Orissa High Court
An Application Under Section 482 Of The ... vs State Of Odisha ..... Opposite Parties on 16 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1318 of 2025
An application under Section 482 of the Cr. P.C. challenging the order dated
04.11.2024 passed by the learned JMFC, Jaleswar.
Jaba Murmu ..... Petitioner
-versus-
State of Odisha ..... Opposite Parties
For Petitioners : Mr. Sangram Keshari Mishra,
Advocate
For Opp. Parties : Mr. S. N. Biswal, Addl.
Standing Counsel
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CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
16.05.2025 Savitri Ratho, J. This CRLMC has been filed challenging the order dated 04.11.2024 passed by the learned JMFC, Jaleswar in Misc. Case No. 60 of 2024 (arising out of 2(a)CC No. 60 of 2024) filed by the petitioner under Section 457 of the Cr.P.C. for release of the Honda Activa DLX bearing registration No. OD-11AC-3703, which has been seized in connection with a case under Section 52(a) of the Odisha CRLMC No.1318 of 2025 Page 1 of 21 Excise Act registered against Sunaram Murmu, husband of the petitioner.
2. The application has been rejected on the ground as per provision under Section 52(a) of the Odisha Excise Act, the vehicle is liable for confiscation and as confiscation proceeding had already been initiated, the Court lacked jurisdiction to entertain the petition. PROSECUTION CASE
3. That the prosecution case in brief is that on 17.03.2024 at about 2.55 P.M. the informant along with other staffs were on patrolling duty at the village Luhapada under Raibania Police Station found that one Sunaram Murmu was going by carrying one white colour Jari basta by one blue colour Honda Activa bearing regd. No. OD-11AC-3703 in a suspicious manner. On suspicion they searched and recovered one white colour Jari basta having a black colour motor tube containing 35 liters of I.D. liquor. On demand the accused failed to produce any license or authority against such possession. Police submitted P.R. vide No.248 of 2023-24 punishable U/s 52(a)(i) of the Orissa Excise Act. CRLMC No.1318 of 2025 Page 2 of 21 IMPUGNED ORDER
4. By order dated 04.11.2024, the learned JMFC, Jaleswar rejected the petition U/s-457 of Cr.P.C. of the petitioner. In the impugned order it is stated as follows;
"The record is put up today for passing order on a petition filed U/s.457 of Cr.P.C. by the petitioner to release his Honda ACTIVA DLX OBD2 BS VI "Motor Cycle" bearing Regd. No. OD-11AC-3703, Engine No. JK15EG5247879, Chassis No.ME4JK156JPG247556. Already heard from both the sides.
It is submitted by the learned counsel for the petitioner that, the seized Motor cycle bearing Regd. No. OD-11AC-3703 Engine No. JK15EG5247879, Chassis No.ME4JK156JPG247556 had been seized in connection with 2(a)C.C-85/2024 for the alleged commission of offence u/s. 52(a) of Odisha Excise Act. The present petitioner is the owner of the alleged vehicle. The petitioner further contended that, the seized vehicle is lying in an open place at Excise office, being exposed to sun and rain, for which the condition of the vehicle will deteriorate. Hence, she prayed for release of the seized vehicle in favour of the present petitioner.
On the contrary, learned A.P.P objected to such prayer of the petitioner. The Ld. APP submitted that, the seized vehicle bearing regd. no. OD-11AC-3703 was seized from the CRLMC No.1318 of 2025 Page 3 of 21 exclusive possession of the accused namely Sunaram Murmu who is the husband of the petitioner of this case. The ld. APP further submitted that, the seized vehicle is kept in a safe place and there is no chance of any damage. He further submitted that as per law the vehicle is liable for confiscation. So, prayed for rejection of the petition.
This Misc. Case is an outcome of 2(a).C.C No.85/2024. The said 2(a).C.C No.85/2024 was placed and perused. On perusal of the case record, it is seen that, final P.R has already been submitted for the offence U/s. 52(a) of Orissa Excise Act, 2008 and cognizance has already been taken for the said offence. Also, the report called for from the IO vide dtd. 22.04.2024 reveals that, confiscation proceeding has already been initiated in this case. As per the provision under Section-52(a) of Orissa Excise Act, the said vehicle is liable for confiscation. Step has already been taken for initiation of confiscation proceeding for which this court lacks jurisdiction to entertain the petition which has been filed by the petitioner U/s.457 of Cr.P.C. Hence the petition u/s. 457 of Cr.P.C. stands rejected."
