Nabakishore Sahoo vs State of Orissa

A.K. Parichha, J.

The police staff of Banki Station seized one scooter bearing registration No. OR-06-B-0810 from the possession of one Santosh Behera when the said person was transporting illicit liquor in that vehicle. Prosecution was then launched u/s 47(a) of the Bihar and Orissa Excise Act against the said Santosh Behera and the present Petitioner, who is the owner of the scooter.

The Petitioner filed a petition u/s 457, Code of Criminal Procedure before the learned S.D.J.M., Banki for release of the seized scooter in his favour on the plea that he is the registered owner of the vehicle and is totally unconnected with the alleged offence. He also took the plea that the seized scooter is lying in open air in the police station campus and it will be completely damaged if it continues to remain like that. Learned S.D.J.M. rejected the said prayer of the Petitioner with the observation that the Petitioner is involved as an accused in the case and the seized scooter is liable for confiscation. Aggrieved by the said order, the Petitioner has preferred the present revision.

Learned Counsel for the Petitioner submits that the illicit liquor was seized from the possession of Santosh Behera and not from the possession of the Petitioner and so, there is no legal bar for release of the seized scooter in favour of the Petitioner. He further submits that the scooter is lying in open air and its value is deteriorating day by day and to save the vehicle from wastage, it should be given in zima of the Petitioner who is the registered owner of the vehicle.

Learned Addl. Government Advocate, on the other hand, submits that the seized vehicle is involved in an offence under the Excise Act and is liable for confiscation and so, the learned Magistrate was justified in rejecting the prayer for release of the vehicle.

Section 66 of the Bihar and Orissa Excise Act reads thus:

What things are liable to confiscation:(1) Whenever an offence has been committed which is punishable under this Act, the excisable article, materials, still, utensil, implement and apparatus in respect of or by means of which such offence has been committed shall be liable for confiscation.

(2) Any excisable article willfully imported, transported, manufactured possession or sold along with, or in addition to; any excisable article which is liable to confiscation under Sub-section (1);

and the receptacles, packages and covering in which any such excisable article as first aforesaid, or any such materials, still, utensil, implement or apparatus as aforesaid, is found;

and the other contents, if any, or such receptacles or packages;

and the animals, carts, vessels, rafts or other conveyances used in carrying the same;

shall likewise be liable to confiscation;

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.

The Section therefore, clearly says that the vehicle involved in commission of an offence, which is punishable under the Act is liable for confiscation, if the owner of the vehicle has been implicated in the commission of the offence. Section 68 of the Act, which speaks about the power to release property liable for confiscation, reads thus:

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:

(a) 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 u/s 66, may, at any time before the Magistrate has passed an order u/s 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.

So, according to Section 68, Sub-Section 1(b), the Collector or the Excise Officer specially empowered has only the power to release a vehicle seized in connection with an excise offence and liable for confiscation. In other words, a Magistrate sitting on trial of the case has no power to release the seized vehicle if the vehicle is liable for confiscation u/s 66 of the Act. Learned Counsel for the Petitioner cites the case of Soubhagya Kumar Panda v. State of Orissa*, reported in (2003) 25 OCR 840. In the said case it was observed that petition u/s 457 of the Code of Criminal Procedure is maintainable before the Magistrate sitting on trial of the case if the owner of the vehicle in question is not implicated in the offence alleged. In the present case the Petitioner has been arrayed as an accused in the case u/s 47(a) of the Bihar and Orissa Excise Act. So, the ratio in the case of Soubhagya Kumar Panda (supra) is not applicable to the present case.

The seized scooter is involved in an excise offence and the Petitioner who is the owner of the scooter has been named as an accused in that case. According to Section 66 the vehicle is therefore, liable for confiscation. In that situation, the Collector or the Excise Officer, specifically empowered u/s 68 are only competent to release such vehicle and the learned S.D.J.M., Banki was not legally competent to pass orders for interim release of the seized scooter.

Learned Counsel for the Petitioner argues that the scooter is lying in open place at the police station and it would be damaged completely if it continues to remain there and for proper preservation of the vehicle, it should at least be released in favour of the Petitioner till final disposal of the case. He submits that this Court has ample power to pass such interim order.

In view of the submission of the learned Counsel for the Petitioner, it is to be considered as to whether the seized scooter should be released in favour of the Petitioner or not. In the case of Sunderbhai Ambala Desai v. State of Gujarat reported in (2003) 24 OCR (SC) 444 the Supreme Court while dealing with a petition u/s 457, Code of Criminal Procedure observed thus:

In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a log 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.

In view of this observation of the apex Court, whatever may be the situation, a seized vehicle should not be kept in a police station exposed to sun and shower for a long time, but should be released in favour of the registered owner pending final disposal of the case. In the present case, the scooter is allegedly lying in the police station in the open place. So following the ratio laid down by the apex Court, the said vehicle can be released in an interim manner in favour of the Registered owner after obtaining adequate bond and security.

Thus, the seized scooter bearing registration No. OR-06-B-0810 be released in favour of the registered owner till disposal of G.R. Case No. 205 of 2003 after the registered owner furnishes a security bond for Rs. 20,00/- (twenty thousand) and a cash security of Rs. 5,000/- (five thousand) and gives an undertaking that he shall not dispose of that scooter, shall not allow it to be utilized in commission of any offence and shall produce the same in the Court as and when directed.

The revision accordingly stands disposed of.