Orissa High Court
Soubhagya Kumar Panda And Ugam Nath vs State Of Orissa on 2 May, 2003
Equivalent citations: 96(2003)CLT78, 2003(II)OLR52
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Criminal Revision No. 129 of 2003 is directed against the order dated 10.1. 2003 passed by the learned S.D.J.M., Anandapur in G.R. Case No, 437 of 2002 (T.C. No. 7 of 2002) rejecting the prayer of the petitioner for release of a motor-cycle under Section 457 of the Code of Criminal Procedure.
2. From the impugned order it appears that the said motorcycle hearing registration No. OR-04-C-1061 had been used by the accused persons for transporting I.D. liquor in two plastic jar each containing 20 litres. The vehicle having been seized in connection with commission of offence under Section 47 (a) of the Bihar and Orissa Excise Act, the learned Magistrate rejected the petition on the ground that the Criminal Court had no jurisdiction to entertain the application under Section 457, Cr.P.C. for release of the vehicle.
3. Criminal Revision No. 150 of 2003 is directed against the order dated 16.1.2003 passed by the learned J.M.F.C., Sohella in 2(a) C.C. No. 61 of 2002 (Crl.Tr. No. 2997 2002) rejecting the prayer of the petitioner for release of a truck bearing registration No. M.P. 09-KB-5772 since the vehicle was used for commission of the offence under Section 47(a) of the Bihar and Orissa Excise Act and found carrying I.M.F.L. liquor. The learned Magistrate rejected the petition on merit.
4. In course of hearing of the revisions, it was contended by the learned counsel for the petitioners appearing in both the cases that though a Division Bench of this Court in the case of Rajat Kumar Pattnayak v. State of Orissa reported in (2003) 24 OCR 426 has held that Section 457 of the Code of Criminal Procedure shall have no application in cases where the vehicle is seized on the ground that it was used for commission of offence under the Bihar and Orissa Excise Act and that the Collector has the power to direct release of the vehicle, the Division Bench has not considered Section 66 of the Act and decide as to which court will have the power to release a vehicle, if the owner thereof is not an accused in the case. Since both the revisions raise a common question of law, they were heard together.
5. In the case of Rajat Kumar Pattnayak (supra) the owner of the Maruti van bearing registration No. OR-K-7642 had approached the learned Magistrate for release of the vehicle under Section 457, Cr.P.C. The said petition was reflected since the vehicle was involved in commission of offence under Section 47(a)/55 of the Bihar and Orissa Excise Act. The revision carried to the Sessions Court was also dismissed and thereafter an application was filed by the owner under Section 482, Cr.P.C. for release of the vehicle. The Division Bench considering Sections 67 and 68 of the Bihar and Orissa Excise Act held as follows :
"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 said Bihar and Orissa Excise Act. The decisions of this Court in the cases of Gouri Shankar Sabat (supra) and Charubala Samal (supra) have not taken note of the aforesaid special provisions under Section 68 of the Bihar and Orissa Excise Act."
6. Section 67 of the Bihar and Orissa Excise Act, 1915 prescribes that when, in any case tried by him, the Magistrate decides that anything is liable to confiscation under Section 66, he may either order confiscation or give the owner of such thing an option to pay, in lieu of confiscation, such fine as the Magistrate thinks fit. Sub-section (2) of Section 67 prescribes that whenever anything is liable to confiscation under Section 66, and the offender or the person entitled to possession is not known or cannot be found, the case shall be enquired into and determined by the Collector, who may order confiscation subject to two provisos of the said Sub-section. Section 68 empowers the Collector to compound the offence and to release properties which are liable for confiscation. Section 66 of the Act prescribes the materials which are liable for confiscation: Proviso to Sub-section (2) of Section 66 runs as follows.
"66. What things are liable to confiscation :
*** *** *** (2) *** *** ***
Provided that no animal, cart, vessel, raft or other conveyance as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence."
7. Relying on the aforesaid proviso, it is argued that when the owner is not an accused in the case, the question of confiscation shall not arise and, therefore, when a property is not liable for confiscation, the Collector has no power under Section 68 to release the same and it lies with the learned Magistrate under Section 457, Cr.P.C. There appears to be some force in such contention which has not been taken note of by the Division Bench in the aforesaid decision. Section 68 empowers the Collector to release the properties which are liable for confiscation. If a property is not liable for confiscation, the Collector cannot exercise the power under Section 68 of the Act. Since proviso to Sub-section (2) of Section 66 clearly provides that no animal, cart, vessel, raft or other conveyance as aforesaid shall be liable for confiscation unless the owner thereof is proved to have been implicated in the commission of the offence, in a given case where the owner is not an accused, there may not an order for any confiscation and accordingly the Collector cannot exercise the power under Section 68 of the Act. In both the revisions the respective owners of the vehicles are not accused persons as submitted by the learned counsel for the State as well as the petitioners. Therefore, when the respective owners of the vehicles are not accused persons in the respective cases, proviso to Sub-section (2) of Section 66 shall have application. Since the Division Bench of the Court has not answered the question as to whether in such a case the Magistrate can exercise the power under Section 457 or not, I think that both the revisions should be placed before a Larger Bench for consideration of the issue. In this connection, another decision of the Apex Court in the case of Sundarbhai Ambala Desai v. State of Gujrat reported in (2003) 24 OCR (SC) 444 may also be looked into. The Apex Court while considering the Sections 451 and 457 of the Criminal Procedure Code has given guidelines to be followed by the Magistrates while dealing with Section 451 or 457, Cr.P.C. in respect of valuables, currency notes and vehicles. In paragraph 21 of the judgment the Apex Court has held as follows :
"However, these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly."
8. In view of what has been observed by the Apex Court as indicated above, whether it can be said that the general observation made by the Apex Court can also be applied in a case under the Bihar and Orissa Excise Act.
9. This matter may be placed before a Larger Bench with permission of the Hon'ble the Chief Justice.