SUBMISSIONS
5. Mr. Mishra, learned counsel for the petitioner submits that the impugned order is liable for interference on the following grounds;
(i) the petitioner was not an accused in the case . CRLMC No.1318 of 2025 Page 4 of 21
(ii) pendency of confiscation proceeding is not a bar for releasing the vehicle in the custody of the petitioner in view of the decisions of this Court and the Supreme Court.
(iii) Sunaram Majhi, husband of the petitioner who is the sole accused, has been acquitted by judgment dated 21st February, 2025 passed in 2aCC No. 85 of 2024/Trial No. 728 of 2024/CIS No. 118 of 2024, by the learned JMFC, Jaleswar.
In support of his submission for release of the vehicle, he relies on the decisions of this Court and the Supreme Court in the case of :-
i) Ashis Ranjan Mohanty vs. State of Orissa: 2022 (1) ILR CTC 495,
ii)State of Odisha vs. Registrar General Orissa High Court: 2022 ( 1) ILR CTC 482,
iii) Sunderbhai Ambala Desai vs. State of Gujurat : (2002) 10 SCC 283;and
iv) Aswini Kumar Das vs. State of Odisha (in CRLMC No. 174 of 2022 decided on 12.08.2022) He further submits that as the vehicle is lying in open in the Excise Office exposed to the elements and miscreants even if final order is passed in the confiscation proceeding, to confiscate the CRLMC No.1318 of 2025 Page 5 of 21 vehicle, no useful purpose will be served as in the meanwhile the vehicle would have been irretrievably damaged and its parts stolen.
6. Mr. S. N. Biswal, learned Additional Standing Counsel fairly submits that in order to protect the condition of the vehicle and as per the decision of the Division Bench of this Court and the decision in the case of Laxman Srinivasan vs Republic of India(CBI) judgment dated 10th April, 2025, as the accused (husband of the petitioner) has been acquitted, the vehicle can be released but she should not change the colour or appearance of the vehicle or alienate the same during pendency of the confiscation proceeding and the release should be subject to any order which may be passed in appeal or revision against Sunram Majhi and in the confiscation case which is still pending.
STATUTORY PROVISIONS
7. Section 71, Section 72 and Section 75 of the Orissa Excise Act are relevant for deciding this case. 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, CRLMC No.1318 of 2025 Page 6 of 21 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 CRLMC No.1318 of 2025 Page 7 of 21 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 CRLMC No.1318 of 2025 Page 8 of 21 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 Commissioner, 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 :CRLMC No.1318 of 2025 Page 9 of 21
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.CRLMC No.1318 of 2025 Page 10 of 21
(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.
CRLMC No.1318 of 2025 Page 11 of 21 JUDICIAL PRONOUNCEMENTS
8. In the case of Sunderbhai Ambala Desai vs. State of Gujurat :
(2002) 10 SCC 283, the Supreme Court has held as follows;
"17. In our view, whatever be the situation, it is of no use to keep such seized vehicles in 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 person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle i:s insured with the insurance company then 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 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. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."CRLMC No.1318 of 2025 Page 12 of 21
In the case of Ashis Ranjan Mohanty vs. State of Orissa: 2022 (1) ILR CTC 495, this Court has held as follows;
"13. It is clarified that hereafter as far as release of the vehicle is concerned, the directions issued in this order would prevail.
14.In light of the decisions of the Supreme Court referred to hereinbefore, and the directions issued in Manjit Singh v. State (supra), the following specific directions are issued:
Articles/properties in general
15.(i) Within one week of their seizure, properties seized by the police during investigation or trial are to be produced before the Court concerned;
(ii) the concerned Court shall expeditiously, and not later than two weeks thereafter, pass an order for its custody in terms of the directions of the Supreme Court in Basavva Kom Dyamangouda Patil v. State of Mysore (1977) 4 SCC 358; Sunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283, and General Insurance Council v. State of A.P. (2010) 6 SCC 768.
(iii) In any event, no property will be retained in the malkhana of the Court or in the police station longer than a period absolutely necessary for the purposes of the case; if it has to be longer than three months, the Court concerned will record the reasons in an order but on no account will the period of retention exceed six months.
