Orissa High Court
Rajat Kumar Pattnayak vs State Of Orissa on 14 January, 2003
Equivalent citations: 95(2003)CLT307, 2003(I)OLR187
Author: A.K. Patnaik
Bench: A.K. Patnaik, P.K. Misra
JUDGMENT A.K. Patnaik, J.
1.Heard Mr. B. P. Tripathy, learned counsel for the petitioner and Mr. M. K. Mohanty, learned Addl. Govt. Advocate.
2. The petitioner is the owner of a Maruti Van bearing registration No. OR-02-K-7642. The said Maruti Van of the petitioner was seized by the police on the allegation that it was involved in the offences under Section 47 (a)/ 55 of the Bihar and Orissa Excise Act. In connection with the said offences, Aska P.S. Case No. 26 of 2002 was registered (G, R. Case No. 40 of 2002) and the case is pending in the court of the learned J. M. F. C., Aska. The petitioner filed an application under Section 457, Cr. P. C. before the learned J.M.F.C., Aska for release of the said vehicle during the pendency of the case. But the said application was rejected by order dated 8.2.2002. The petitioner moved the learned additional Sessions Judge, Bhanjanagar, in Criminal Revision No. 8 of 2002 but the learned Addl. Sessions Judge declined to exercise revisional power under Sub-section (3) of Section 397 Cr.P.C. Thereafter, the petitioner filed an application under Section 482, Cr.P.C. before this Court numbered as Criminal Misc. Case No. 2478 of 2002. This court disposed of the said application filed under Section 482, Cr.P.C. with the observation that if any further application will be filed by the petitioner under Section 457, Cr.P.C. the learned J.M.F.C., Aska may consider the same in accordance with law and pass appropriate orders and in the event, the learned J.M.F.C., Aska considers to release the seized vehicle then adequate security be obtained and sufficient conditions be imposed so that the vehicle in question shall not be involved in committing similar type of offence. Thereafter, the petitioner again moved the learned J.M.F.C., Aska for release of the said vehicle. But by order dated 3.9.2002 the learned J.M.F.C., Aska rejected the said application after referring to the observation of the Patna High Court in the case of the State v. Ramyas Thakur, AIR 1964 Patna, 416 to the effect that the Magistrate cannot dispose of the seized property liable for confiscation under the Bihar and Orissa Excise Act under Section 523 of the Cr.P.C., 1898 (corresponding to Section 457, Cr.P.C. 1973). Thereafter, the petitioner again filed a revision petition No. 56 of 2002 before the learned Addl. Sessions Judge, Bhanjanagar. But by order dated 12.9.2002, the learned Addl. Sessions Judge, Bhanjanagar dismissed the said revision petition holding that the learned Magistrate has not committed any illegality or irregularity in rejecting the petition for release of the vehicle considering the gravity of the offence and the nature of the case. Aggrieved by the said orders dated 3.9.2002 passed by the learned J.M.F.C., Aska and dated 12.9.2002 passed by the learned Addl. Sessions Judge, Bhanjanagar, the petitioner has moved this Court in the present writ petition under Articles 226 and 227 of the Constitution.
3. Mr Tripathy, learned counsel for the petitioner submitted that the learned Magistrate was not right in coming to the conclusion on the basis of the decision of the Patna High Court in State v. Ramyas Thakur (supra) that the Magistrate has no powers to dispose of the seized property liable for confiscation under the Bihar and Orissa Excise Act under Section 457. Cr.P.C. He cited the decision of a learned Single Judge in Gouri Shankar Sabat v. State of Orissa, (1998) 14 OCR 583 wherein this Court has directed release of a Mini Truck lying exposed to sun and rain in favour of the registered owner of the vehicle on his executing an indemnity bond of Rs. 2,00,000/-(rupees two lakhs) and on other conditions in an offence under the Bihar and Orissa Excise Act. He also relied on the decision of a learned Single Judge of this Court in Charubala Sasmal v. State of Orissa and Anr., 2002 (I) CLR 57 wherein the aforesaid decision of the learned single Judge in Gouri Shankar Sabat (supra) has taken note of and direction has been given for release of the seized vehicle in favour of the petitioner in the said case which had been seized by the excise staff for alleged offence under the Bihar and Orissa Excise Act. Mr. Tripathy has further submitted that the Maruti Van of the Petitioner has been lying with the police since 3.2.2002 and unless the same is released forthwith, the same will deteriorate in quality and may become ultimately a junk.
4. Sections 4 and 5 of the Cr.P.C. 1973 are quoted herein below :
"4. Trial of offences under the Indian Penal Code and other laws : (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise deal with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence".
"5. Saving : Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force".
