
vested on the competent authority under the NDPS Act engrafted in
Sections 60(3) and 63 of the said Act. The NDPS Act requires grant of
opportunity of hearing to rightful claimant of the property along with
his right to prove use of the conveyance without his knowledge or
connivance and that he had taken all such reasonable precautions
against such used of the conveyance. It is the same requirement that is
engrafted in sub-section 5 of Section 71 of the Odisha Excise Act.
13. Thus, on analysis of the provisions contained in Section 71 read
with Section 73 & Section 75 of the Odisha Excise Act, it mandates
that for confiscation in respect of property or conveyance for use of
the same in committing the offence under the Act, the authority must
be satisfied with reason to believe that such offence under the Act has
been committed by use of such conveyance and secondly, for release
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
of the same, the claimant has to prove to the satisfaction of authority
that the conveyance was used without his knowledge or connivance
and that he had taken all such reasonable and necessary precautions
against such use.
14. In the present facts of the case, to see as to the satisfaction of
the authority with regard to confiscation of the offending vehicle that
the satisfaction to believe use of the offending vehicle in committing
the offences are not reasonably discussed either in the original order
of the authorized officer or by the appellate authority. Both the
authorities without discussing about their satisfaction to believe use of
the offending vehicle in committing such offences, particularly
pending adjudication of the criminal proceeding before the competent
court of law, have held that the Petitioner has failed to prove his
innocence and he has not proved about all reasonable and necessary
precautions taken by him against use of the vehicle for committing
such offence. It needs to be mentioned here that the confiscating
authority has the power as a quashi judicial body to receive evidence
and enforcing attendance of any person to examine him on oath or
regarding production of necessary documents. The order of the
authorized officer under Annexure-1 does not reveal examination of
Signed by: CHITTA RANJAN BISWAL
Location: Orissa High Court, Cuttack
Date: 09-Feb-2026 17:04:53
any witness except relying on the report of the investigating officer.
Though the Petitioner contested the case appearing through his
lawyer, but has not adduced any such evidence to discharge the onus
on his part, except producing the documents of the vehicle. In such
circumstances, it is felt appropriate to remand the matter back to the
appellate authority to reconsider the appeal afresh.
15. So in the result, the writ petition is disposed of by remanding
back Excise Appeal Case No.31 of 2025 to the Commissioner of
Excise, Odisha, Cuttack to re-hear the matter afresh granting
opportunity of hearing to the Petitioner and prosecution and pass such
order, in accordance with law, speaking the reasons thereof.
( B.P. Routray)
Judge
C.R.Biswal, A.R.-cum-Sr.Seretary