CRLMC No.1318 of 2025 Page 13 of 21
(iv) In the event the property seized is perishable in nature, or subject to natural decay, or if cannot for any reason be retained, the Court concerned may, after recording such evidence as it thinks necessary, order the said property to be disposed of by way of sale, as the Court considers proper, and the proceeds thereof be kept in a separate account in a nationalized bank subject to orders of the concerned court. Vehicles
16. As regards the vehicles, the following directions are issued:
(I) Vehicles involved in an offence may be released either to the rightful owner or any person authorised by the rightful owner after
(a) preparing a detailed panchnama;
(b) taking digital photographs and a video clip of not more than 1 minute duration of the vehicle from all angles;
(c) encrypting both the digital photograph and the video clip with a hashtag with date and time stamp with the hash value being noted in the order passed by the concerned court;
(d) preserving the encrypted digital photograph and video clip on a pen drive to be kept in a secure cover in the file and preferably also uploading it simultaneously on a server kept either in the concerned Court premises or in the server of the jurisdictional District Court
(e) preparing a valuation report of the vehicle by an approved valuer;
(f) obtaining a security bond.CRLMC No.1318 of 2025 Page 14 of 21
(II) the concerned court will record the statements of the complainant, the accused as well as the person to whom the custody of the vehicle is handed over affirming that the above steps have taken place in their presence.
(III) Subject to compliance with (I) and (II) above, no party shall insist on the production of the vehicle at any subsequent stage of the case. The panchnama, the encrypted digital photograph and video clip along with the valuation report should suffice for the purposes of evidence. (IV) The Courts should invariably pass orders for return of vehicles and/or accord permission for sale thereof and if in a rare instance such request is refused, then reasons thereof to be recorded in writing should be the general norm rather than the exception.
(V) In the event of the vehicle in question being insured, the concerned Court shall issue notice to the owner and the insurance company prior to disposal of the vehicle. If there is no response or the owner declines to take the vehicle or informs that he has claimed insurance/released his right in the vehicle to the insurance company and the insurance company fails to take possession of the vehicle, the vehicle may be ordered to be sold in public auction.
(VI) If a vehicle is not claimed by the accused, owner, or the insurance company or by a third person, it may be ordered to be sold by public auction.
General directions
17. The following general directions shall also be adhered to:
CRLMC No.1318 of 2025 Page 15 of 21
(i) The concerned Court may impose any other appropriate conditions which it may consider necessary in the facts and circumstances of each case.
(ii) The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused.
(iii) If the Court is of the view that evidence in relation to the condition of the vehicle is necessary to be recorded even before its disposal in terms of the directions in paras 9 and 10 above, then such evidence be recorded, in the presence of the parties, forthwith and prior to disposal of the property.
(iv) Special features of the property in question could be noted in the Court's order itself in the presence of parties or their counsel.
Besides, a mahazar clearly describing the features and dimensions of the movable properties which are the subject matter of trial could be drawn up.
(v) If a person to whom the interim custody of the property/vehicle is granted is ultimately found not entitled to it, and is unable to return it, its value shall be recovered by enforcing the bonds and the security taken from such person or recovering the monetary value from him as arrears of land revenue.
(vi) As regards the directions issued in 16 (I)(c) and (d) is concerned, the Registry of the High Court will communicate to each of the District Judges the detailed Standard Operating CRLMC No.1318 of 2025 Page 16 of 21 Procedure (SoP) that is required to be followed. The directions issued in 16(I) (c) and (d) will become operational as soon as the said SoP is received by the concerned District Judge.
(vii) Similar directions concerning the encryption of digital photographs and video clips will become effective on receipt of the SOP by District Judge from the registry of the High Court." In the case of Aswini Kumar Das ( supra) , this Court has held as follows;
" 14. Apart from the aforementioned inadequacy and incongruity, it is also evident that the vehicle in question has been lying idle in the Rairangpur Excise Station premises, since more than a year. True, Section 71 does not prescribe any time limit for disposal of confiscation proceeding, but then the ratio of the decision of the Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2003) 24 OCR (SC) 444 cannot at all be ignored, wherein it was observed as under:-
"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." It was therefore, incumbent on the concerned authorities to initiate and conclude the confiscation proceeding expeditiously and in any case, within a CRLMC No.1318 of 2025 Page 17 of 21 reasonable period of time, say three months at the earliest. Since the same has not been done, it amounts to acting contrary to the ratio of Sunderbhai (supra)."