A bare reading of Sub-section (1) of Section 4, Cr.P.C. would show that all offences under Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure, 1973, but Sub-section (2) of Section 4 makes it clear that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Cr.P.C. but subject to any enactment for the time being in force regulating the manner or place investigating, inquiring into, trying or otherwise dealing with such offences.
5. Section 5 of the of Criminal Procedure, 1973 quoted above would further show that nothing contained in the Code of Criminal Procedure, 1973, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force. Thus, if the Bihar and Orissa Excise Act has made any specific provision for release or any property liable for confiscation and has vested powers on any particular authority to exercise such power of release, the provisions of Section 457 of the Cr.P.C. 1973 conferring power of release of seized vehicle on the Magistrate will not apply. This is what appears to have been held by the Patna High Court in State V. Rarnyas Thakur (supra) cited in the impugned order of the learned Magistrate.
6. Section 67 of the Bihar and Orissa Excise Act confers powers on the Magistrate and the Collector to confiscate the property involved in the offences under the said Act. Section 68 of the Bihar and Orissa Excise Act empowers the Collector any Excise Officer specially empowered by the State Government in that behalf, not below the rank of Deputy Collector or Superintendent of Excise to compound offences and to release property liable to confiscation. The said Section 68 of the Bihar and Orissa Excise Act is quoted herein below : "68. Power to compound offences and to release 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 Deputy Collector or Superintendent of Excise :
(d) may, subject to any restrictions imposed by any rules made under Clause (k) of Section 89, accept from any person whose (exclusive privilege), licence, permit or pass is liable to be cancelled or suspended under Clause (a), Clause (b) or Clause (c) of Section 42, or who is reasonably suspected of having committed an offence punishable under any Section of this Act other than Section 61, payment of a sum of money not exceeding two hundred rupees, in lieu of such cancellation or suspension or by way of composition for such offence, as the case may be; and
(b) in any case in which any property has been seized as being liable to confiscation under Section 66, may, at any time before the Magistrate has passed an order under Section 67, Sub-section (1), release the property on payment of any sum not exceeding the value thereof as estimated by the Collector or such Excise Officer.
(2) When the payments referred to in Sub-section (1) have been duly made, the accused 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".
A reading of Section 68 (1)(b) of the Bihar and Orissa Excise Act shows that the Collector or any Excise Officer so empowered in any case in which any property has been seized is liable to confiscation under Section 66 may at any time before the Magistrate has passed an order under Section 67, Sub-section (1), release the property on payment of any sum not exceeding the value thereof, as estimated by the Collector or such Excise Officer, Thus, the power to release the property seized as being liable to confiscation under Section 67 of the Bihar and Orissa Excise Act is vested in the Collector or any Excise Officer and not on the Magistrate because the Collector and such Excise Officer have been empowered to release the property on payment of any sum not exceeding the value thereof as estimated by the Collector or such Excise Officer. In view of the said special provision in Section 68 of the Bihar and Orissa Excise Act empowering the Collector or Excise Officer to release the property seized as being liable to confiscation under Section 66 of the said Bihar and Orissa Excise Act, the Magistrate obviously has no power under Section 457 Cr. P. C. to release the property which is seized as being liable to confiscation under Section 66 of the Bihar and Orissa Excise Act. The decisions of this Court in the cases of Gouri Shankar Sabat (supra) and Charubala Sasmal (supra) have not taken note of the aforesaid special provisions under Section 68 of the Bihar and Orissa Excise Act.
7. Considering the aforesaid conclusion reached by us, we cannot interfere with the orders passed by the learned J.M.F.C., Aska or the learned Addl. Sessions Judge, Bhanjanagar. But considering the fact that the petitioner's Maruti Van has been lying under seizure since 3.2.2002 and will deteriorate condition if the same is not released forthwith in exercise of power under Article 226 of the Constitution of India, we direct that the Collector, Ganjam will estimate the sum of money which should be deposited by the petitioner under Section 68 (1) (b) of the Bihar and Orissa Excise Act as a condition of release of the said vehicle and will release the said vehicle on payment of the said sum so estimated by the Collector. While taking release of the vehicle, the petitioner obviously will have to execute a bond before the Collector, Ganjam that he will produce the said vehicle as and when required in course of the confiscation or other proceedings under the Bihar and Orissa Excise Act. The vehicle would be released within a period of seven days from the date of deposit of the amount as estimated by the Collector. A further condition will be imposed that in case the said vehicle is found to be used in connection with any offence, the same will be seized in accordance with law forthwith.
8. The Collector, Ganjam be impleaded as opp. party No. 2.
9. The writ petition is accordingly disposed of.
10. Urgent certified copy of this order be granted as per the rules.
P.K. Misra, J.
11. I agree.