Orissa High Court
Prabira Sikdar vs State Of Odisha ......... Opposite ... on 25 September, 2019
Equivalent citations: AIRONLINE 2019 ORI 247, (2019) 204 ALLINDCAS 873, (2019) 2 ORISSA LR 910, (2019) 76 OCR 944
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 2010 OF 2018
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with 2(a)C.C. Case No.65 of 2018
pending on the file of S.D.J.M., Jagatsinghpur.
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Prabira Sikdar ......... Petitioner
-Versus-
State of Odisha ......... Opposite party
For Petitioner: - Miss D.R. Nanda
B.B. Mohapatra
B.K. Sahoo
M. Mohanty
For Opposite Party: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 25.09.2019
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S. K. SAHOO, J. In this application under section 482 of the Cr.P.C.,
the petitioner Prabira Sikdar has prayed for quashing the
impugned order dated 18.06.2018 passed by the learned
Sessions Judge, Jagatsinghpur in Criminal Revision No.12 of
2018, whereby the learned revisional Court dismissed the
revision petition and thereby confirmed the order dated
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23.05.2018 passed by the learned S.D.J.M., Jagatsinghpur in
Criminal Misc. Case No.48 of 2018 which arises out of 2(a)C.C.
Case No.65 of 2018.
The facts of the case is that the petitioner who is an
accused in 2(a)C.C. Case No.65 of 2018 along with the co-
accused were transporting cartoons containing liquor in an auto
rickshaw bearing registration No.OD-05-P-3812 on 18.03.2018
and they were intercepted by the complainant who was the S.I.
of Excise, District Mobile Squard, Jagatsinghpur and from the
auto rickshaw, fifteen nos. of cartoons containing liquor bottles
in sealed condition were found. The petitioner was detained but
the co-accused managed to flee away from the spot. Since the
petitioner has failed to produce any authority for transporting the
cartoons carrying liquor bottles, those were seized along with the
auto rickshaw. The petitioner after being released on bail filed a
petition under section 457 of Cr.P.C. before the learned S.D.J.M.,
Jagatsinghpur to release the auto rickshaw and vide order dated
23.05.2018, the learned Magistrate held that since the case has
been instituted under section 52(a) of the Odisha Excise Act for
unlawful possession and transportation of IMFL beer and the
petitioner is the owner of the auto rickshaw in question which is
involved in the alleged offence, he rejected the petition under
section 457 of Cr.P.C. The petitioner being aggrieved by the
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aforesaid order approached the revisional Court in Criminal
Revision No.12 of 2018 and the learned Sessions Judge,
Jagatsinghpur exercising his revisional power held that since
Odisha Excise Act prescribes for confiscation proceeding, the
provision under section 457 of Cr.P.C. is not applicable and
accordingly, rejected the revision petition.
Miss D.R. Nanda, learned counsel for the petitioner
contended that even though the auto rickshaw was seized with
the cartoons of beer bottles on 18.03.2018 but till today no
confiscation proceeding has been initiated as enumerated under
the Odisha Excise Act and therefore, the observation of the
learned revisional Court that the power under section 457 of
Cr.P.C. cannot be invoked is not proper. It is further contended
that a person cannot be left remediless and the entire thing
cannot be left in the mercy of the authority to initiate the
confiscation proceeding and the vehicle being left under the open
air being exposed to sun and rain, its condition is deteriorating
day by day and therefore, it is a proper case where the power
under section 457 of Cr.P.C. should be exercised and since there
is no dispute that the petitioner is the registered owner of the
seized auto rickshaw in question, it should be released in favour
of the petitioner with suitable terms and conditions. She placed
reliance in the cases of Narayan Tripathy -Vrs.- State of
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Orissa reported in (2012) 52 Orissa Criminal Reports 634,
Smt. Jasoda Das -Vrs.- State of Orissa reported in (2003)
26 Orissa Criminal Reports 729, Jugal Kishore Nayak
-Vrs.- The Authorised Officer -cum- Divisional Forest
Officer reported in 2003 (II) Orissa Law Reviews 530 and
Rajkishore Das @ Baidhar -Vrs.- State of Orissa reported
in CLT (2008) Suppl. (Crl.) 1260.
On going through the aforesaid decisions, it is very
clear that if confiscation proceeding has not been initiated before
the competent authority, the Magistrate is not precluded from
exercising jurisdiction under section 457 of Cr.P.C. for delivery of
the property seized to the person entitled for possession thereof.
Learned counsel for the State was asked to obtain
instruction as to whether any confiscation proceeding has been
initiated or not, who after obtaining instruction produced the
letter from the Officer in Charge of Excise, Jagatsinghpur police
station which indicates that no confiscation proceeding has been
initiated against the seized vehicle.
Since no confiscation proceeding has yet been
initiated in accordance with law and the auto rickshaw has been
seized since 18.03.2018 and there is no dispute that the
petitioner is the registered owner of the vehicle in question and
its condition is likely to deteriorate being exposed to sun and rain
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and without proper maintenance, therefore, taking into account
the ratio laid down in the aforesaid decision as well as in the
decisions of the Hon'ble Supreme Court in the case of
Sunderbhai Ambala Desai -Vrs.- State of Gujarat reported
in (2003) 24 Orissa Criminal Reports (SC) 444, I am
inclined to accept the prayer made in this application and direct
release the auto rickshaw bearing registration No. No.OD-05-P-
3812 in favour of the petitioner subject to the following
conditions:-
(i) the petitioner shall produce the original
registration certificate, insurance papers before the
concerned excise authority which shall be verified
properly and true attested copies thereof shall be
retained by the authority;
(ii) the petitioner shall furnish property security
worth of Rs.20,000/- (rupees twenty thousand);
(iii) the petitioner shall keep the vehicle insured at
all times till the conclusion of the trial and produce
the insurance certificates before the trial Court as
and when required;
(iv) the petitioner shall not change the colour or
any part of the engine and chasis numbers of the
vehicle;
(v) the petitioner shall furnish two photographs of
the vehicle before taking delivery of the same;
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(vi) the petitioner shall not transfer the ownership
of the vehicle in favour of any other person;
(vii) the petitioner shall produce the vehicle before
the Court as and when called upon;
(viii) the petitioner shall not allow the vehicle to be
used in the commission of any offence.
Accordingly, the CRLMC application is disposed of.
..............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 25th September 2019/Sisir