15. Thus, from a conspectus of the analysis made herein before, the following position emerges:- (i) The vehicle in question has not been produced before the Authorized Officer.
(ii) The so called confiscation proceeding is no proceeding in the eye of law. (iii) The vehicle is lying unused and exposed to the elements for more than a year. (iv) The bar under Section 72 shall not apply to the case at hand for which the provision under Section 457 of Cr.PC. can be invoked for interim release of the vehicle."
In the case of Registrar General Orissa High Court ( supra) , this Court was dealing with disposal of seized property and articles in NDPS cases .
In the case of Manjulata Bhuyan vs. State of Odisha (CRLMC No. 5221 of 2023) decided on 08.01.2024, his Court has held that once the confiscation proceeding starts, the learned Magistrate loses power to decide any application under Section 457 of Cr.P.C.
In the case of Laxman Srinivasan vs Republic of India(CBI) judgment dated 10th April, 2025, this Court has laid down the guidelines while dealing with power under Section 451 & 457 of the Cr.P.C. for releasing property seized during investigation. In the said CRLMC No.1318 of 2025 Page 18 of 21 matter this Court was dealing with an application for release of cash seized from the account of the petitioner and his wife, but has laid down the principals culled from the decisions of the Supreme Court in the case of Sunderbhai Ambala Desai (supra) and other judgments. The guidelines in respect of seized vehicles are as follows:
"4. Disposal of Seized Vehicles
4. Vehicles that remain impounded in police stations deteriorate in value and become unfit for use. To prevent such depreciation, courts and authorities must ensure their early release by:
Verifying ownership and allowing release to the rightful owner upon submission of a security bond and valid proof of ownership. Ensuring that any legal dispute concerning ownership are resolved efficiently through judicial orders. If a vehicle cannot be immediately returned, it should be stored in a secure facility instead of being left exposed to damage. If the rightful owner is untraceable or the vehicle is linked to a serious crime, the court may order its auction or disposal through appropriate channels after preserving appropriate records and photographs for the process of trial(in case linked to a crime) subjecting the provisions of law."
DISCUSSION AND CONCLUSION
9. Considering the submissions of the learned counsel,the decisions referred to above and as the husband of the petitioner (the accused) has CRLMC No.1318 of 2025 Page 19 of 21 been acquitted, I am satisfied that even if the confiscation proceeding is pending, the vehicle should be released in favour of the petitioner.
10. That apart, as the accused in the case (husband of the petitioner) has been acquitted, the chances of confiscation of the vehicle is bleak. If the vehicle is not released now, its value will diminish resulting in financial loss to the petitioner. So I am satisfied that to prevent miscarriage of justice, the vehicle in question should be released in favour of the petitioner immediately during pendency of the confiscation proceeding.
11. Order dated 04.11.2024 passed in Misc. Case No. 60 of 2024 (arising out of 2(a)CC No. 60 of 2024) passed by the learned JMFC, Jaleswar is therefore set aside and it is directed that the Honda Activa DLX bearing registration No. OD-11AC-3703 shall be released in favour of the petitioner subject to compliance of the following conditions and any other condition which may be imposed in accordance with law :
(i) The petitioner shall produce the original registration certificates, insurance papers before the concerned police station which shall be verified properly, and true attested copies thereof shall be retained by the investigating officer/I.I.C. of the police station.CRLMC No.1318 of 2025 Page 20 of 21
(ii) The petitioner shall not change the colour of any part of the vehicle or engine or tamper with the engine and chassis numbers of the vehicle.
(iii) The petitioner shall give an undertaking to produce the vehicle as and when directed in the confiscation proceedings.
(iv) Subject to any other condition which may be imposed by the learned trial Court.
(v) Taking of digital photographs.
11. This CRLMC is accordingly allowed.
...........................
(Savitri Ratho) Judge Orissa High Court, Cuttack.
The 16th May, 2025/Subhalaxmi Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-May-2025 16:42:35 CRLMC No.1318 of 2025 Page 21 of 21